Donald A. Everling v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 26 2020, 8:44 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David W. Stone IV Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Catherine Brizzi
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Donald A. Everling, October 26, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-930
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Mark K. Dudley,
Appellee-Plaintiff. Judge
Trial Court Cause No.
48C06-1807-F2-1914
Najam, Judge.
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Statement of the Case
[1] Donald A. Everling appeals his conviction for possession of paraphernalia, as a
Class C misdemeanor, and his sentence. Everling does not appeal his
conviction for dealing in methamphetamine, as a Level 2 felony, or his
adjudication as a habitual offender. He raises the following two issues for our
review:
1. Whether the State presented sufficient evidence to support
his conviction.
2. Whether his sentence is inappropriate in light of the nature
of the offenses and his character.
[2] We affirm.
Facts and Procedural History
[3] While Everling was on probation in another cause number, officers searched his
residence. There, they discovered about fourteen grams of methamphetamine
in a safe; aluminum foil holding additional methamphetamine in the oven;
hollowed-out pens; multiple glass smoking devices; two digital scales; and a
syringe containing an unknown substance. Officers also retrieved security
footage from inside the home that showed Everling smoking apparent
methamphetamine and accessing the safe.
[4] The State charged Everling in relevant part with dealing in methamphetamine,
as a Level 2 felony; possession of paraphernalia, as a Class C misdemeanor;
and being a habitual offender. A jury found Everling guilty on each of those
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allegations. After a sentencing hearing, the court found the following
aggravators: “1) criminal history; 2) multiple counts; 3) on probation at the
time the instant offense[s were] committed; 4) repeat behavior; 5) in need of
services best provided by the DOC; and 6) lack of initiative to address ongoing
substance abuse problem.” Appellant’s App. Vol. II at 29. The court found no
mitigators. The court then sentenced Everling to an aggregate term of forty-one
and one-half years incarceration. This appeal ensued.
Discussion and Decision
Issue One: Sufficient Evidence
[5] On appeal, Everling first asserts that the State failed to present sufficient
evidence to show that he committed possession of paraphernalia, as a Class C
misdemeanor. According to Everling, his girlfriend also lived at his residence,
and the State failed to show that the contraband was his and not hers.
[6] As we have explained:
In order to prove constructive possession of [contraband], the
State must show that the defendant has both: (1) the intent to
maintain dominion and control over the [contraband]; and (2)
the capability to maintain dominion and control over the
[contraband]. Wilkerson v. State, 918 N.E.2d 458, 462 (Ind. Ct.
App. 2009) (emphasis added) (quoting Gee v. State, 810 N.E.2d
338, 340 (Ind. 2004)). “The capability prong may be satisfied by
‘proof of a possessory interest in the premises in which [the
contraband is] found.’” Monroe v. State, 899 N.E.2d 688, 692
(Ind. Ct. App. 2009) (citing Gee, 810 N.E.2d at 340). “This is so
regardless of whether the possession of the premises is exclusive
or not.” Id. . . .
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With regard to the intent prong of the test, where, as here, a
defendant’s possession of the premises upon which contraband is
found is not exclusive, the inference of intent to maintain
dominion and control over the [contraband] must be supported
by additional circumstances pointing to the defendant’s
knowledge of the nature of the [contraband] and [its] presence.
Id. (citing Gee, 810 N.E.2d at 341). Those additional
circumstances include:
(1) incriminating statements made by the defendant, (2)
attempted flight or furtive gestures, (3) location of
substances like drugs in settings that suggest
manufacturing, (4) proximity of the contraband to the
defendant, (5) location of the contraband within the
defendant’s plain view, and (6) the mingling of the
contraband with other items owned by the defendant.
Wilkerson, 918 N.E.2d at 462.
Houston v. State, 997 N.E.2d 407, 410 (Ind. Ct. App. 2013). In addition to the
above six circumstances, we have also recognized that the nature of the place in
which the contraband is found can be an additional circumstance that
demonstrates the defendant’s knowledge of the contraband. E.g., Carnes v. State,
480 N.E.2d 581, 587 (Ind. Ct. App. 1985), trans. denied. Those enumerated
circumstances are nonexhaustive; ultimately, our question is whether a
reasonable fact-finder could conclude from the evidence that the defendant
knew of the nature and presence of the contraband. Johnson v. State, 59 N.E.3d
1071, 1073 (Ind. Ct. App. 2016).
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[7] Here, a reasonable fact-finder could readily conclude that Everling knew of the
nature and presence of the paraphernalia found inside his residence. 1 The
State’s evidence included video recordings of him accessing the safe where the
fourteen grams of methamphetamine were located. Those video recordings
also showed him smoking methamphetamine in a piece of aluminum foil, and
the State seized aluminum foil holding methamphetamine from inside the
stove. And Everling’s girlfriend testified that he kept most of his possessions in
the living room and slept on the couch there; hollowed-out pens and several
glass smoking devices were discovered near the living room couch.
Accordingly, the State presented sufficient evidence from which the fact-finder
could conclude that Everling was guilty of possession of paraphernalia, as a
Class C misdemeanor.
Issue Two: Sentence
[8] Everling also argues that his aggregate sentence of forty-one and one-half years
is inappropriate in light of the nature of the offenses and his character. As our
Supreme Court has made clear:
The Indiana Constitution authorizes appellate review and
revision of a trial court's sentencing decision. Ind. Const. art. 7,
§§ 4, 6; Serino v. State, 798 N.E.2d 852, 856 (Ind. 2003). This
authority is implemented through Indiana Appellate Rule 7(B),
which permits an appellate court to revise a sentence if, after due
consideration of the trial court's decision, the sentence is found to
1
There is no dispute that Everling had a possessory interest in his own residence.
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be inappropriate in light of the nature of the offense and the
character of the offender. Serino, 798 N.E.2d at 856. The
principal role of such review is to attempt to leaven the outliers.
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). The burden
is on the defendant to persuade the reviewing court that the
sentence is inappropriate. Bowman v. State, 51 N.E.3d 1174, 1181
(Ind. 2016).
Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018) (per curiam).
[9] Further:
Indiana Appellate Rule 7(B) is a “rare” avenue for appellate relief
that is reserved “for exceptional cases.” Livingston v. State, 113
N.E.3d 611, 612-13 (Ind. 2018) (per curiam). Even with Rule
7(B), “[s]entencing is principally a discretionary function in
which the trial court’s judgment should receive considerable
deference.” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)
(quoting Cardwell, 895 N.E.2d at 1222). “Such deference should
prevail 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).” Id. Absent such a “sufficiently
compelling” evidentiary basis, we will not “override the decision
of the . . . trial court.” Id.
Sorenson v. State, 133 N.E.3d 717, 728 (Ind. Ct. App. 2019) (alteration and
omission original to Sorenson), trans. denied.
[10] Aside from the Class C misdemeanor conviction, the jury found Everling guilty
of a Level 2 felony and for being a habitual offender. A Level 2 felony carries a
sentence between ten and thirty years, with an advisory sentence of seventeen
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and one-half years. Ind. Code § 35-50-2-4.5 (2020). The habitual offender
adjudication carries an additional term of six to twenty years. I.C. § 35-50-2-
8(i)(1). The court sentenced Everling to twenty-five years on the Level 2 felony,
enhanced by an additional sixteen and one-half years for being a habitual
offender.
[11] Everling does not meet the burden on appeal of showing that his sentence is
inappropriate. He acknowledges his substantial criminal history, which
includes fifteen prior felony convictions and twelve prior misdemeanor
convictions. He also committed the instant offenses while on probation in
another cause. He presents no evidence that we are obliged to credit that
“portray[s] in a positive light the nature of the offense (such as accompanied by
restraint, regard, and a lack of brutality)” or his character, such as “substantial
virtuous traits or persistent examples of good character.” Stephenson, 29 N.E.3d
at 122. Accordingly, we cannot say that his aggregate sentence is inappropriate,
and we affirm his sentence.
[12] Affirmed.
Bradford, C.J., and Mathias, J., concur.
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