David A. Swift v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Mar 24 2016, 9:15 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jane Ann Noblitt Gregory F. Zoeller
Columbus, Indiana Attorney General of Indiana
Karl Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David A. Swift, March 24, 2016
Appellant-Defendant, Court of Appeals Case No.
03A01-1509-CR-1456
v. Appeal from the Bartholomew
Superior Court
State of Indiana, The Honorable James D. Worton,
Appellee-Plaintiff Judge
Trial Court Cause No.
03D01-1504-F4-2096
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 03A01-1509-CR-1456 | March 24, 2016 Page 1 of 7
Case Summary
[1] David A. Swift challenges the sufficiency of evidence supporting his conviction
for level 4 felony dealing in methamphetamine (“meth”). He also asserts that
his sentence is inappropriate in light of the nature of the offense and his
character. We affirm both his conviction and his sentence.
Facts and Procedural History
[2] The evidence most favorable to the verdict is as follows. Late one night in
October 2014, Columbus Police Department Narcotics Detectives Joshua
McCrary and Jeremy Coomes were contacted by a confidential informant (“the
CI”) about a possible purchase of meth from Swift in a controlled buy. The
detectives met the CI in a parking lot near Swift’s apartment. They strip-
searched the CI and searched his vehicle immediately before the sale,
inventorying the contents. No contraband was found. The detectives equipped
the CI with electronic monitoring equipment and an audio recording device.
They gave him $250 in previously photocopied bills and instructed him to
purchase an “eight ball,” or one-eighth of an ounce, of meth.
[3] The detectives followed the CI to Swift’s apartment, parked at a safe distance,
and watched as the CI approached and entered the apartment. Via their
monitoring equipment, the detectives listened as the CI and Swift talked. Swift
weighed the meth on a scale and gave it to the CI, who gave him $250 in
exchange. During the controlled buy, the audio recording picked up the sounds
Court of Appeals of Indiana | Memorandum Decision 03A01-1509-CR-1456 | March 24, 2016 Page 2 of 7
of a small child, later determined to be Swift’s three-year-old daughter, who was
present in the room.
[4] When the CI exited Swift’s apartment, the detectives followed closely behind
him to a nearby restaurant parking lot, where the CI relinquished the meth rock
that he had purchased from Swift. The detectives again searched the CI’s
person and vehicle and found no contraband or change in inventory since their
previous searches. The detectives submitted the meth rock to the Indiana State
Police Laboratory, where it was confirmed to contain meth and have a net
weight of 3.39 grams.
[5] The State charged Swift with level 4 felony dealing in methamphetamine. A
jury found him guilty as charged. The trial court sentenced him to ten years,
with eight executed to the Department of Correction (“DOC”) and two
suspended to probation. The court found the aggravating circumstances to
include Swift’s extensive criminal history, probation violations, and failures to
successfully complete drug and alcohol treatment programs. During the
sentencing hearing, the trial court noted that it was bothered by the presence of
Swift’s young daughter during the drug deal. The trial court specifically found
no mitigating circumstances.
[6] Swift now appeals his conviction and sentence. Additional facts will be
provided as necessary.
Court of Appeals of Indiana | Memorandum Decision 03A01-1509-CR-1456 | March 24, 2016 Page 3 of 7
Discussion and Decision
Section 1 – The evidence is sufficient to support Swift’s
conviction.
[7] Swift maintains that the evidence is insufficient to support his conviction for
dealing in methamphetamine. When reviewing a challenge to the sufficiency of
evidence, we neither reweigh evidence nor judge witness credibility. Drane v.
State, 867 N.E.2d 144, 146 (Ind. 2007). Rather, we consider only the evidence
and reasonable inferences most favorable to the verdict and will affirm the
conviction “unless no reasonable fact-finder could find the elements of the
crime proven beyond a reasonable doubt.” Id. It is therefore not necessary that
the evidence “overcome every reasonable hypothesis of innocence.” Id.(citation omitted).
[8] A jury convicted Swift of level 4 felony dealing in methamphetamine. “A
person who … knowingly or intentionally … delivers … methamphetamine,
pure or adulterated … commits dealing in methamphetamine …. a Level 4
felony if the amount of the drug involved is at least one (1) gram but less than
five (5) grams.” Ind. Code § 35-48-4-1.1(a)(1)(C), -(c)(1).
[9] At trial, the audio recording of the controlled buy was admitted into evidence.
Among other information, the recording captured Swift’s request to his
girlfriend to get a scale followed by the terms “two-fifty” and “three-fours.”
State’s Ex. 1. See also Tr. at 49, 68 (“three-fours” refers to gram equivalent of an
“eight ball”). The detectives testified concerning their use of the audio
Court of Appeals of Indiana | Memorandum Decision 03A01-1509-CR-1456 | March 24, 2016 Page 4 of 7
recording equipment as well as their observations of the CI and searches of his
person and vehicle. The CI testified that while he was inside Swift’s apartment,
Swift weighed an “eight ball” of meth and gave it to the CI in exchange for
$250.
[10] Swift essentially asks that we reweigh evidence and give credence to one of his
two versions of the events. On the one hand, he claims that the recording
actually captured a transaction in which the CI sold him marijuana and a gold
necklace for forty-five dollars. Tr. at 150-51. On the other hand, he asserts that
“two-fifty” refers to two dollars and fifty cents, which he allegedly gave to the
CI in partial repayment of a ten-dollar debt, and that “three-fours” was a
reference to the serial numbers on the dollar bills. Tr. at 149, 152, 159-60.
Notably, the detectives’ searches of the CI produced nothing to substantiate
either claim. More importantly, we remind Swift that we may not invade the
jury’s province by reweighing evidence or judging witness credibility. We must
decline his invitation to do so. The evidence most favorable to the verdict is
sufficient to support Swift’s conviction.
Section 2 – Swift has failed to demonstrate that his ten-year
sentence is inappropriate.
[11] Swift asks that we reduce his sentence pursuant to Indiana Appellate Rule 7(B),
which states that we “may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, [this] Court finds that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender.” When a defendant requests appellate review and revision of his
Court of Appeals of Indiana | Memorandum Decision 03A01-1509-CR-1456 | March 24, 2016 Page 5 of 7
sentence, we have the power to affirm or reduce the sentence. Akard v. State,
937 N.E.2d 811, 813 (Ind. 2010). In conducting our review, we do not look to
see whether the defendant’s sentence is appropriate or if another sentence might
be more appropriate; rather, the test is whether the sentence is “inappropriate.”
Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). A defendant bears
the burden of persuading this Court that his sentence meets the
inappropriateness standard. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.
2007), clarified on reh’g, 875 N.E.2d 218.
[12] In considering the nature of a defendant’s offense, “the advisory sentence is the
starting point the Legislature has selected as an appropriate sentence.”
Anglemyer, 868 N.E.2d at 494. Swift was sentenced to ten years pursuant to
Indiana Code Section 35-50-2-5.5, which states that the sentencing range for a
person convicted of a level 4 felony is two to twelve years, with an advisory
term of six years. Although he correctly points out that the drug deal itself did
not cause or threaten serious harm to any person or property, 1 the legislature
designated the level of his offense based on the quantity of the drug sold, not on
1
To the extent that Swift now raises this as an allegedly overlooked mitigator, we emphasize that abuse of
discretion and Rule 7(B) revision are separate analyses. King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App.
2008). Swift has conflated these analyses in his brief. With respect to the nonviolent nature of his offense, he
neither advanced this alleged mitigator for consideration at sentencing nor raised it here as an issue separate
from his Rule 7(B) claim. Thus, he has waived this as a separate issue for our consideration, and we address
the nonviolent nature of the offense only as it pertains to our Rule 7(B) analysis. Anglemyer, 875 N.E.2d at
220 (Ind. 2007) (recognizing that except in certain circumstances involving guilty pleas, defendant is
precluded from advancing mitigators for first time on appeal), opinion on reh’g. Similarly, waiver applies to
Swift’s overlooked mitigator claim concerning the “victim” inducing or facilitating his offense. Appellant’s
Br. at 8. Even so, we emphasize that a court may impose any sentence that is authorized by statute and
permissible under the Indiana Constitution regardless of the presence or absence of aggravating or mitigating
circumstances. Ind. Code § 35-38-1-7.1(d).
Court of Appeals of Indiana | Memorandum Decision 03A01-1509-CR-1456 | March 24, 2016 Page 6 of 7
the presence or absence of violence. We note, however, that the audio
recording of the drug deal indicates that Swift conducted the sale in the
presence of his three-year-old daughter, which was properly a cause for the trial
court’s concern.
[13] As for Swift’s character, his extensive criminal history includes convictions for
violent offenses, including felony strangulation and misdemeanor domestic
battery. He has numerous other misdemeanor convictions as well as probation
violations, no-contact orders, and failures to appear for legal proceedings and
drug and alcohol treatment. The presentence investigation report, to which he
specifically directed the trial court’s attention, includes an entry indicating
pending felony charges against him for dealing in narcotics, carrying a handgun
with a prior felony conviction, and possession of an altered handgun.
Appellant’s App. at 120; Tr. at 300. Simply put, for over a decade, Swift has
repeatedly broken the law. He committed the present offense in the presence of
his three-year-old daughter. His chronic failure to respond positively to
leniency when offered does not bode well for his future success with sentencing
alternatives outside the DOC. He has failed to demonstrate that his ten-year
sentence is inappropriate. Consequently, we affirm.
[14] Affirmed.
Najam, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 03A01-1509-CR-1456 | March 24, 2016 Page 7 of 7