George Neloms v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 13 2017, 6:32 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ana M. Quirk Curtis T. Hill, Jr.
Muncie, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
George Neloms, December 13, 2017
Appellant-Defendant, Court of Appeals Case No.
18A05-1705-CR-1007
v. Appeal from the Delaware Circuit
Court
State of Indiana, The Honorable Marianne Vorhees,
Appellee-Plaintiff. Judge
Trial Court Cause No.
18C01-1605-F3-19
Bailey, Judge.
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Case Summary
[1] Following a bench trial, George Neloms (“Neloms”) was convicted of
Possession of a Narcotic Drug, as a Level 3 felony. 1 He now appeals.
[2] We affirm.
Issues
[3] Neloms presents the following restated issues:
I. Whether there is sufficient evidence to support his
conviction; and
II. Whether the trial court abused its sentencing discretion.
Facts and Procedural History
[4] On May 6, 2016, Neloms was traveling in a van with William Jackson
(“Jackson”) and James Tabb (“Tabb”). During the trip, Neloms ingested
heroin, and Tabb eventually received a call from someone seeking to purchase
heroin in Muncie. Jackson drove to the planned location of the sale, and Tabb
sold heroin from the back of the van. Meanwhile, Officer Tyler Swain (“Officer
Swain”) of the Muncie Police Department was conducting surveillance as part
of an ongoing narcotics investigation concerning Tabb. Officer Swain later
1
Ind. Code §§ 35-48-4-6(a), -4-6(d)(1).
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requested assistance with stopping the van, and officers Keith Benbow (“Officer
Benbow”) and Richard Howell, Jr. (“Officer Howell”) responded.
[5] Officer Howell initiated a stop, and Jackson pulled over. As Officer Howell
began approaching the van, Jackson drove off and stopped again about thirty
yards down the road. All three officers then drew their guns and approached
the van, with Officer Howell moving toward the driver’s door and Officer
Swain and Officer Benbow approaching the passenger side. Jackson again
drove off, at which point Officer Swain leapt onto the van’s running boards and
fired his gun through a side window. The van swerved to the left, and Officer
Swain tumbled to the ground. Both Officer Howell and Officer Benbow
checked on Officer Swain, who motioned to them to keep pursuing the van.
[6] By the time Officer Howell and Officer Benbow reached the van, they found it
stopped and unoccupied. Nearby, they saw Neloms, who was lying partly in
the road and partly in the grass. Officer Howell left to pursue Jackson and
Tabb, while Officer Benbow approached Neloms. Officer Benbow saw Neloms
holding several plastic bags in his left hand, and Officer Benbow removed the
bags while checking Neloms for weapons and for injury. Officer Benbow then
arrested Neloms, and Officer Howell eventually arrested Tabb and secured
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Jackson, who had been shot in the arm. It was later determined that the plastic
bags collectively contained more than 28 grams of heroin.2
[7] The State charged Neloms with Possession of a Narcotic Drug, as a Level 3
felony, and Resisting Law Enforcement, as a Class A misdemeanor.3 At the
beginning of a bench trial on February 21, 2017, the trial court dismissed the
misdemeanor count upon the State’s motion, and Neloms was later found
guilty of the felony narcotics charge. Following a sentencing hearing, the trial
court imposed a nine-year sentence, and recommended that Neloms be placed
in the Purposeful Incarceration program through the Indiana Department of
Correction.
Discussion and Decision
Sufficiency of the Evidence
[8] When reviewing the sufficiency of evidence to support a conviction, we look
only at the probative evidence and reasonable inferences supporting the
conviction. Love v. State, 73 N.E.3d 693, 696 (Ind. 2017). We neither reweigh
the evidence nor assess the credibility of witnesses, and “will affirm the
2
At trial, the parties jointly proffered an exhibit to establish the weight and identity of the substance in the
bags.
3
I.C. § 35-44.1-3-1(a)(3).
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conviction unless no reasonable fact-finder could find the elements of the crime
proven beyond a reasonable doubt.” Id.
[9] To convict Neloms of Possession of a Narcotic Drug as charged, the State was
obligated to prove beyond a reasonable doubt that Neloms knowingly or
intentionally possessed at least 28 grams of heroin. See I.C. §§ 35-48-4-6(a), -4-
6(d)(1). At trial, Officer Benbow testified that he found Neloms holding three
plastic bags, and it was later determined that those bags contained more than 28
grams of heroin. Moreover, Neloms admitted to ingesting heroin in the van,
and to being present while heroin was sold from the van. Although Neloms
now directs us to conflicting testimony, our standard of review precludes us
from reweighing the evidence. Rather, there is sufficient evidence to support
the conviction.
Abuse of Discretion
[10] Neloms contends that the trial court abused its discretion in imposing a
sentence of nine years, which is the advisory sentence for a Level 3 felony. See
I.C. § 35-50-2-5(b). Sentencing decisions are within the discretion of the trial
court and are reviewed on appeal for an abuse of discretion. Anglemyer v. State,
868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007).
As a general matter, an advisory sentence is a “guideline sentence” selected by
our legislature, I.C. § 35-50-2-1.3, and “we view the advisory sentence as a
helpful guidepost for ensuring fairness, proportionality, and transparency in
sentencing.” Hamilton v. State, 955 N.E.2d 723, 726 (Ind. 2011). Moreover, we
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have observed “that a defendant should bear a particularly heavy burden to
prove that a trial court abused its discretion by imposing an advisory sentence.”
Golden v. State, 862 N.E.2d 1212, 1216 (Ind. Ct. App. 2007), trans. denied.
[11] A trial court abuses its sentencing discretion if its decision is clearly against the
logic and effect of the facts and circumstances before the court, or the
reasonable, probable, and actual deductions to be drawn therefrom. Id. In
sentencing a defendant, the trial court must enter a sentencing statement that
includes “reasonably detailed reasons or circumstances for imposing a
particular sentence,” id. at 491, and Indiana Code Section 35-38-1-7.1 provides
a non-exhaustive list of potential aggravating or mitigating circumstances.
“The reasons given, and the omission of reasons arguably supported by the
record, are reviewable on appeal for abuse of discretion,” however “[t]he
relative weight or value assignable to reasons properly found or those which
should have been found is not subject to review for abuse.” Anglemyer, 868
N.E.2d at 491. Moreover, if the trial court has abused its sentencing discretion,
we will remand only “if we cannot say with confidence that the trial court
would have imposed the same sentence had it properly considered reasons that
enjoy support in the record.” Id.
[12] Neloms first argues that the trial court abused its sentencing discretion by
failing to identify a particular mitigating circumstance: that Neloms had
requested drug treatment. Where, as here, a sentencing statement “includes a
finding of aggravating or mitigating circumstances, then the statement must
identify all significant mitigating and aggravating circumstances and explain why
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each circumstance has been determined to be mitigating or aggravating. Id. at
490 (emphasis added). Nevertheless, the trial court is not obligated to explain
why it has not found a circumstance to be significant. See id. at 493. Moreover,
when the defendant alleges that the trial court improperly failed to identify a
particular mitigating factor, the defendant must “establish that the mitigating
evidence is both significant and clearly supported by the record.” Id.
[13] Here, the trial court expressly declined to treat the circumstances of Neloms’s
addiction as a mitigating factor, observing that Neloms “could have addressed
his drug issues voluntarily or while on supervised probation” in an Illinois case
involving possession of a controlled substance. App. Vol. III at 24. Moreover,
the trial court observed that Neloms has “a long history with heroin and has
had many opportunities to rehabilitate himself” but “has not taken advantage of
them.” Id. Thus, we cannot say that the trial court abused its discretion when
it did not consider the treatment requests to be a significant mitigating factor.
[14] Neloms next argues that the trial court improperly identified drug dealing as an
aggravating circumstance when the trial court made the following remark: “The
nature of the offense supports at least the advisory sentence. Dealing drugs and
possessing large quantities of drugs presents a danger to the community.” Id.
Neloms points out that he “was never charged with dealing drugs” and that
“[t]here was no evidence presented during the trial that [he] was engaged in
dealing drugs.” Appellant’s Br. at 24.
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[15] We note that the trial court did not include this statement in its enumerated list
of “Circumstances Supporting an Enhanced Sentence,” App. Vol. III at 23, and
appears to have made the observational remark while balancing the factors and
evaluating the appropriateness of the advisory sentence. Nonetheless, even if
the trial court attributed aggravating weight to the particularized circumstances
of the crime, it would not have been improper to do so. See I.C. § 35-38-1-7.1
(providing a non-exhaustive list of matters the trial court may consider in
determining a sentence). Indeed, the trial court’s statement was accurate, in
that Neloms was present during a drug transaction that led to a dangerous
pursuit—a pursuit during which Officer Swain was thrown from a moving van,
Jackson was shot, and Neloms was left lying by the road holding bags of
heroin. Thus, we are not persuaded that the trial court abused its discretion by
remarking about the circumstances of the crime.
Conclusion
[16] The evidence is sufficient to support the conviction. The trial court did not
abuse its sentencing discretion.
[17] Affirmed.
Kirsch, J., and Pyle, J., concur.
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