Court of Ap peals of Indiana | Memorandum Opinion 34A04

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### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
A TTORNEY FOR A PPELLANT Gary A. Cook Peru, Indiana A TTORNEY S FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana



### I N THE 

# COURT OF APPEALS OF INDIAN A

Jackie Butler , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. August 31, 2016 Court of Appeals Cause No. 34A04

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- 2238 Appeal from the Howard Superior Court The Honorable George A. Hopkins, Judge Cause No. 34D04

- 1506

- F5

- 65


### Riley , Judge .Court of Ap peals of Indiana | Memorandum Opinion 34A04

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### STATEMENT OF THE CASE
[1] Appellant

- Defendant, Jackie Butler ( Bulter ), appeals his conviction and
sentence for unl awful possession of a firearm by a serious violent felon, a Level 4 felony

.
[2] We affirm and remand with instructions.


### ISSUE S
[3] Butler raises three issue s on appeal, which we restate as the following : (1) Whether there was sufficient evidence to support the portion of Butler’s conviction for possession of a firearm; (2) Whether Butle r’s sentence is inappropriate in light of the nature of the offense and his character ; and (3) Whether the trial court committed a sentencing error on the habitual offender en hancement.


### FACTS AND PROCEDURAL HISTORY
[4] From October 2014, Butler was Jill Wilson’s ( Wilson ) live

- in boyfriend. Also living at Wilson’s apartment in Kokomo, Indiana , was her adult son, Dominic Wilson (Dominic) and her fifteen

- year - old daughter. On June 15, 2015, a t approximately 3:45 p.m. , Dominic came home from work a nd he vio lently banged on the door. Butler let Dominic in and remarked on Dominic ’s errant conduct

. Wilson, who was at home, heard Butler call Dominic “a punk a s s bitch , ” and Dominic call ed Butler “a bitch

. ” (Transcript p. 131). A scuffle ensued. Wilson pleade d with Dominic not to fight Butler since he had aCourt of Ap peals of Indiana | Memorandum Opinion 34A04

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- 2238 | August 31, 2016 Page 3 of 15 pacemaker. When the two stopped fighting, Dominic went upstairs to an other apartment to help a friend mov e out, and Butler went to a neighbor’s house down the street

. During the fight, Dominic’s wallet had fallen on the floor

. Dominic had just been paid , and w hen Wilson peeked through his wallet, she saw that i t was empty. After a short while, Dominic r eturned to Wilson’s apartment to retrieve his wallet, but Wilson informed Dominic that the wallet

was empty . Dominic then stated, “that bitch ass nigga took my money , ” and he ran down the street to the neighbor’s house to confront Butler. (Tr. p. 131).

[5] When Dominic confronted Butler , Butler denied the allegations

. Infuriated by his denial s , Dominic returned to his mother’s apartment and threw Butler’s clothes out of the apartment. Shortly thereafter, Butler returned to Wilson’s apartment, and Wilson y ell ed at him for taking Dominic’s money. Annoyed by Wilson’s allegations , Butler forced Wil son into the bedroom and threw her on the bed. Butler proceeded to choke Wilson

. Be cause he had a pacemaker, Wilson did not want to kick Butler , and instead wiggl ed herself out of Butler’s hold a nd slid off the bed . Butler followed Wilson and tried to s mother her with

a pillow . To free herself, Wilson kicked Butler and escaped from the room

. Dominic, who was upstairs in another apartment, heard screams and commotion originating from his apartment. A ccompanied by his friend, Dominic opened Wilson’s apartment door and realized that Butler had assaulted Wilson

. A fight ensued. During the fight, Wilson exited her apartment

.Court of Ap peals of Indiana | Memorandum Opinion 34A04

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- 2238 | August 31, 2016 Page 4 of 15 [6] Once outside her apartment, Wilson encountered Sarah Tomlinson (Tomlinson), Dominic’s acquaintance. Wilson was coughing, and T omlinson directed Wilson to get away from her apartment and seek safety in hers. At that moment, Tomlinson and Wilson heard two gunshots, and they both ran to Tomlinson’s apartment for safety. As they neared Tomlinson’s apartment, they saw Butler running toward them , and according to Tomlinson, Butler was holding a “very small gun.” (Tr. p. 168). Tomlinson and Wilson entered Tomlinson’s apartment, and thereafter Tomlinson called the police.

[7] Nu merous Kokomo Police Department and Howard County Sheriff’s Department officers responded to a dispatch of an active shooter at Wilson’s apartment complex. The officers knocked on Wilson’s apartment door , and a short while later, Butler emerged and was arrested

. Afterward , t he officer s entered Wilson’s apartment and conducted a protective sweep and then left. A search warrant to search Wilson’s apartment was subsequently obt ained , and d uring the search, t he officers found a semiautomatic pistol with a loaded magazine hidden unde rneath a mattress in the southeast bedroom

. They also found an ammunition box with about forty

- five bullets. In addition , there was a bullet hole in the door, but the office r s were unable to find a fired bullet or casing.

[8] On June 11 , 2015, the State filed an Information, charging Butler with Count I, criminal recklessness , a Level 5 felony; Count II, strangulation , a Level 6 felony; and Count III, domestic battery , a Class A misdemeanor. On July 9, 2015, the State added Count IV, un lawful possession of a firearm by a seriousCourt of Ap peals of Indiana | Memorandum Opinion 34A04

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- 2238 | August 31, 2016 Page 5 of 15 violent felon, a Level 4 felony, and at the same time, the State filed a habitual

o ffender enhancement

.
[9] On October 20 through October 21, 2015, the trial court conducted Butler’s jury trial . The trial was spli t into three phases

. The first phase of trial involved all charges except the serious violent felon (SVF) portion of Count IV . At the close of the evidence, the jury acquitted Butler of the criminal recklessness charge and returned guilty verdicts for strangulation, domestic battery, and posses sion of a firearm. In the second phase, the jury found Butler guilty of unlawful possession of a firearm by a SVF

. Finally, in the third phase of Butler’s trial, the jury adjudicated Butler as a n habitual o ffender.

[10] On November 20, 2015, the trial court conducted Butler’s sentencing hearing , and at the close of the evidence , the trial court imposed concurrent sentences of one and one

- half years for strangulation, one year for domestic battery, and ten year s for unlawful possession of a firearm by a SVF

. Due to his habitual offender adjudication, Butler’s sentence was enhanced by ten years, to be serve d consecutively to his other ten
- year sentence

. As such, Butler’s a ggregate executed term was twenty years . In addition, the trial court ordered Butler’s instant sentence s to run consecutively with his other sentence in Cause Number 34D04

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— unlawful possession of a firearm by SVF and resisting law enforcement, where the trial court imposed a five

- year sentence.

[11] Butler now appeals. Additional facts will be provided as necessary.Court of Ap peals of Indiana | Memorandum Opinion 34A04

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### DISCUSSION AND DECISION I

. Sufficiency of the Evidence
[12] Butler asserts that there was insufficient evidence to support actual possession of the firearm in question

. When reviewing a challenge to the sufficiency of the evidence, we do not reweigh evidence or judge the credibility of witnesses. Duncan v. State , 23 N.E.3d 805, 812 (Ind. Ct. App. 2014), trans. denied

. Instead, we consider only the evidence and the reaso nable inferences supporting the verdict. Id

. If there is substantial evidence of probative value from which a reasonable trier of fact could have found the defendant guilty of the crime charged beyond a reasonable doubt, then the judgment will not be dis turbed. Id

. Further, a conviction may be based on circumstantial evidence, and it is not necessary that the evidence overcome every reasonable hypothesis of innocence. Boggs v. State , 928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied.

[13] The State presented evidence that Butler possessed a firearm. At trial, Tomlinson stated that she and Dominic were friends but no longer talked since Dominic was serving time in prison. Tomlinson testified that on the day in question, she and other resid ents from her apartment complex were drawn to Wilson’s apartment due to an altercation. Tomlinson testified that when she arrived at Wilson’s apartment, the back door was wide open and she observed Butler smothering Wilson. When Wilson exited her apartme nt, Tomlinson directed Wilson to her apartment for safety. Tomlinson further stated that as they were walking to her apartment, they heard gunshots originating fromCourt of Ap peals of Indiana | Memorandum Opinion 34A04

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- 2238 | August 31, 2016 Page 7 of 15 Wilson’s apartment. Both ran to Tomlinson’s apartment for safety. However, before going inside, Tomlinson stated that they were met by Butler and he was holding a small gun. Tomlinson indicated that Wilson was not paying attention to Butler, and once inside her apartment, she informed Wilson that Butler was holding a gun. Throughout Butler’ s jury trial, Tomlinson unequivocally testified that she saw Butler holding a gun and he was about fifteen feet from her

. In addition, Tomlinson identified the gun found in Wilson’s apartment as the same gun she saw Butler holding.

[14] Butler ’s contention i s that, Tomlinson, the State’ s only eyewitness, was incredibly dubious in her testimony because (1) Tomlinson was the only person who stated that she saw him with a gun; (2) Tomlinson was in a romantic relationship with Dominic, thus making her testimony b iased; and (3) Wilson, who was beside Tomlinson, did not observe him holding a gun.

[15] Under the narrow limits of the incredible dubiosity rule, a court may impinge upon a jury’s function to judge the credibility of a witness. Gray v. State , 871 N.E.2d 408 , 416 (Ind. Ct. App. 2007), trans. denied . For testimony to be disregarded based on a finding of incredible dubiosity, it must be inherently contradictory, wholly equivocal, or the result of coercion. Id

. Moreover, there must also be a complete lack of circumstantial evidence of the defendant’s guilt. Id . at 417. The rule is rarely applicable. Id

.
[16] T he incredible dubiosity rule applies only if a witness, within her own testimony, contradicts herself. Butler’s argument s misappl y the incredibleCourt of Ap peals of Indiana | Memorandum Opinion 34A04

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- 2238 | August 31, 2016 Page 8 of 15 dubiosit y rule by speculating about Tomlinson’s motive or bias, and the fact that Tomlinson’s testimony was contradicted by Wilson, who testified that she did not see Butler with a gu n . Notwithstanding his claims , we find that the evidence supporting Butler’s possession of a firearm is sufficient to support Butler’s guilt.

[17] P ossession of a handgun may be established through either actual or constructive possession. Wallace v. State , 722 N.E.2d 910, 913 (Ind. Ct. App. 2000). Actual possession occurs when a p erson has direct physical control over an item. Id

. Constructive possession occurs when a person has both the intent and the capability to maintain dominion and control over the item. Id

.
[18] Here, the State presented sufficient evidence beyond a reasonabl e doubt to establish constructive possession. Constructive possession can be established if the defendant has both the intent and the capability to maintain dominion and control over the item. Gee v. State , 810 N.E.2d 338, 340 (Ind. 2004). The proof of a possessory interest in the premises on which the item is found is adequate to show the capability to maintain dominion and control over the item in question. Id

. In essence, the law infers that the party in possession of the premises is capable of exer cising dominion and control over all items on the premises. Id . at 340

- 4 1. And this is so whether possession of the premises is exclusive or not. Id

. Here, we find that, even though Butler shared an apartment with Wilson and her two children, Butler had a possessory interest in the house because he lived there. Butler was capable of maintaining dominion and control over the gun because the gun was recovered from the bedroom heCourt of Ap peals of Indiana | Memorandum Opinion 34A04

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- 2238 | August 31, 2016 Page 9 of 15 shared with Wilson

. As such, the State established the capability prong o f constructive possession

.
[19] However, when a defendant’ s possession of the premises where the item is found is not exclusive, then the inference of intent to maintain dominion and control over the item must be supported by additional circumst ances pointing t o the defendant’ s knowledge of the nature of the item and its presence. Id

. The “additional circumstances” can be shown by various means: (1) incriminating statements made by the defendant, (2) attempted flight or furtive gestures, (3) location of substa nces like drugs in settings that suggest manufacturing, (4) proximity of the item to the defendant, (5) location of the item within the defendant’s plain view, and (6) the mingling of the item with other items owned by the defendant. Id

.
[20] At Butler’s jury trial, t he State introduced a picture of Wilson’s bedroom as Exhibit 2. Wilson testified , “[ T ] hat ’ s my bedroom, that ’s my bed and that’ s the gun that they found .” (Tr. p. 161). In addition, Wilson testified that the last time she saw Butler, he was in her bedroom. Also, the jury heard evidence that the gunshots originated from Wilson’s apartment, and that Dominic informed Wilson that it was Butler who fir ed the shots. In light of the evidence that Butler was last seen in Wilson’s bedroom, the gunshots originat ed from Wilson’s apartment, and the fact that the gun was found under his bedroom
mattress , Butler’s living quarters, we conclude that Butler was capable of maintaining dom inion and contro l over the gun.Court of Ap peals of Indiana | Memorandum Opinion 34A04

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- 2238 | August 31, 2016 Page 10 of 15 [21] Based on the foregoing , we conclude that the State proved specific facts that provided a solid basis to support a reasonable inference that Butler possessed the gun , and we therefore reject Butler’s claim that there was insu fficient evidence.
II . Inappropriate Sentence 1

[22] Ind. Appellate Rule 7(B) empowers us to independently review and revise sentences authorized by statute if, after due consideration, we find the trial court's decision inappropriate in light of the nature of the offense and the character of the offender. Reid v. State , 876 N.E.2d 1114, 1116 (Ind. 2007). The “nature of offense” compares the defendant’ s actions with the required showing to sustain a conviction under the charged offense , Cardwell v. State , 8 95 N.E.2d 1219, 1224 (Ind. 2008), while the “character of the offender” permits a broader consideration of the defendant's character. Douglas v. State , 878 N.E.2d 873, 881 (Ind. Ct. App. 2007). An appellant bears the burden of showing both prongs of the inquiry favor revision of his sentence. Childress v. State , 848

1 Pursuant to Indiana Administrative Rule 9(G)(2)(b) and Indiana Code section 35

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- 13, the presentence investigation (PSI) report must be excluded from public access. However, in this case, the information contained in the PSI report “is essential to th e resolution” of Butler’s claim on appeal. Ind. Admin. Rule 9(G)(7)(a)(ii)(c). Accordingly, we have included confidential information in this decision only to the extent necessary to resolve the appealCourt of Ap peals of Indiana | Memorandum Opinion 34A04

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- 2238 | August 31, 2016 Page 11 of 15 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as appropriate 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 a myriad of other considerations that come to light in a given case. Cardwell , 895 N.E.2d at 1224

.
[23] The advisory sentence is the starting point the legislature has selected as an appropriate sentence for the crime committed. Abbott v. State , 961 N.E.2d 1016, 1019 (Ind. 2012). The sentencing ran ge for a Level 4 felony is two to twelve years, with an advisory sentence of six years. I nd

. C ode § 35

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- 5.5. In the instant case , the trial court sentenced Butler to ten years for unlawful possession of a firearm by an SVF , a Level 4 felony.

[24] Butler’s appellate brief does not make a proper argument challenging his sentencing based on his character and nature of the offense . Accordingly, he has waived this argument on appeal. Ind. Appellate Rule 46(A)(8)(a). Waiver notwithstanding, Butler’ s claims fail

.
[25] With respect to the nature of the offense, a fter Wilson confronted Butler about taking Dominic’s money, Butler beat and choked Wilson. Butler again choked Wilson with a pillow whe n she tried to escape. Finally, when Wilson fled from her house and was walking to Tomlinson ’s house for safety, Butler met them and he was holding a gun. Butler’s armed pursuit of Wilson does not render his
sentence inappropriate

.
[26] With respect to his character, Butler’s entire adult life has been spent committing crimes. Butler’s criminal history began in 1995 when he wasCourt of Ap peals of Indiana | Memorandum Opinion 34A04

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- 2238 | August 31, 2016 Page 12 of 15 charged with operating a motor vehicle without receiving a license . In the same year, h e was charged with resisting law enforcemen t, but that charge was later dismissed

. In the following year, 1996, Butler was charged with theft. Two other outstanding charges for disorderly conduct against Butler were later dismissed pursuant to h is guilty plea to theft. The PSI shows that Butler’s theft probation was revoked twice

. In December of 1997, Butler was convicted of false informing and he was placed on probation for one year . In 1998, Butler pleaded guilty to possessing marijuana and he received another year of probation. In th e same month, Butler was charged with dealing in a narcotic drug and he was sentenced to ten years, with six years executed and the remainder suspended to probation. In 2001, Butler was charged with operating a vehicle without having a license and was pla ced on one year of unsupervised probation

. In March of 2002, Butler was again convicted of operating a motor vehicle without having been licensed and was sentenced to ten days in jail. In June of 2002, Butler was charged with resisting law enforcement an d was sentenced to six months of unsupervised probat ion. In September of 2002, Butler was charged with domestic battery and false informing, but those charges were dismissed pursuant to a plea agreement in another cause. In October of 2002, Butler was c o nvicted of possessing cocaine and was sentenced to three years in the DOC. Two years of Butler’s previously

- suspended drug dealing sentence were revoked based on Butler’s cocaine

- possession conviction

. Between 2004 and 2005, Butler was charged with resis ting law enforcement, domestic battery, and false informing

. I n June 2005, Butler was charged with possessing marijuana and was sentenced to two years in the DOC with one yearCourt of Ap peals of Indiana | Memorandum Opinion 34A04

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- 2238 | August 31, 2016 Page 13 of 15 suspended to probation. In July of 2006 , a petition to revoke Butler’s marijuana

- possession sentence was filed

. Later that month, Butler was charged with d omestic battery. In May of 2007, Butler was again charged with domestic batter y . In November of 2007, Butler was charged and convicted of three Counts of dealing in cocaine, and was sentenced to twelve years in the DOC. In 2013, Butler was charged with driving with a suspended license. That same month, Butler was charged with criminal trespass and was sentenced to one year . Shortly before Butler committed the instant crimes, he was charged with unlawful possession of a firearm by an SVF and resisting law enforcement.

[27] At Butler’s sentencing hearing, the trial court stated that it could not ignore Butler’s extensive criminal history. Desp ite the fact that Butler has received lenient sentences in the past, including suspended sentences, fines, and probation, none of these measures were sufficient to deter him from committing the present offense. Accordingly, we decline to exercise our auth ority under Appellate Rule 7(B) to revise Butler’s ten
- year sentence in relation to unlawful possession of a firearm by an SVF

. 

### III

. Habitual Offender Enhancement
[28] Lastly, Butler a r gues , and the State agrees , that the trial court , treated the habitual off ender enhancement as a separate sentence to be served consecutively to his other ten
- year sentence

.
[29] We note that h abitual offender is a status that results in an enhanced sentence. I.C. § 35

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- 8(j). A habitual offender finding does not constitute a separateCourt of Ap peals of Indiana | Memorandum Opinion 34A04

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- 2238 | August 31, 2016 Page 14 of 15 crime nor does it result in a separate sentence. Davis v. State , 935 N.E.2d 1215, 1218 (Ind. Ct. App. 2010), trans. denied

. When imposing a habitual offender enhancement, t he trial court is requi red to “ ‘attach the habitual offender enhancement to the felony conviction with the highest sentence imposed and specify which felony count is being enhanced.’ ” State v. Arnold , 27 N.E.3d 315, 321 (Ind. Ct. App .2015) (quoting I

. C

. § 35

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- 8(j)), trans. denied

.
[30] The abstract of judgment lists a separate sentence for the habitual offender count and does not attach the habitual offender enhancement to Butler’s
sentence s of strangulation, domestic battery or unlawful possession of a firearm by an SVF

. B ecau se the trial court did not specify which of Butler’s convictions was enhanced by his habitual offender adjudication, we remand and instruct the trial court to revise the sentencing statement to reflect which conviction is enhanced.
CONCLUSION

[31] In light of the foregoing, we conclude that (1) there was sufficient evidence to support Butler’s possession of a firearm; (2) Butler’s sentence for unlawful possession of a firearm by an SVF is not in appropriate in light of the nature of the offense and his characte r ; and (3) we remand and instruct the trial court to revise the sentencing order to indicate which conviction is enhanced by Butler’s habitual offender adjudication.

[32] Affirmed and remanded with instructions

.Court of Ap peals of Indiana | Memorandum Opinion 34A04

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- 2238 | August 31, 2016 Page 15 of 15 [33] Bailey, J. and Barnes, J. concur