David E. Proffitt v. State of Indiana (mem. dec.) ( 2018 )


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  • MEMORANDUM DECISION                                                        FILED
    Pursuant to Ind. Appellate Rule 65(D),                                Jun 20 2018, 6:33 am
    this Memorandum Decision shall not be                                      CLERK
    Indiana Supreme Court
    regarded as precedent or cited before any                                 Court of Appeals
    and Tax Court
    court except for the purpose of establishing
    the defense of res judicata, collateral
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    R. Patrick Magrath                                       Curtis T. Hill, Jr.
    Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
    Madison, Indiana
    J.T. Whitehead
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    David E. Proffitt,                                       June 20, 2018
    Appellant-Defendant,                                     Court of Appeals Case No.
    40A05-1505-CR-473
    v.                                               Appeal from the Jennings Circuit
    Court
    State of Indiana,                                        The Honorable Jon W. Webster,
    Appellee-Plaintiff.                                      Judge
    Trial Court Cause No.
    40C01-1212-FB-48
    Najam, Judge.
    Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018            Page 1 of 18
    Statement of the Case
    [1]   David E. Proffitt appeals his convictions following a jury trial for three counts
    of dealing in a narcotic drug, as Class B felonies. He presents four issues for
    our review:
    1.       Whether the trial court abused its discretion when it
    admitted into evidence his statements made during two
    interrogations.
    2.       Whether application of the incredible dubiosity rule
    establishes that there is insufficient evidence to support his
    convictions.
    3.       Whether the trial court committed fundamental error
    when it admitted allegedly prejudicial character evidence.
    4.       Whether his sentence is inappropriate in light of the nature
    of the offenses and his character.
    [2]   We affirm and remand with instructions.1
    Facts and Procedural History
    [3]   In early 2012, Jennings County Sheriff’s Lieutenant Brian Talkington received a
    phone call from a woman who claimed to be Proffitt’s sister-in-law. She told
    Lieutenant Talkington that Proffitt was getting “a lot of pills” through his wife’s
    1
    We held oral argument in this case on June 4, 2018, at the Mitchell Opera House in Mitchell, Indiana on
    the 200th anniversary of the first court hearing held in Lawrence County on June 4, 1818. We thank counsel
    for their excellent advocacy, and we thank the Lawrence County Bar Association and the Lawrence County
    Bicentennial Committee for inviting us to hold the oral argument as part of Lawrence County’s Bicentennial
    celebration.
    Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018           Page 2 of 18
    health insurance with the Federal government. Tr. Vol. III at 377. Lieutenant
    Talkington then contacted David White, a Special Agent with the Inspector
    General for the United States Department of Health and Human Services, and
    Agent White stated that he had also been contacted and informed that Proffitt
    was “receiving high volumes of prescription narcotics which seemed beyond the
    scope of medical necessity” for his personal use. Id. at 453. Agent White
    verified that information by checking a database “that basically logs all
    prescription narcotics, how they’re paid for, quantities people get, things like
    that.” Id. at 454. Accordingly, Agent White began investigating Dr. Anthony
    Mims, who had been prescribing the narcotics for Proffitt, and Lieutenant
    Talkington initiated four controlled drug buys between confidential informants
    and Proffitt.
    [4]   After the last controlled buy, Lieutenant Talkington concluded that it was time
    to arrest Proffitt. Lieutenant Talkington was concerned for the safety of law
    enforcement if they were to make the arrest at his home. Proffitt had previously
    approached the local jail and offered to provide “pizzas to the inmates on a
    commissary situation [sic].” Id. at 415. Accordingly, Lieutenant Talkington
    arranged for Proffitt to come to the jail on the pretense of making arrangements
    for the pizza sales. When Proffitt arrived at the jail on December 4, 2012,
    Lieutenant Talkington, Agent White, and other law enforcement officers
    introduced themselves, told Proffitt that they were not interested in pizza sales,
    and read him his Miranda rights. Proffitt’s live-in girlfriend, Brandy Caudill,
    had accompanied him inside the jail, and Proffitt’s son waited in the car.
    Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018   Page 3 of 18
    During the first interview, Proffitt denied that he sold pills, but he
    acknowledged that he received approximately 1,000 oxycodone and
    hydrocodone pills every three months. After Agent White interrogated Proffitt,
    Lieutenant Talkington obtained a search warrant for Proffitt’s residence and a
    storage unit and placed him under arrest.
    [5]   Approximately six days later, Proffitt notified jail personnel that he wanted to
    talk to “federal agents” and to “cooperate with them[.]” Id. at 422.
    Accordingly, Agent White again read Proffitt his Miranda rights and conducted
    a second interrogation of Proffitt on December 10. Proffitt again denied that he
    sold pills, but he told Agent White that Dr. Mims gave him the prescriptions in
    exchange for gift cards and silver, that Dr. Mims did not examine Proffitt
    during Proffitt’s visits, and that Proffitt would direct Dr. Mims on what
    prescriptions to write.2
    [6]   The State charged Proffitt with four counts of dealing in a narcotic drug, as
    Class B felonies; conspiracy to commit dealing in a narcotic drug, as a Class B
    felony; and maintaining a common nuisance, a Class D felony. Prior to trial,
    Proffitt filed a motion to suppress evidence alleging that both of his
    interrogations were conducted under duress and in violation of his “state and
    2
    During his trial testimony, Agent White indicated that, “[a]fter Mr. Proffitt did not cooperate,” there had
    been no further investigation of Dr. Mims; that Dr. Mims had not been charged with any crime, and that
    Agent White had referred the case to a different agency. Id. at 470.
    Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018                Page 4 of 18
    federal protections against self-incrimination[.]” Appellant’s App. Vol. II at
    107. The trial court denied that motion after a hearing.
    [7]   At his ensuing jury trial, the State presented as evidence the testimony of the
    two confidential informants, Emma Kiefer and Jessica Johnson; the testimony
    of Lieutenant Talkington; the testimony of Agent White; the audio recordings
    from the four controlled buys; and the audio recordings from the two
    interrogations. Proffitt presented as evidence his testimony and the testimony
    of Caudill.
    [8]   At the conclusion of his trial in November 2014, the jury acquitted Proffitt of
    one count of dealing in a narcotic drug, but found him guilty of the remaining
    five counts. The trial court entered judgment of conviction accordingly, but,
    “for the purposes of sentencing only,” the court “vacated” Proffitt’s convictions
    for conspiracy to commit dealing in a narcotic drug and maintaining a common
    nuisance. Appellant’s App. Vol. III at 111 (emphasis in original). And the
    court sentenced Proffitt to an aggregate term of thirty-four years executed. This
    appeal ensued.
    Discussion and Decision
    Issue One: Admission of Statements
    [9]   Proffitt first contends that the trial court abused its discretion when it admitted
    into evidence statements he made during his interrogations with law
    enforcement. Proffitt initially challenged the admission of this evidence
    through a motion to suppress but now appeals following a completed trial.
    Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018   Page 5 of 18
    Thus, the issue is appropriately framed as whether the trial court abused its
    discretion by admitting the evidence at trial. Lanham v. State, 
    937 N.E.2d 419
    ,
    421-22 (Ind. Ct. App. 2010). A trial court is afforded broad discretion in ruling
    upon the admissibility of evidence, and we will reverse such a ruling only when
    the defendant has shown an abuse of discretion. 
    Id. at 422
    . An abuse of
    discretion involves a decision that is clearly against the logic and effect of the
    facts and circumstances before the court. 
    Id.
     We do not reweigh the evidence,
    and we consider conflicting evidence in the light most favorable to the trial
    court’s ruling. 
    Id.
    [10]   Proffitt asserts that the admission of his statements at trial violated Article 1,
    Section 14 of the Indiana Constitution, which provides that no person, in any
    criminal prosecution, shall be compelled to testify against himself. In
    particular, he maintains that his statements to law enforcement were made
    under duress and were, therefore, not voluntary. Where, as here, a defendant
    challenges the voluntariness of a confession under the Indiana Constitution, the
    State is required “to prove beyond a reasonable doubt that the defendant
    voluntarily waived his rights and that the confession was voluntarily given.”
    Malloch v. State, 
    980 N.E.2d 887
    , 901 (Ind. Ct. App. 2012). “When evaluating a
    claim that a statement was not given voluntarily, the trial court is to consider
    the totality of the circumstances, including whether there is police coercion, the
    length, location, and continuity of the interrogation, and the maturity,
    education, physical condition, and mental health of the defendant.” 
    Id.
    Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018   Page 6 of 18
    [11]   Proffitt alleges that his statements during the first interrogation were not
    voluntary because he was promised leniency when officers told him he could
    help himself and because he “was told that he had to talk, and that it was a
    federal crime to lie to law enforcement.” Appellant’s Br. at 18. We must
    disagree. While a confession is inadmissible if it was obtained by promises of
    mitigation or immunity, “vague and indefinite statements by the police that it
    would be in a defendant’s best interest if he cooperated do not render a
    subsequent confession inadmissible.” Clark v. State, 
    808 N.E.2d 1183
    , 1191
    (Ind. 2004). “Further, ‘[s]tatements by police expressing a desire that a suspect
    cooperate and explaining the crimes and penalties that are possible results are
    not specific enough to constitute either promises or threats.’” 
    Id.
     (quoting
    Kahlenbeck v. State, 
    719 N.E.2d 1213
    , 1217 (Ind. 1999)). Here, while Lieutenant
    Talkington and Agent White both told Proffitt during the interviews that he
    could help himself, neither officer made any specific promises that Proffitt
    would receive a reduction in his charges or sentence. And Agent White’s
    statement that it is a federal crime to lie to a law enforcement officer was not
    specific enough to constitute a threat. The statements by the officers were an
    attempt to induce Proffitt to provide information, but they did not constitute
    promises of benefits or threats that rendered Proffitt’s statements involuntary.
    See 
    id.
    [12]   Proffitt also alleges that his statements during the first interrogation were not
    voluntary because he was worried about the well-being of his son, who was
    sitting in the car outside of the jail. But both Lieutenant Talkington and Agent
    Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018   Page 7 of 18
    White testified that Proffitt never mentioned that his son was sitting alone in the
    car. And nothing in the record persuades us that Proffitt’s statements during
    the first interview were involuntary. Officers read Proffitt his Miranda rights
    and asked Proffitt if he understood his rights, which he indicated he did. And
    Lieutenant Talkington did not observe any behavior during the ninety-minute
    interview that made him believe that Proffitt was not mentally competent.
    Rather, Lieutenant Talkington testified at the hearing on the motion to suppress
    that Proffitt appeared “quite confident.” Tr. Vol. II at 40. And, even though
    Proffitt started to sweat at one point, a nurse examined him and said he was
    “fine.” 
    Id.
     Similarly, Agent White testified at the suppression hearing that
    Proffitt appeared very lucid at all times and that he was “very calm and
    coherent.” Id. at 61.
    [13]   Further, even though Agent White continued to ask Proffitt about selling pills,
    Proffitt maintained his innocence and stated that he never sold any of the pills
    he had been prescribed. Indeed, Proffitt acknowledges on appeal that he “did
    not make any statements during the December 4, 2012, interrogation that were
    of significant inculpatory value.” Appellant’s Br. at 18. Proffitt’s statements
    made during the first interview were not involuntary, and the trial court did not
    abuse its discretion when it admitted those statements.
    [14]   Proffitt also asserts that his statements during the second interrogation were
    involuntary because, prior to the second interrogation, he was “subjected to
    abusive action” in the jail, including being choked, tazed, and placed in an
    isolation cell. Id. at 19. He also contends that the statements were involuntary
    Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018   Page 8 of 18
    because he was “under substantial emotional and physical duress” due to the
    “anguish of not knowing the fate of his mentally handicapped child” and due to
    sickness as a result of withdrawal from narcotics. Id. at 20. Proffitt maintains
    that, under these “extraordinary circumstances, no waiver or consent can be
    considered voluntary” and the trial court should have excluded his statements
    at trial. Id.
    [15]   But, again, nothing in the record convinces us that Proffitt’s statements during
    the second interview were involuntary. Proffitt initiated the second interview.
    And Proffitt was again advised of his rights and signed a waiver of rights form.
    Further, the interview was not excessive in duration as it only lasted
    approximately one hour. Additionally, Agent White testified during the
    suppression hearing that Proffitt was “very coherent” and “[v]ery calm” during
    the second interview. Tr. Vol. II at 63. Agent White also testified that Proffitt
    did not seem to be in any physical distress and that he did not notice anything
    to make him think that Proffitt was mentally or emotionally unable to answer
    the questions. Further, Agent White testified that it never appeared as though
    Proffitt was under the influence of any opiates or that he was experiencing any
    withdrawal symptoms. Because Proffitt’s statements during the second
    interrogation were not involuntary, the trial court did not abuse its discretion
    when it admitted those statements at trial.
    Issue Two: Sufficiency of the Evidence
    [16]   Proffitt also contends that the State presented insufficient evidence to support
    his convictions. Initially, we note that the trial court entered judgment of
    Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018   Page 9 of 18
    conviction on all five counts on which the jury entered guilty verdicts. And,
    during the sentencing hearing, both parties agreed that “the conspiracy
    conviction and the maintaining a common nuisance conviction at least for the
    purposes of sentencing are to be vacated because they are part of the other
    crimes.” Tr. Vol. VI at 1054-55. Subsequently the trial court in its sentencing
    order vacated the two convictions “for purposes of sentencing only[.]”
    Appellant’s App. Vol. III at 111.
    [17]   However, both the Chronological Case Summary and the abstract of judgment
    indicate that the convictions for Counts V and VI were “merged.” Appellant’s
    App. Vol. II at 18, Appellant’s App. Vol. III at 109. As such, it is apparent that
    the trial court simply merged the convictions for purposes of sentencing but did
    not vacate them. It is well settled that if a trial court enters judgment of
    conviction on a jury’s guilty verdict, “then simply merging the offenses is
    insufficient and vacation of the offense is required.” Kovats v. State, 
    982 N.E.2d 409
    , 414-15 (Ind. Ct. App. 2013). Here, because the trial court entered
    judgment of conviction on all five of the jury’s guilty verdicts and attempted to
    “merge” two of the convictions for purposes of sentencing, we remand with
    instructions for the trial court to vacate Proffitt’s convictions for conspiracy to
    commit dealing in a narcotic drug and maintaining a common nuisance.
    Accordingly, we address only the sufficiency of the evidence to support his
    convictions for three counts of dealing in a narcotic drug.
    [18]   For those convictions, Proffitt specifically contends that there was insufficient
    evidence because his convictions were based only on the testimony of Kiefer,
    Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018   Page 10 of 18
    Johnson, and Lieutenant Talkington, and he claims that the testimony from
    each of those witnesses was “incredibly dubious.” Under the incredible
    dubiosity rule, “a court will impinge on the jury’s responsibility to judge the
    credibility of witnesses only when it has confronted ‘inherently improbable’
    testimony or coerced, equivocal, wholly uncorroborated testimony of
    ‘incredible dubiosity.’” Moore v. State, 
    27 N.E.3d 749
    , 755 (Ind. 2015) (quoting
    Tillman v. State, 
    642 N.E.2d 221
    , 223 (Ind. 1994)). For the incredible dubiosity
    rule to apply, “the evidence presented must be so unbelievable, incredible, or
    improbable that no reasonable person could ever reach a guilty verdict based
    upon that evidence alone.” Wolf v. State, 
    76 N.E.3d 911
    , 916 (Ind. Ct. App.
    2017). “Application of the incredible dubiosity rule is limited to cases with very
    specific circumstances because we are extremely hesitant to invade the province
    of the jury.” Smith v. State, 
    34 N.E.3d 1211
    , 1221 (Ind. 2015). For the
    incredible dubiosity rule to apply, there must be: “1) a sole testifying witness; 2)
    testimony that is inherently contradictory, equivocal, or the result of coercion,
    and 3) a complete absence of circumstantial evidence.” Moore, 27 N.E.3d at
    756.
    [19]   Here, Proffitt specifically contends that the testimony from Kiefer and Johnson
    was incredibly dubious because of their drug addictions and because they were
    coerced by the State’s threat of prosecution. And Proffitt contends that
    Lieutenant Talkington’s testimony was incredibly dubious in light of false
    statements he had given in his report and in a previous hearing. But the State
    Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018   Page 11 of 18
    contends that “the invocation of the ‘incredible dubiosity’ rule fails for a
    number of reasons.” Appellee’s Br. at 28. The State is correct.
    [20]   First, there was not a “sole testifying witness.” Moore, 27 N.E.3d at 756.
    Rather, the State presented the testimony of Kiefer, Johnson, and Lieutenant
    Talkington as evidence, and each witness’ testimony was consistent with the
    testimony of the other witnesses. Further, there was not “a complete absence of
    circumstantial evidence” as the State presented circumstantial evidence that
    corroborated the witnesses’ testimony, including the audio recordings of the
    controlled buys and the pills that the confidential informants returned to the
    police officers after the buys. Id. As such, the incredible dubiosity rule does not
    apply.3 Proffitt’s arguments on appeal merely seek to have this court reassess
    the weight and credibility of the evidence, which we will not do. The State
    presented sufficient evidence to support Proffitt’s convictions.
    Issue Three: Character Evidence
    [21]   Proffitt also contends that the trial court committed fundamental error when it
    permitted Caudill’s testimony regarding a houseguest who resided with Proffitt
    and Caudill in 2011. Proffitt acknowledges that his own counsel elicited that
    3
    For the first time at oral argument, Proffitt asserted that the incredible dubiosity rule should apply because,
    at least in regards to the last two controlled buys, Johnson was the only witness to the offense. However, the
    incredible dubiosity rule still does not apply because the State presented as evidence the audio recordings of
    the controlled buys and the pills Johnson purchased, which at least partially corroborated Johnson’s
    testimony.
    Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018                Page 12 of 18
    testimony on direct examination during his case-in-chief, but he does not assert
    a claim of ineffective assistance of counsel.
    [22]   As our Supreme Court has explained:
    A claim that has been waived by a defendant’s failure to raise a
    contemporaneous objection can be reviewed on appeal if the
    reviewing court determines that a fundamental error occurred.
    The fundamental error exception is extremely narrow, and
    applies only when the error constitutes a blatant violation of
    basic principles, the harm or potential for harm is substantial,
    and the resulting error denies the defendant fundamental due
    process. The error claimed must either make a fair trial
    impossible or constitute clearly blatant violations of basic and
    elementary principles of due process. This exception is available
    only in egregious circumstances.
    Brown v. State, 
    929 N.E.2d 204
    , 207 (Ind. 2010) (quotation marks and citations
    omitted). “To prove fundamental error,” the appellant must show “that the
    trial court should have raised the issue sua sponte . . . .” Taylor v. State, 
    86 N.E.3d 157
    , 162 (Ind. 2017).
    [23]   Specifically, Proffitt maintains that Caudill’s testimony that Proffitt and the
    houseguest had showered together, that the houseguest had requested a sexual
    encounter with Proffitt and Caudill, and that the houseguest’s mother
    threatened to call law enforcement to report that Proffitt had raped the
    houseguest unduly prejudiced him in violation of Indiana Evidence Rule
    404(b). Proffitt contends that the “overwhelming prejudicial effect of Caudill’s
    testimony was to invite the jury to speculate as to Proffitt’s character.”
    Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018   Page 13 of 18
    Appellant’s Br. at 26. He further asserts that “[s]uch a salacious innuendo
    planted in the minds of a jury cannot be harmless and inevitably would have
    directly or indirectly affected the jury’s view of the evidence and consideration
    of the issues.” Id. at 27.
    [24]   But, as noted above, Proffitt’s own counsel elicited the challenged testimony
    from Caudill. Accordingly, Proffitt has invited the error, if any. The invited
    error doctrine forbids a party from taking advantage of an error that he
    “commits, invites, or which is the natural consequence of [his] own neglect or
    misconduct.” Brewington v. State, 
    7 N.E.3d 946
    , 975 (Ind. 2014) (quoting Wright
    v. State, 
    828 N.E.2d 904
    , 907 (Ind. 2005)). And “‘invited error is not
    fundamental error’ and is not subject to appellate review[.]” Cole v. State, 
    28 N.E.3d 1126
    , 1136 (Ind. Ct. App. 2015) (quoting Kingery v. State, 
    659 N.E.2d 490
    , 494 (Ind. 1995)). Because any error in the court’s admission of Caudill’s
    testimony was invited by Proffitt, his fundamental error claim fails.
    Issue Four: Sentencing
    [25]   Finally, Proffitt contends that his sentence in inappropriate in light of the nature
    of the offenses and his character. Indiana Appellate Rule 7(B) provides that
    “[t]he Court may revise a sentence authorized by statute if, after due
    consideration of the trial court’s decision, the Court finds that the sentence is
    inappropriate in light of the nature of the offense and the character of the
    offender.” The Indiana Supreme Court has recently explained that:
    The principal role of appellate review should be to attempt to
    leaven the outliers . . . but not achieve a perceived “correct”
    Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018   Page 14 of 18
    result in each case. Cardwell v. State, 
    895 N.E.2d 1219
    , 1225 (Ind.
    2008). Defendant has the burden to persuade us that the
    sentence imposed by the trial court is inappropriate. Anglemyer v.
    State, 
    868 N.E.2d 482
    , 494 (Ind.), as amended (July 10, 2007),
    decision clarified on reh’g, 
    875 N.E.2d 218
     (Ind. 2007).
    Shoun v. State, 
    67 N.E.3d 635
    , 642 (Ind. 2017) (omission in original).
    [26]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
    sentence to the circumstances presented, and the trial court’s judgment “should
    receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we
    regard a sentence as inappropriate at the end of the day turns on “our sense of
    the culpability of the defendant, the severity of the crime, the damage done to
    others, and myriad other factors that come to light in a given case.” Id. at 1224.
    The question is not whether another sentence is more appropriate, but rather
    whether the sentence imposed is inappropriate. King v. State, 
    894 N.E.2d 265
    ,
    268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless
    overcome by compelling evidence portraying in a positive light the nature of the
    offense (such as accompanied by restraint, regard, and lack of brutality) and the
    defendant’s character (such as substantial virtuous traits or persistent examples
    of good character).” Stephenson v. State, 
    29 N.E.3d 111
    , 122 (Ind. 2015).
    [27]   Proffitt was convicted of three counts of dealing in a narcotic drug, as Class B
    felonies. The sentencing range for a Class B felony is six years to twenty years,
    with an advisory sentence of ten years. 
    Ind. Code § 35-50-2-4
    .5 (2018). Here,
    the trial court identified as mitigating factors the fact that Proffitt had completed
    many self-help programs while incarcerated and he had been gainfully
    Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018   Page 15 of 18
    employed for most of his adult life. And the trial court identified the following
    aggravating factors: Proffitt’s criminal history, which includes twenty-seven
    felony charges and eighteen misdemeanor charges that resulted in two felony
    convictions and four misdemeanor convictions; that Proffitt was stealing
    taxpayer funds when he dealt drugs paid for by taxpayers; that Proffitt has no
    high school diploma or GED; that Proffitt has had his probation revoked once;
    that there have been several incidents of jail misconduct; that Proffitt’s children
    were in his home during the drug transactions; and that Proffitt’s dealing
    operation was an “ongoing and large scale operation.” Appellant’s App. Vol.
    III at 112. Accordingly, the trial court sentenced Proffitt to an aggregate term
    of thirty-four years with the Department of Correction.
    [28]   Proffitt maintains that his sentence is inappropriate in light of the nature of the
    offenses because there was “no evidence that anyone was directly injured or
    harmed by any conduct Proffitt is alleged to have engaged in.” Appellant’s Br.
    at 30. He also asserts that there was no “evidence of violence, substantial
    quantity or prolonged duration[.]” 
    Id.
     But the evidence shows that Proffitt
    obtained one thousand oxycodone and hydrocodone pills every three months
    and that he would sell those narcotics to individuals within his community. As
    such, he has contributed to the opioid epidemic. Additionally, Proffitt used his
    wife’s government insurance to purchase the pills. And, as the trial court
    found, Proffitt’s children were present in the home during the drug transactions.
    We cannot say that Proffitt’s sentence is inappropriate in light of the nature of
    the offenses.
    Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018   Page 16 of 18
    [29]   Proffitt also contends that his sentence is inappropriate in light of his character
    because he was a forty-five-year-old man with “serious medical issues.” Id. at
    28. He also contends that he “had taken advantage of every option available to
    improve his life” and that his “behavior and conduct while incarcerated
    demonstrate a desire to return to a lawful lifestyle as a productive member of
    society.” Id. But Proffitt has not demonstrated that his sentence is
    inappropriate in light of his character. Proffitt has a criminal history that
    includes two prior felony convictions and four prior misdemeanor convictions.
    Additionally, he has had his probation revoked once and he has violated jail
    rules on at least three occasions. Accordingly, we conclude that Proffitt’s
    sentence is not inappropriate and we affirm his sentence.
    Conclusion
    [30]   In sum, we hold as follows: the trial court did not abuse its discretion when it
    admitted into evidence statements Proffitt made during two interrogations
    because those statements were not involuntary; the incredible dubiosity rule
    does not apply because there was more than one testifying witness and because
    there was not a complete lack of corroborating evidence; the trial court did not
    commit fundamental error when it admitted Caudill’s testimony because
    Proffitt invited any error; and Proffitt’s sentence is not inappropriate in light of
    the nature of the offenses and his character. But we remand with instructions
    for the trial court to vacate Proffitt’s convictions for conspiracy to commit
    dealing in a narcotic drug and maintaining a common nuisance.
    [31]   Affirmed and remanded with instructions.
    Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018   Page 17 of 18
    May, J., and Brown, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018   Page 18 of 18
    

Document Info

Docket Number: 40A05-1505-CR-473

Filed Date: 6/20/2018

Precedential Status: Precedential

Modified Date: 6/20/2018