Todd Norman 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 Aug 10 2017, 8:43 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Leanna Weissmann Curtis T. Hill, Jr.
Lawrenceburg, Indiana Attorney General of Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Todd Norman, August 10, 2017
Appellant-Defendant, Court of Appeals Case No.
69A05-1611-CR-2661
v. Appeal from the Ripley Circuit
Court
State of Indiana, The Honorable Ryan King, Judge
Appellee-Plaintiff. Trial Court Cause No.
69C01-1602-F2-1
Barnes, Judge.
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Case Summary
[1] Todd Norman appeals his conviction for Level 2 felony possession of
methamphetamine with the intent to deliver. We affirm.
Issues
[2] Norman presents three issues on appeal, which we restate as:
I. whether the trial court abused its discretion by allowing
the State to question Norman about his missing cell
phone;
II. whether the State presented sufficient evidence to convict
Norman of Level 2 felony possession of
methamphetamine with the intent to deliver; and
III. whether the sentence imposed was inappropriate in light of
the nature of the offense and the character of the offender.
Facts
[3] On February 17, 2016, Versailles Town Marshall Joseph Mann and Ripley
County Probation Officer Ethan Back conducted a routine probation visit at
Norman’s home. After some time had passed, Norman opened the door and
allowed the officers to enter. Upon entering, Officer Back noticed alcohol
inside Norman’s home, which violated the terms of his probation and gave the
officers a reason to inspect the home further. Marshall Mann discovered a bag
that contained a white crystalline substance under a couch cushion. The
substance was later identified as 12.59 grams of methamphetamine. Mann
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testified that this amount equals about 125 individual uses of the drug. After
the discovery of methamphetamine, Mann contacted the Batesville Police
Department, and Batesville Detective Blake Roope arrived on the scene. Mann
then discovered a digital scale that contained residue similar in appearance to
methamphetamine. Detective Roope decided not to have the residue on the
scale tested. Officer Back and Detective Roope later observed a blue container
sitting on a ladder inside one of Norman’s rooms. Eight thousand dollars in
cash was found inside the container. Officers also found $500 inside Norman’s
pockets.
[4] On February 18, 2016, the State charged Norman with Level 2 felony
possession of methamphetamine with the intent to deliver and Level 4 felony
possession of methamphetamine. On August 22, 2016, the State filed a motion
to amend the Level 2 felony charge and dismiss the Level 4 felony charge. The
trial court granted the motion, and a jury trial was held on August 23-24, 2016.
During the trial, Mann testified that drug dealers often use scales to measure
product intended for sale. He also testified that buyers of illegal substances
typically use cash for their transactions. Mann also stated that
methamphetamine is typically packaged in half gram to one gram quantities,
but that it is not unusual to see it packaged in quantities of three to three-and-
one-half grams. Mann also testified that a gram of methamphetamine typically
costs $100 and three grams cost between $225 and $250. He also testified that
dealers of illegal substances typically keep digital records of sales on phones and
other electronic devices.
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[5] Norman testified in his own defense that the methamphetamine found in his
home did not belong to him but that he entertains friends often and one of them
could have left it. Norman also testified that he plays darts competitively and
uses the scale to measure the weight of the darts. On cross-examination, the
State questioned Norman about his missing cell phone; Norman objected to this
questioning. The trial court overruled the objection. Norman then testified that
his phone was missing. He also testified that he remembered talking to his
sister about the phone, but he denied asking her to destroy it. Norman stated,
“That’s, I don’t know if I, I don’t know exactly what I said, but it wasn’t
nothing that drastic.” Tr. Vol. III p. 235. Norman claimed that he did not trust
banks and as such withdrew his paychecks every month. He also testified that
he had recently made a cash withdrawal to buy a new television set.
[6] The jury found Norman guilty of Level 2 felony possession of
methamphetamine with the intent to deliver. The trial court sentenced Norman
to twenty-seven-and-one-half years in the Department of Correction with five
years suspended to probation. Norman now appeals.
Analysis
I. Admission of Evidence
[7] Norman argues that the trial court abused its discretion in allowing the State to
question him about his missing cell phone. We review the admission of
evidence for an abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272
(Ind. 2002). An abuse of discretion occurs “where the decision is clearly
against the logic and effect of the facts and circumstances.” Smith v. State, 754
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N.E.2d 502, 504 (Ind. 2001). In reviewing the admissibility of evidence, we
consider only the evidence in favor of the trial court’s ruling. Whiteside v. State,
853 N.E.2d 1021, 1025 (Ind. Ct. App. 2006).
[8] Norman contends that the State made a “tenuous connection by implying a lost
cell phone might have shown evidence of drug dealing,” arguing that the
testimony “bore no relevance to Norman’s intent concerning the bag of
methamphetamine.” Appellant’s Br. p. 16. Indiana Evidence Rule 401(a)
provides that, “evidence is relevant if: it has any tendency to make a fact more
or less probable than it would be without the evidence.” The State presented
testimony that dealers of illegal substances often keep records of sales on their
cell phones. The State questioned Norman as to whether he had asked his
sister to destroy his cell phone to hide such evidence. Although Norman denied
the allegations, he acknowledged that a cell phone does have the ability to store
information from texts and emails and that his phone was missing.
[9] Norman also argues that, even if the evidence had relevance, “The implication
that Norman destroyed evidence of wrongdoing came with too great a risk of
prejudice.” Appellant’s Br. p. 16. Evidence Rule 403 provides, “The court may
exclude relevant evidence if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, or needlessly presenting cumulative
evidence.” “All relevant evidence is inherently prejudicial in a criminal
prosecution.” Carter v. State, 766 N.E.2d 377, 382 (Ind. 2002), reh’g denied.
“The trial court has wide latitude, however, in weighing the probative value of
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the evidence against the possible prejudice of its admission.” Goldsberry v. State,
821 N.E.2d 447, 455 (Ind. Ct. App. 2005) (quoting Evans v. State, 727 N.E.2d
1072, 1079 (Ind. 2000)). The State’s questioning of Norman about his cell
phone was not unduly prejudicial. Norman contends that, “The State implied
that Norman actively worked to destroy his cell phone to cover up his illegal
activities.” Appellant’s Br. p. 18. However, when questioned about his missing
phone, he did not admit that his phone contained any evidence of drug dealing
and further denied asking his sister to destroy it. The probative value of the
testimony was not substantially outweighed by unfair prejudice.
[10] Finally, Norman also contends that the trial court abused its discretion in
allowing this evidence because it was improper evidence of a bad act.
Specifically, Norman argues that, “The State used the missing cell phone to
plant a seed in jurors’ minds that the phone had been destroyed because it
contained evidence of drug dealing.” Id. at 15. Evidence Rule 404(b)(1)
provides that, “Evidence of a crime, wrong, or other act is not admissible to
prove a person’s character in order to show that on a particular occasion the
person acted in accordance with the character.” This kind of evidence is
admissible, however, if it is used to prove “motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
See Ind. Evidence Rule 404(b)(2). The rationale for the prohibition against bad
act and character evidence is that the jury is precluded from making the
forbidden inference that the defendant had a criminal propensity and therefore
engaged in the charged conduct. Duvall v. State, 978 N.E.2d 417, 423 (Ind. Ct.
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App. 2012), trans. denied. “A trial court faced with a 404(b) question must: (1)
decide if the evidence of other crimes, wrongs, or acts is relevant to the matter
at issue other than the defendant’s propensity to commit the charged act; and
(2) balance the probative value of the evidence against its prejudicial effect
pursuant to Rule 403.” Hicks v. State, 690 N.E.2d 215, 219 (Ind. 1997).
[11] There is nothing inherently wrong or criminal about destroying one’s own cell
phone. Standing alone, it would not be evidence of Norman’s “propensity” to
engage in methamphetamine dealing or criminal conduct more generally. The
only sense in which Norman’s destruction of his cell phone could be labeled a
“bad act” is if it implied he was attempting to conceal evidence of drug dealing.
As a general rule, evidence of a defendant’s attempts to conceal evidence is
admissible as revealing consciousness of guilt. Bennett v. State, 787 N.E.2d 938,
946 (Ind. Ct. App. 2003), trans. denied; Robinson v. State, 720 N.E.2d 1269, 1272
(Ind. Ct. App. 1999). See also Larry v. State, 716 N.E.2d 79, 81 (Ind. Ct. App.
1999) (holding evidence that defendant battered witness and called him a
“snitch” was admissible under Evidence Rule 404(b) as evidence of
“knowledge” or consciousness of guilt). In sum, the trial court did not abuse its
discretion in allowing evidence regarding destruction of Norman’s cell phone; it
was admissible under Evidence Rules 401, 403, and 404(b).
II. Sufficiency of Evidence
[12] Norman argues that the evidence was insufficient to sustain his conviction for
possession of methamphetamine with the intent to deliver. When reviewing a
claim of insufficient evidence, we neither reweigh evidence nor judge the
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credibility of witnesses. Rutherford v. State, 866 N.E.2d 867, 871 (Ind. Ct. App.
2007). We consider only the evidence favorable to the judgment and any
reasonable inferences to be drawn therefrom. Glotzbach v. State, 783 N.E.2d
1221, 1226 (Ind. Ct. App. 2003). We will affirm a conviction unless we
conclude that no reasonable fact-finder could find the elements of the crime
proven beyond a reasonable doubt. Stokes v. State, 922 N.E.2d 758, 763 (Ind.
Ct. App. 2010), trans. denied.
[13] Pursuant to Indiana Code Section 35-48-4-1.1, a person who possesses
methamphetamine with the intent to deliver commits a Level 2 felony if “the
amount of the drug involved is at least ten grams.” Norman argues that,
although the State presented evidence that he possessed more than ten grams of
methamphetamine, the evidence to prove intent to deliver was “weak
circumstantial evidence showing a suspicious possibility, but not a legal
certainty.” Appellant’s Br. p. 22. The mental state of intent can only be
established by considering the behavior of the relevant actor, the surrounding
circumstances, and the reasonable inferences to be drawn therefrom. Richardson
v. State, 856 N.E.2d 1222, 1227 (Ind. Ct. App. 2006), trans. denied. As a general
premise, possession of a large amount of a narcotic substance is circumstantial
evidence of intent to deliver. Cline v. State, 860 N.E.2d 647, 650 (Ind. Ct. App.
2007). The higher the amount of narcotics found in a person’s possession, the
stronger the inference that he intended to deliver it and not consume it
personally. Id. See Davis v. State, 791 N.E.2d 266, 270 (Ind. Ct. App. 2003),
trans. denied. Other circumstances that may support a finding of drug dealing
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instead of mere possession include the defendant’s possession of a large amount
of cash and indicia of dealing, such as scales. See Hape v. State, 903 N.E.2d 977,
997-98 (Ind. Ct. App. 2009), trans. denied; Richardson, 856 N.E.2d at 1227-28.
[14] Mann testified that methamphetamine is usually sold in half gram to one gram
quantities for a typical user. Mann also testified that some users buy “eight
ball” quantities of methamphetamine, which usually contain three to three-and-
one-half grams. Tr. Vol. III p. 37. He also testified that scales are typically
used to weigh the product for sale and that buyers of illegal substances typically
use cash for their purchases. Norman had 12.59 grams of methamphetamine,
which equals approximately 125 uses of the drug, $8,500 in cash, and a scale
with residue similar in appearance to methamphetamine in his possession. The
State presented sufficient evidence to sustain his conviction.
III. Inappropriate Sentence
[15] We now assess whether Norman’s sentence is inappropriate in light of the
nature of the offense and the character of the offender under Indiana Appellate
Rule 7(B). See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on
reh’g, 875 N.E.2d 218 (Ind. 2007). Although Rule 7(B) does not require us to be
“extremely” deferential to a trial court’s sentencing decision, we still must give
due consideration to that decision. Rutherford, 866 N.E.2d at 873. We also
understand and recognize the unique perspective a trial court brings to its
sentencing decisions. Id. “Additionally, a defendant bears the burden of
persuading the appellate court that his or her sentence is inappropriate.” Id.Court of Appeals of Indiana | Memorandum Decision 69A05-1611-CR-2661 | August 10, 2017 Page 9 of 12
[16] The principal role of Rule 7(B) review “should be to attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged
with improvement of the sentencing statutes, but not to achieve a perceived
‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). We “should focus on the forest—the aggregate sentence—rather than
the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count.” Id. Whether a sentence is inappropriate
ultimately turns on the culpability of the defendant, the severity of the crime,
the damage done to others, and a myriad other factors that come to light in a
given case. Id. at 1224. When reviewing the appropriateness of a sentence
under Rule 7(B), we may consider all aspects of the penal consequences
imposed by the trial court in sentencing the defendant, including whether a
portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,
1025 (Ind. 2010).
[17] The advisory sentence is the starting point to determine the appropriateness of
the sentence. See Anglemyer, 868 N.E.2d at 494. Pursuant to Indiana Code
Section 35-50-2-4.5, a conviction of a Level 2 felony is punishable by ten to
thirty years in prison, with an advisory sentence of seventeen and one-half
years. Norman’s sentence was above the advisory but below the maximum
sentence available. The trial court also suspended five years of his sentence to
probation.
[18] In regard to the nature of the offense, Mann and Officer Back went to
Norman’s residence to conduct a routine probation visit. When Norman finally
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answered the door, Officer Back immediately observed several containers of
alcohol, which prompted a more extensive search. Mann discovered 12.59
grams of methamphetamine and a scale with residue similar in appearance to
methamphetamine. The amount of methamphetamine equaled approximately
125 individual uses and was worth over $1,200. Officers also found $8,500 in
cash. The evidence most favorable to the verdict indicates that Norman was
engaged in a significant drug dealing operation. Norman has not persuaded us
that the nature of his offense warrants a revised sentence.
[19] As for the character of the offender, Norman argues that, although he has a
criminal history, most of his convictions stem from his addiction to alcohol and
drugs. Norman has misdemeanor convictions for resisting law enforcement,
operating a vehicle while intoxicated endangering a person, animals running at
large, utility tampering, and public intoxication. Norman also has been
convicted of felony operating a vehicle while intoxicated and operating a
vehicle as a habitual traffic violator. He was on probation at the time he
committed the current offense, and he has had numerous probation violations
in the past. Not only did he violate probation with the current offense, but
officers also found alcohol in his home, and he tested positive for
methamphetamine.
[20] We also consider Norman’s history of alcohol and drug use. Although we
recognize that a history of substance abuse may be a mitigating circumstance,
where a defendant is aware of a substance abuse problem but has not taken
appropriate steps to treat it, substance abuse does not weigh in favor of a lesser
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sentence. See Marley v. State, 17 N.E.3d 335, 341 (Ind. Ct. App. 2014), trans.
denied; Hape, 903 N.E.2d at 1002 (Ind. Ct. App. 2009); Bryant v. State, 802
N.E.2d 486, 501 (Ind. Ct. App. 2004), trans. denied; Bennett, 787 N.E.2d at 948.
Norman only contends that he is struggling with a “treatable problem.”
Appellant’s Br. p. 30. However, he has been convicted of several alcohol and
drug related offenses and has only attended court-ordered treatment five or six
years prior to the current offense. Norman has not shown any initiative in
seeking treatment for his substance abuse issues.
[21] Given the nature of the offense and Norman’s character, we are not persuaded
that the sentence imposed was inappropriate.
Conclusion
[22] The trial court did not abuse its discretion when it allowed the State to question
Norman about his missing cell phone. The State presented sufficient evidence
to support Norman’s conviction for Level 2 felony possession of
methamphetamine with the intent to deliver, and Norman has failed to show
that the sentence imposed was inappropriate. We affirm.
[23] Affirmed.
Baker, J., and Crone, J., concur.
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