Colton T. Vibbert v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 12 2019, 6:29 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
Ryan M. Gardner Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Colton T. Vibbert, June 12, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2122
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D05-1712-F2-41
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2122 | June 12, 2019 Page 1 of 13
Case Summary
[1] Colton T. Vibbert appeals his conviction and sentence for dealing in
methamphetamine, a Level 2 felony, and his adjudication for being a habitual
offender. We affirm.
Issues
[2] Vibbert raises two issues on appeal, which we restate as follows:
I. Whether the trial court improperly admitted evidence that
was obtained after Vibbert’s girlfriend consented to a
search of her home, where Vibbert occasionally stayed.
II. Whether the trial court abused its sentencing discretion by
failing to find that Vibbert’s mental health history was a
significant mitigating factor.
Facts
[3] This case involves consent to a police search and the admissibility of evidence
that law enforcement recovered in executing the search. Vibbert’s girlfriend,
Veronica Grear, owned a trailer located in Fort Wayne. On November 9, 2017,
Fort Wayne Police Department detectives interviewed Grear and Vibbert
regarding an ongoing homicide investigation. During the interview, Grear
indicated that Vibbert occasionally stayed at her trailer and gave her written
consent to a police search of the trailer to Detective Craig Gregory. See App.
Vol. II p. 121. Detective Jeff Marsee interviewed Vibbert, who admitted that he
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2122 | June 12, 2019 Page 2 of 13
had stayed with Grear and left his vehicle at Grear’s trailer the night before the
interview.
[4] Later that afternoon, Detective Alan Garriott searched the trailer, pursuant to
Grear’s consent to search. 1 In the kitchen, Detective Garriott observed a “clear
food storage container” on a metal folding chair “in the approximate center of
the kitchen floor.” Tr. Vol. II p. 106.
[5] Inside the clear container, officers found baggies containing a powdery
substance, scales, and a box of unused food storage bags. The baggies
contained methamphetamine and inositol, a cutting agent.
[6] On December 11, 2017, Detective Juan Carlos Gutierrez of the Vice and
Narcotics Bureau arrested Vibbert for dealing in methamphetamine. Detective
Gutierrez read Vibbert his Miranda rights and conducted a recorded interview.
Vibbert initially stated that the methamphetamine recovered from the trailer
belonged to Grear; however, Vibbert “finally admitted that the
[methamphetamine] belonged to him.” Id. at 135.
[7] On December 14, 2017, the State charged Vibbert with dealing in
methamphetamine, a Level 2 felony; and maintaining a common nuisance, a
1
Detective Garriott was unaware of any limitation(s) in the scope of his search of Grear’s home. See Supp.
Tr. p. 17.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2122 | June 12, 2019 Page 3 of 13
Level 6 felony. The State subsequently dismissed the latter charge. In a
separate information, the State alleged that Vibbert was a habitual offender.
[8] On May 17, 2018, Vibbert filed a motion to suppress evidence, in which he
alleged that Grear did not freely and voluntarily give consent to the police
search; and that Grear consented to a limited scope search seeking “guns,
ammo, holsters, [ ] any bloody clothing[,]” and “evidence from the homicide.”
Supp. Tr. pp. 6, 28. The trial court conducted a hearing on Vibbert’s motion to
suppress on May 31, 2018 and denied the motion on June 19, 2019. See App.
Vol. III p. 39.
[9] Vibbert was tried by jury on June 21, 2018. The jury convicted Vibbert of
dealing in methamphetamine, a Level 2 felony. The parties subsequently
stipulated that Vibbert was a habitual offender. At Vibbert’s sentencing hearing
on July 13, 2018, defense counsel asked the trial court to consider, as
mitigating, that Vibbert “was diagnosed with bipolar, ADHD, and depression
at a very young age, but he has not received any treatment[.]” Tr. Vol. II p.
178. Acknowledging Vibbert’s significant criminal history, defense counsel
argued as follows that Vibbert had found himself in a “vicious cycle” of
“serving executed time, [but] not getting any mental health treatment[,]”:
I would submit to the Court that the untreated mental health
problems would create the situation, so to speak, where the prior
attempts at rehabilitation have failed. When people have
untreated mental health issues, they struggle, especially when
you’re talking about bipolar and ADHD, where that person,
because of the untreated mental health issues, struggles to stay in
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2122 | June 12, 2019 Page 4 of 13
compliance with the expectations of the authority figures, of
Probation, of Parole, of alternative sentencing programs and,
therefore, they don’t succeed in those programs. I – and I don’t
know that [it is fair] to call that prior attempt at rehabilitation
having been failed when that mental health issue wasn’t being
treated.
Id.
[10] The trial court declined to find Vibbert’s mental health issues to be mitigating
stating:
The higher courts have been pretty clear [ ] that there has to be a
connection between the charged offense and the alleged
mitigating circumstance and I see no connection between the
mental health issues that you claim to suffer from and the charge
of dealing in methamphetamine, so I decline to find that as a
mitigating circumstance.
Id. at 188. Finding Vibbert’s criminal history to be “significant[ly]
aggravating,” the trial court sentenced Vibbert to thirty years in the Department
of Correction (“DOC”) for dealing in methamphetamine and enhanced that
sentence by twenty years for the habitual offender adjudication, for an
aggregate sentence of fifty years. Id. The trial court further ordered that
Vibbert’s sentence should be served consecutively to his sentences in other
causes. Vibbert now appeals.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2122 | June 12, 2019 Page 5 of 13
Analysis
I. Admission of Evidence
[11] Vibbert argues that the trial court improperly admitted evidence that was
obtained in violation of his rights under the Fourth Amendment to the United
States Constitution.2 “The general admission of evidence at trial is a matter we
leave to the discretion of the trial court.” Clark v. State, 994 N.E.2d 252, 259-60
(Ind. 2013). “We review these determinations for abuse of that discretion and
reverse only when admission is clearly against the logic and effect of the facts
and circumstances and the error affects a party’s substantial rights.” Id. at 260.
[12] The Fourth Amendment to the United States Constitution protects citizens
against unreasonable searches and seizures by prohibiting them without a
warrant supported by probable cause. U.S. Const. amend. IV. “The
fundamental purpose of the Fourth Amendment to the United States
Constitution is to protect the legitimate expectations of privacy that citizens
possess in their persons, their homes, and their belongings.” Taylor v. State, 842
N.E.2d 327, 330 (Ind. 2006). This protection has been “extended to the states
through the Fourteenth Amendment.” Bradley v. State, 54 N.E.3d 996, 999
(Ind. 2016). “As a deterrent mechanism, evidence obtained in violation of this
rule is generally not admissible in a prosecution against the victim of the
2
Vibbert does not argue that the search violated Article 1, Section 11 of the Indiana Constitution; we,
therefore, deem that issue waived.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2122 | June 12, 2019 Page 6 of 13
unlawful search or seizure absent evidence of a recognized exception.” Clark,
994 N.E.2d at 260.
[13] One exception to the warrant requirement occurs when consent
is given to the search. A valid consent to search may be given by
the person whose property is to be searched or a third party who
has common authority or an adequate relationship to the
premises to be searched. When showing that a third party has
authority to consent, the State must demonstrate mutual use of
the property by persons generally having joint access or control
for most purposes, so that it is reasonable to recognize that “any
of the co-inhabitants has the right to permit the inspection in his
own right and that the others have assumed the risk that one of
their number might permit the common area to be searched.”
While a defendant typically is without standing to challenge the
voluntariness of a third party’s consent, an individual may do so
when that consent involves an area in which the defendant held a
reasonable expectation of privacy. Also, a third party may
consent to the search of the premises or property of another if
actual authority exists. Establishing actual authority requires a
showing that there is a sufficient relationship to or mutual use of
the property by persons generally having joint access or control
for most purposes. However, if actual authority cannot be
shown, then facts demonstrating that the consenting party had
apparent authority to consent could prove a lawful search. Krise
v. State, 746 N.E.2d [957,] 967 [(Ind. 2001)]. Under the apparent
authority doctrine, a search is lawful if the facts available to the
officer at the time would warrant a man of reasonable caution to
believe that the consenting party had authority over the property.
However, our Supreme Court has observed that persons sharing
premises may nonetheless retain areas or objects within their
exclusive control that are not subject to search based on consent of
one of the co-occupants. A co-occupant may deny joint access
over an object by keeping it in a place devoted to the owner’s
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2122 | June 12, 2019 Page 7 of 13
exclusive use or where the object is one over which only one
person normally exercises control and authority or which
“normally hold[s] highly personal items.”
Peel v. State, 868 N.E.2d 569, 575-76 (Ind. Ct. App. 2007) (citations and
footnote omitted).
[14] Vibbert argues that Grear lacked authority to consent to a search of the
container. He relies heavily upon our Supreme Court’s analysis in Krise and
Halsema v. State, 823 N.E.2d 668 (Ind. 2005). Our Supreme Court summarized
Krise as follows in Halsema:
In Krise v. State, 746 N.E.2d 957 (Ind. 2001)[,] the defendant
shared a house with a roommate. The roommate consented to a
general search of the house, which ultimately led to the discovery
and search of the defendant’s purse. That search, in turn,
revealed marijuana and a white powdery substance later
identified as methamphetamine. After a careful and exhaustive
review of what we characterized as the “twists and turns of
Fourth Amendment law” with respect to warrantless searches,
this Court ultimately reversed the defendant’s conviction of
possession of a controlled substance within 1000 feet of a public
park on the ground that the defendant’s roommate lacked
authority to consent to a warrantless search of the defendant’s
purse. We held “the inspection of closed containers that
normally hold highly personal items requires the consent of the
owner or a third party who has authority—actual or apparent—
to give consent to the search of the container itself.”
Acknowledging that we had previously addressed cases involving
third-party consent searches of a shared home and its contents,
we noted, “none of these cases dealt with a third-party’s
authority to consent to search something like a purse, i.e., a
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2122 | June 12, 2019 Page 8 of 13
closed container that normally holds highly personal items,
located within the home.”
Halsema, 823 N.E.2d at 676 (citing Krise, 746 N.E.2d at 961, 968-69) (internal
citations omitted).
[15] In Halsema, the defendant was pulled over in a vehicle and arrested for
possession of marijuana. A vehicle search yielded individually-wrapped
baggies of methamphetamine, controlled substances, scales, and drug
paraphernalia. When police officers went to the address that the defendant
provided, a resident told officers that the defendant had been staying in a
bedroom in her house and had exclusive use of certain drawers in the bedroom
dresser, which the resident had specifically emptied for the defendant’s use.
The resident then consented to a police search of the house, which yielded
methamphetamine in the defendant’s dresser drawer. After the defendant was
convicted of various offenses, he argued on appeal that the resident lacked
authority to consent to a search of his dresser drawer. We reversed the
conviction on other grounds, and our Supreme Court granted transfer.
[16] Citing Krise, the Supreme Court concluded that “[t]he dresser drawer . . . [wa]s
analogous to the purse in Krise—a closed container normally holding highly
personal items.” Halsema, 823 N.E.2d at 676. Ultimately, the Halsema Court
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2122 | June 12, 2019 Page 9 of 13
concluded that the resident lacked actual or apparent authority[ 3] to consent to
a search of the dresser drawer, reasoning:
[the defendant] enjoyed the exclusive use of at least one of the
dresser drawers in [the resident]’s bedroom and because [the
resident] specifically advised the officers of that fact, [the
resident] did not have actual authority to consent to a search of
the drawer where the methamphetamine was found, nor could an
officer reasonably believe that she had such authority.
Id. Thus, the Court vacated the defendant’s conviction and concluded that
“the warrantless search of the [dresser] drawer without [the defendant]’s
consent violated his Fourth Amendment right against unreasonable search and
seizure”; and that the trial court “erred by admitting the seized drugs into
evidence.” Id.
[17] The instant case differs from Krise and Halsema. The container: (1) was not
stored in a place that was devoted to Vibbert’s exclusive use; (2) is not the sort
of container that is used to store highly personal items; (3) is not the sort of
object “over which only one person normally exercises control”; (4) is
3
Our Supreme Court has defined “actual authority” and “apparent authority” as follows:
Actual authority “requires a showing that there is a sufficient relationship to or ‘mutual
use of the property by persons generally having joint access or control for most
purposes.’” As for apparent authority, “a search is lawful if the facts available to the
officer at the time would ‘warrant a man of reasonable caution in the belief that the
consenting party had authority over the premises.’”
Halsema, 823 N.E.2d at 676 (citations omitted).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2122 | June 12, 2019 Page 10 of 13
transparent—thus, its contents were openly visible to any viewer; and (5) was
found in the kitchen, which typically is the most heavily-trafficked common
area of a home. See Krise, 746 N.E.2d at 961, 968-69. These are not the
qualities of a vessel, similar to a purse or a dresser drawer, which we imbue
with heightened Fourth Amendment protections in cases involving third
parties’ consent to searches.
[18] For the foregoing reasons, we find that the trial court did not err in admitting
the evidence recovered pursuant to Grear’s consent to search her home. Grear
had actual and apparent authority to consent to a search of her kitchen,
including impersonal items that were in plain view.
II. Overlooked Mitigating Factor
[19] Next, Vibbert argues that the trial court overlooked a significant mitigating
factor—namely, his alleged mental health history. Specifically, Vibbert argues
that it was “error” for the trial court “[t]o not consider [his mental health
conditions]” as a mitigating factor and that “the trial court’s imposed sentence
is not warranted.” Appellant’s Br. p. 17.
[20] Sentencing decisions rest within the sound discretion of the trial court.
McElfresh v. State, 51 N.E.3d 103, 107 (Ind. 2016). As long as the sentence is
within the statutory range, it is subject to review only for an abuse of discretion.
Id. An abuse of discretion will be found where the 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.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2122 | June 12, 2019 Page 11 of 13
[21] A trial court is not obligated to accept a defendant’s claim as to what constitutes
a mitigating circumstance. Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000). A
trial court has discretion to determine whether the factors are mitigating, and it
is not required to explain why it does not find the defendant’s proffered factors
to be mitigating. Haddock v. State, 800 N.E.2d 242, 245 (Ind. Ct. App. 2003). A
claim that the trial court failed to find a mitigating circumstance requires the
defendant to establish that the mitigating evidence is both significant and clearly
supported by the record. Anglemyer v. State, 868 N.E.2d 482, 493 (Ind. 2007),
clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). A trial court’s sentencing order
may not be challenged as reflecting an improper weighing of aggravating or
mitigating circumstances. Id. at 491.
[22] “Mental illness is not necessarily a significant mitigating factor; ‘rather, [it] is a
mitigating factor to be used in certain circumstances, such as when the evidence
demonstrates longstanding mental health issues or when the jury finds that a
defendant is mentally ill.’” Townsend v. State, 45 N.E.3d 821, 831 (Ind. Ct. App.
2015), trans. denied. “[I]n order for a [defendant’s] mental history to provide a
basis for establishing a mitigating factor, there must be a nexus between the
defendant’s mental health and the crime in question.” Weedman v. State, 21
N.E.3d 873, 894 (Ind. Ct. App. 2014), trans. denied; see also Archer v. State, 689
N.E.2d 678, 685 (Ind. 1997).
[23] Here, the trial court considered Vibbert’s mental health history and explicitly
deemed it to lack mitigating weight due to the lack of a nexus between Vibbert’s
offenses and his alleged mental health conditions. Vibbert presented no
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2122 | June 12, 2019 Page 12 of 13
argument or evidence that: (1) supports his diagnoses; (2) reflects he was
suffering from the conditions when he committed the instant offenses; or (3)
indicates that the mental health conditions affected his ability to control his
impulses, impaired his faculties, or had some relationship to the crimes at issue.
[24] In the absence of any evidence of a mental disease or diagnosis, with the
exceptions of Vibbert’s self-serving 4 statements proffered at sentencing, and no
evidence of a nexus between Vibbert’s crimes and his mental state, we conclude
that the trial court did not abuse its sentencing discretion in refusing Vibbert’s
proffered mitigator. See Corralez v. State, 815 N.E.2d 1023, 1026 (Ind. Ct. App.
2004) (requiring a nexus between defendant’s mental health and the crimes in
question for mental history to be deemed mitigating).
Conclusion
[25] The trial court did not err in admitting evidence recovered pursuant to a
consent to search and did not overlook a significant mitigating factor. We
affirm.
[26] Affirmed.
Crone, J., and Bradford, J., concur.
4
Vibbert’s pre-sentence investigation report provides that “[t]he defendant reported he was diagnosed with
Bipolar Disorder, Depression, and Attention Deficit Hyperactivity Disorder, as a juvenile. He advised he
was treated with medication; however, he has not been prescribed any medication for his mental health
issues since age 13.” App. Vol. III p. 91.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2122 | June 12, 2019 Page 13 of 13