Jessica Mitchell v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Feb 06 2018, 9:52 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
Carlos I. Carrillo Curtis T. Hill, Jr.
Greenwood, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jessica Mitchell, February 6, 2018
Appellant-Defendant, Court of Appeals Case No.
79A02-1708-CR-2023
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Randy J. Williams,
Appellee-Plaintiff. Judge
Trial Court Cause No.
79D01-1611-F6-1009
Najam, Judge.
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Statement of the Case
[1] Jessica Mitchell appeals her convictions and sentence for neglect of a
dependent, as a Level 6 felony, and possession of a synthetic drug or a synthetic
drug lookalike substance, as a Class A misdemeanor. Mitchell raises the
following four issues for our review:
1. Whether the State presented sufficient evidence to support
Mitchell’s conviction for possession.
2. Whether the trial court committed fundamental error
when it admitted certain evidence.
3. Whether Mitchell’s convictions violate Indiana’s
prohibitions against double jeopardy.
4. Whether Mitchell’s three-year aggregate sentence, with
180 days executed and the remainder to be served on
home detention, is inappropriate in light of the nature of
the offenses and her character.
[2] We affirm.
Facts and Procedural History
[3] On November 8, 2016, Mitchell, while pushing her two-month-old infant in a
stroller, collapsed in the lobby of the Quality Inn Suites in Lafayette. Toby
Gregory, a hotel clerk, observed Mitchell fall multiple times and that she
“appear[ed] to be out of it.” Appellant’s App. Vol. II at 11. Gregory contacted
the Lafayette Police Department. While officers were en route to the scene,
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Charles Kalinowski, a hotel guest, observed Mitchell “laying [sic] on the
ground” next to a stroller. Tr. Vol. II at 18. Kalinski observed that Mitchell
was “completely incoherent” and speaking “gibberish.” Id. at 19. Kalinski
further noticed a “very pungent[,] acrid odor” that he had “never . . . come
across” before. Id. at 18.
[4] Lafayette Police Department Officers William Snider and Brian Landis arrived
on the scene. The officers observed that Mitchell had droopy eyes, poor motor
skills, slurred and hard-to-understand speech, and slow movements. When
Officer Snider asked Mitchell for identification, Mitchell “almost fell asleep”
while producing it. Id. at 8. Officer Landis, who has more than fourteen years
of police experience, believed the Mitchell’s impairment was due to “something
other than alcohol.” Id. at 28.
[5] The officers asked Mitchell if she had taken any drugs, and Mitchell initially
denied any drug use. The officers then asked if she had taken any prescription
medications specifically, and Mitchell stated that she had taken some
hydrocodone and an antibiotic. She denied any use of alcohol or illegal drugs.
[6] The officers then took turns reviewing the hotel’s surveillance video. After
Officer Landis had reviewed that video, he told Mitchell that “it was apparent
that she was impaired on something.” Id. at 29. Mitchell then admitted that
“she had smoked spice,” or synthetic marijuana, earlier that day. Id.
[7] The officers then placed Mitchell under arrest for neglect of a dependent.
Incident to her arrest, the officers searched her purse and stroller, which were
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near Mitchell’s person in the hotel lobby. In the stroller, the officers found a
burnt, homemade cigarette that contained within it a leafy substance. Based on
his training and experience, Officer Landis concluded that that substance
“appeared . . . to be some type of synthetic drug,” namely, synthetic marijuana.
Id. at 30. The officers also found plastic bags that contained the same
substance. The State then charged Mitchell with neglect of a dependent, as a
Level 6 felony, and with possession of a synthetic drug or a synthetic drug
lookalike substance, as a Class A misdemeanor. The trial court found Mitchell
guilty after a bench trial.
[8] The court then held a sentencing hearing. Following that hearing, the court
found as aggravating circumstances Mitchell’s criminal history and her history
of substance abuse. The court also found Mitchell’s history of not cooperating
with the probation department and her child support arrearage to be
aggravating circumstances. As a mitigating circumstance, the court found that
Mitchell has “mental health issues” that she is “trying to address . . . as best as
[she] can.” Id. at 62. The court ordered Mitchell to serve an aggregate term of
three years, with 180 days to be served in the Tippecanoe County Jail and the
remainder to be served on home detention. This appeal ensued.
Discussion and Decision
Issue One: Sufficiency of the Evidence for the Possession Conviction
[9] On appeal, Mitchell first asserts that the State failed to present sufficient
evidence to support her conviction for possession of a synthetic drug or a
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synthetic drug lookalike substance, as a Class A misdemeanor. In such appeals,
“[o]ur standard of review is deferential to the factfinder: ‘we consider only the
evidence and reasonable inferences most favorable to the convictions, neither
reweighing evidence nor reassessing witness credibility.’” Taylor v. State, 86
N.E.3d 157, 163 (Ind. 2017) (quoting Griffith v. State, 59 N.E.3d 947, 958 (Ind.
2016)). “We will reverse only if no reasonable factfinder could find [the
defendant] guilty.” Id. at 163-64.
[10] According to Mitchell, the State’s evidence does not show that she had actual
or constructive possession of the stroller in which the synthetic marijuana was
found.1 “A person actually possesses contraband when she has direct physical
control over it.” Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). We agree with
the State that the evidence most favorable to the judgment permitted the fact-
finder to conclude that Mitchell had direct physical control over the stroller
and, therefore, the synthetic marijuana. The evidence established that Mitchell
was in the hotel lobby pushing her two-month-old infant in the stroller at the
time she initially collapsed, which was shortly followed by the officers arriving
1
In the trial court, Mitchell’s counsel moved for a directed verdict on the State’s possession charge on the
basis that the State did not produce scientific evidence to show that the substance was synthetic marijuana
and also because the officers’ testimony showed that they did not field test the synthetic marijuana. But the
trial court properly rejected that argument on the basis of the officers’ observations, training, and experience.
And Mitchell does not present this purported issue on appeal with argument supported by cogent reasoning.
See Ind. Appellate Rule 46(A)(8)(a). Moreover, insofar as Mitchell’s brief conflates her sufficiency challenge
with her challenge under Miranda v. Arizona, 384 U.S. 436 (1966), and double jeopardy, we address those
other arguments below.
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on the scene. The officers then discovered the synthetic marijuana in the
stroller.
[11] Mitchell asserts on appeal that that evidence does not demonstrate direct
physical control because, while she was collapsed on the floor, Gregory
attended to the infant in the stroller. But the fact-finder was free to conclude
that the contraband found inside the stroller was placed there prior to Mitchell’s
collapse and the arrival of Gregory and the officers. As such, we hold that the
State’s evidence is sufficient to demonstrate Mitchell’s actual possession of the
synthetic marijuana.
Issue Two: Fundamental Error
[12] Mitchell next asserts that the trial court erred when it permitted the officers to
testify that Mitchell had said to them, in the hotel lobby, that she had ingested
synthetic marijuana on November 8, 2016. In particular, Mitchell asserts that
the trial court erred because those statements were made while she was subject
to a custodial interrogation, yet the officers had not Mirandized her pursuant to
that purported interrogation.2
[13] Mitchell did not object in the trial court to the admission of her statements
under the theory she now raises on appeal. As such, to demonstrate error on
2
Mitchell also asserts that the trial court erred when it permitted the evidence seized from the stroller as a
search incident to her arrest. However, when the State sought to admit that evidence in the trial court,
Mitchell’s counsel informed the court that he had “[n]o objection.” Tr. Vol. II at 33. Our Supreme Court
has held that fundamental error is not available in such circumstances. Halliburton v. State, 1 N.E.3d 670,
678-79 (Ind. 2013). As such, we do not consider this argument on appeal.
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appeal, she must show that the alleged error was a fundamental error. To show
a fundamental error, Mitchell must “show that the trial court should have
raised the issue sua sponte due to a blatant violation of basic and elementary
principles, undeniable harm or potential for harm, and prejudice that makes a
fair trial impossible.” Taylor, 86 N.E.3d at 162.
[14] However, Mitchell does not discuss the fundamental-error standard of review in
her brief on appeal, and she does not relate her evidentiary challenge to that
standard. As such, she does not demonstrate how the purported evidentiary
error she now raises meets the high burden of having made a fair trial
impossible. See Ind. Appellate Rule 46(A)(8)(a). She also does not cite any
authority for her apparent position that the trial court should have raised this
evidentiary issue sua sponte despite the silence of Mitchell’s counsel with respect
to the theory Mitchell now raises on appeal. See id. Although claims of
fundamental error may be raised for the first time on appeal, it remains the
appellant’s burden to persuade this Court that such error occurred. We
conclude that Mitchell has not met that burden.
Issue Three: Double Jeopardy
[15] We next consider Mitchell’s argument that her conviction for neglect of a
dependent, as a Level 6 felony, and her conviction for possession of synthetic
drug or a synthetic drug lookalike substance, as a Class A misdemeanor, violate
the actual-evidence test under Article 1, Section 14 of the Indiana Constitution.
We review alleged double jeopardy violations de novo. Ellis v. State, 29 N.E.3d
792, 797 (Ind. Ct. App. 2015), trans. denied.
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[16] Article 1, Section 14 of the Indiana Constitution prohibits double jeopardy,
providing that “[n]o person shall be put in jeopardy twice for the same offense.”
As the Indiana Supreme Court has explained:
In Richardson v. State, 717 N.E.2d 32 (Ind. 1999)[,] this Court
concluded that two or more offenses are the same offense in
violation of article 1, section 14 if, with respect to either the
statutory elements of the challenged crimes or the actual evidence
used to obtain convictions, the essential elements of one
challenged offense also establish the essential elements of another
challenged offense. Under the actual evidence test, we examine
the actual evidence presented at trial in order to determine
whether each challenged offense was established by separate and
distinct facts. Id. at 53. To find a double jeopardy violation
under this test, we must conclude that there is “a reasonable
possibility that the evidentiary facts used by the fact-finder to
establish the essential elements of one offense may also have
been used to establish the essential elements of a second
challenged offense.” Id. The actual evidence test is applied to all the
elements of both offenses. “In other words . . . the Indiana Double
Jeopardy Clause is not violated when the evidentiary facts establishing
the essential elements of one offense also establish only one or even
several, but not all, of the essential elements of a second offense.” Spivey
v. State, 761 N.E.2d 831, 833 (Ind. 2002).
Our precedents “instruct that a ‘reasonable possibility’ that the
jury used the same facts to reach two convictions requires
substantially more than a logical possibility.” Lee v. State, 892
N.E.2d 1231, 1236 (Ind. 2008) (citing cases). The reasonable
possibility standard “fairly implements the protections of the
Indiana Double Jeopardy Clause and also permits convictions for
multiple offenses committed in a protracted criminal episode
when the case is prosecuted in a manner that insures that
multiple guilty verdicts are not based on the same evidentiary
facts.” Richardson, 717 N.E.2d at 53 n.46. The existence of a
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“‘reasonable possibility’ turns on a practical assessment of whether the
[fact finder] may have latched on to exactly the same facts for both
convictions.” Lee, 892 N.E.2d at 1236. We evaluate the evidence
from the jury’s perspective and may consider the charging
information, jury instructions, and arguments of counsel. Id. at
1234.
Garrett v. State, 992 N.E.2d 710, 719-20 (Ind. 2013) (emphases added; last
alteration original). Thus, under Spivey, in order for there to be a double
jeopardy violation under the actual-evidence test, the evidentiary footprint for
all the elements required to prove one offense must be the same evidentiary
footprint as that required to prove all the elements of another offense. Berg v.
State, 45 N.E.3d 506, 510 (Ind. Ct. App. 2015).
[17] Mitchell’s two convictions do not violate the actual-evidence test. Her
conviction for neglect of a dependent required, among other things, proof that
Mitchell had “the care of a dependent.” See Ind. Code § 35-46-1-4(a) (2016).
Mitchell’s conviction for possession of a synthetic drug or a synthetic drug
lookalike substance required no such evidence. See I.C. § 35-48-4-11.5(c).
Accordingly, Mitchell’s two convictions are not contrary to the actual-evidence
test. See Berg, 45 N.E.3d at 510.
[18] Still, while Mitchell does not clearly set this theory out in her brief, in substance
her double-jeopardy argument appears to be that her possession conviction was
a factually lesser-included offense to her neglect conviction. Insofar as this was
Mitchell’s intended double-jeopardy theory, we reject it. The factual predicate
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for her neglect conviction was her impairment, not her possession of the
contraband. Thus, there is no double jeopardy violation here.
Issue Four: Indiana Appellate Rule 7(B)
[19] Finally, Mitchell asserts that her three-year aggregate sentence, with 180 days to
be served in the Tippecanoe County Jail and the remaining two and one-half
years to be served on home detention, is inappropriate in light of the nature of
the offenses and her 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.” This Court
has frequently recognized that “[t]he advisory sentence is the starting point the
legislature has selected as an appropriate sentence for the crime committed.”
See, e.g., Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017). And the
Indiana Supreme Court has explained that:
The principal role of appellate review should be to attempt to
leaven the outliers . . . but not achieve a perceived “correct”
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).
[20] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
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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).
[21] Mitchell’s argument that her sentence is inappropriate with respect to the nature
of the offenses is that the State presented insufficient evidence of her offenses,
that the trial court improperly admitted her admission and the synthetic
marijuana against her, and that the same evidence was used to convict her of
both offenses. As explained above, we have already rejected those arguments.
Mitchell also notes that the child was not injured by her actions and is now in
the care of the child’s biological father. Regarding her character, Mitchell
states: she has a GED, she has mental illnesses, she has sought mental health
counseling and substance abuse treatment, she does not have a felony
conviction, and she is trying to be more responsible with respect to her child
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and others. She also states that she is “not the worst of the worst.” Appellant’s
Br. at 21.3
[22] We cannot say that Mitchell’s three-year aggregate term, with 180 days
executed and the remainder to be served on home detention, is inappropriate.
Mitchell’s offenses put a two-month-old infant in unsafe circumstances. She
also possessed synthetic marijuana in close proximity to that infant. Further,
Mitchell’s character, which includes some criminal history and extensive
substance abuse, does not warrant this Court’s intervention in the carefully
tailored sentence imposed by the trial court. We affirm Mitchell’s sentence.
Conclusion
[23] In sum, we affirm Mitchell’s convictions and sentence.
[24] Affirmed.
Mathias, J., and Barnes, J., concur.
3
Mitchell further states that her “conduct was a part of the same criminal episode” and, as such, “should
have ran [sic] concurrently instead of consecutively.” Appellant’s Br. at 22. This passing statement in
Mitchell’s brief is not an argument supported by cogent reasoning, and we do not consider it. App. R.
46(A)(8)(a).
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