Court of Appeals of Indiana | Memorandum Decision 19A-CR-123 | July 16, 2019 Page 1 of 14

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.

ATTORNEY FOR APPELLANT

Yvette M. LaPlante

Keating & LaPlante, LLP

Evansville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Ian McLean

Supervising Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

David Dimmett,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

July 16, 2019

Court of Appeals Case No.

19A-CR-123

Appeal from the Vanderburgh 

Superior Court

The Honorable Robert J. Pigman, 

Judge

Trial Court Cause No.

82D03-1707-F2-4523

Crone Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-123 | July 16, 2019 Page 2 of 14

Case Summary

[1] A jury convicted David Dimmett of two level 2 felony drug dealing offenses, 

level 3 felony narcotics possession, two counts of level 6 felony narcotics 

possession, and one misdemeanor count each of narcotics possession and 

marijuana possession. Dimmett subsequently pled guilty to a habitual offender 

count, and the trial court sentenced him to an aggregate thirty-eight-year 

executed term. He now appeals, claiming that the trial court abused its 

discretion in admitting certain evidence of prior bad acts and challenging the 

validity of his guilty plea to the habitual offender count. He also contends that 

his sentence is inappropriate in light of the nature of his offenses and his 

character. We affirm.

Facts and Procedural History

[2] On July 26, 2017, Vanderburgh County Joint Drug Task Force officers detained

Dimmett outside his ex-girlfriend’s residence and engaged in a consensual 

search of his person. The search produced two or three bags full of large 

quantities of drugs, including seventy-four Percocet pills, fifty-nine Adderall 

pills (amphetamine), nineteen tablets containing buprenorphine (Suboxone), 

two and a half oxycodone pills, two halves of an oxymorphone pill, one Viagra

pill, an unidentified green pill, and a cell phone. Dimmett consented to the 

search of his truck and residence. In his truck, officers found marijuana and a 

digital scale, and inside the residence they found a marijuana blunt and a pill 

later determined to be Trazadone. 
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[3] The officers arrested Dimmett and took him to the county jail. During a 

recorded jailhouse call, Dimmett’s father encouraged him to turn his life around 

and get out of the frame of mind of selling drugs. Dimmett admitted that he 

needed to overcome the “madness” and “sickness.” State’s Ex. 12. A search of 

Dimmett’s cell phone produced several text messages to various individuals 

referencing drugs by commonly used, first-letter abbreviations, e.g., “Ps are 

available” and “Just got our Ps,” and a reply text stating, “Did you get some As 

too?” State’s Ex. 14. Dimmett’s outgoing text messages also indicate that he

changed his phone number. Id. Detective Shelly King ran an INSPECT report 

to see whether Dimmett had a valid prescription on file for any of the pills 

recovered during the search and found that he did not. 

[4] The State charged Dimmett with level 2 felony dealing in narcotics, level 2 

felony dealing in a controlled substance, level 4 felony dealing in a controlled 

substance, level 5 felony dealing in a controlled substance (later dismissed on 

the State’s motion), two counts of level 6 felony narcotics possession, and class 

A misdemeanor marijuana possession. The State subsequently filed one count 

of level 3 felony narcotics possession and a habitual offender count. A

bifurcated trial was scheduled. At a pretrial hearing, the trial court granted the 

State’s motion to introduce evidence under Indiana Evidence Rule 404(b) to the 

effect that Dimmett had shared opiates with his friend and fellow addict

Michael Tempco within a timeframe that would not be considered stale. 

Tempco testified at trial over Dimmett’s objection.
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[5] The jury found Dimmett guilty of the two level 2 felony dealing counts, level 3 

felony narcotics possession (ultimately vacated by the trial court), two counts of 

level 6 felony narcotics possession, class A misdemeanor possession of a 

controlled substance (as a lesser included offense of the level 4 felony dealing 

count), and class B misdemeanor marijuana possession. Before the habitual 

offender phase, the following exchange occurred:

THE COURT: .... There’s an Habitual Offender Enhancement 

alleging some prior convictions. Is that proceeding necessary?

[DEFENSE COUNSEL]: It is not, Your Honor.

THE COURT: Okay. Mr. Dimmett you have a right to another 

trial essentially. You can present evidence, call witnesses to 

testify, cross examine anybody who testifies against you like we 

did during the trial on the issue of whether you have those prior 

convictions. Your Counsel has represented to me that you were 

going to admit that you have those, is that correct?

THE DEFENDANT: Yes sir.

THE COURT: Is that a free and voluntary act on your part?

THE DEFENDANT: Yes sir.

THE COURT: No one’s forced you to do that and you ... 

THE DEFENDANT: (Interrupting) No sir.

THE COURT: Okay. All right.

Tr. Vol. 3 at 69-70. 
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[6] During sentencing, the trial court identified as aggravating circumstances 

Dimmett’s criminal history and his prior dealing convictions. The court 

specifically found no mitigating circumstances. The court sentenced Dimmett

to twenty years for his level 2 felony narcotics dealing conviction, with a fixed 

additional eighteen-year term for the habitual offender finding, a concurrent

twenty-year term for level two felony dealing in a controlled substance, three 

concurrent one-year terms for the level 6 felonies and class A misdemeanor,

and a concurrent 180-day term for the class B misdemeanor, for an aggregate 

sentence of thirty-eight years executed. Dimmett now appeals. Additional facts 

will be provided as necessary.

Discussion and Decision

Section 1 – The trial court did not commit reversible error in 

admitting evidence that Dimmett shared drugs with a fellow 

addict.

[7] Dimmett challenges the trial court’s admission of Tempco’s testimony that 

Dimmett had shared opiates with him. We review evidentiary rulings for an 

abuse of discretion resulting in prejudicial error. Williams v. State, 43 N.E.3d 

578, 581 (Ind. 2015). An abuse of discretion occurs when the trial court’s ruling 

is either clearly against the logic and effect of the facts and circumstances before 

it or the court misinterprets the law. Id. In determining whether improperly 

admitted evidence has prejudiced the defendant, we assess the probable impact 

of that evidence on the jury in light of all the other properly admitted evidence. 
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Id. If independent, properly admitted evidence of guilt supports the conviction, 

the error is harmless. Id.

[8] Dimmett maintains that the challenged testimony is inadmissible evidence of 

prior bad acts under Indiana Evidence Rule 404(b).

1 The State filed a notice of 

intent to introduce evidence that Dimmett had recently shared opiates with his 

friend Tempco. At the hearing on its Rule 404(b) motion, the State emphasized 

that Dimmett’s dealing offenses were charged as possession with intent to 

deliver and claimed that it understood that Dimmett intended to introduce this 

same evidence to show two users merely sharing drugs and that sharing drugs is 

not the same as dealing them. The trial court granted the State’s motion. 

[9] When the admissibility of Tempco’s testimony re-emerged during trial, the 

State claimed that the defense had opened the door to the evidence during its 

opening statement to the jury by claiming that Dimmett was a user only. The 

court found that the door had been opened on the issue of what Dimmett

intended to do with the drugs he possessed and that Tempco’s testimony was 

 

1

 Indiana Evidence Rule 404(b) lists prohibited and permitted uses of evidence of other crimes, wrongs, or 

other acts. In assessing the admissibility of Rule 404(b) evidence, the trial court must (1) determine that the 

evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant’s propensity 

to commit the charged act; and (2) balance the probative value of the evidence against its prejudicial effect 

pursuant to Indiana Evidence Rule 403. Luke v. State, 51 N.E.3d 401, 416 (Ind. Ct. App. 2016), trans. denied. 

Rule 403 states, “The court may exclude relevant evidence if its probative value is substantially outweighed 

by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, 

undue delay, or needlessly presenting cumulative evidence.”
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probative evidence of Dimmett’s “intent to deliver the same class of drugs he 

had with him.” Tr. Vol. 2 at 201.2 

[10] During direct examination, the State asked, “Did David Dimmett ever share 

any pills with you?”, and Tempco responded, “Yes.” Id. at 220. Dimmett

objected but did not move to strike Tempco’s affirmative response. An 

objection to a witness’s response after its admission, unaccompanied by a 

motion to strike, results in waiver and will not be considered on appeal. 

Lankford v. State, 144 Ind. 428, 43 N.E. 444, 446 (1896). See also Bowens v. State, 

481 N.E.2d 1289, 1292 (Ind. 1985) (because defendant made no motion to 

strike and admonish, he is foreclosed from challenging the admission of the 

challenged testimony on appeal). Dimmett’s failure to object until after 

Tempco had responded was not sufficient to preserve the issue absent an 

accompanying motion to strike the affirmative response. The remainder of 

Tempco’s testimony addressed his own addiction as well as the details of his 

friendship and drug-sharing with Dimmett and thus was merely cumulative of 

his statement that Dimmett had shared pills with him. 

[11] Even if error had occurred, the record includes a wealth of independent, 

properly admitted evidence that Dimmett possessed the drugs with intent to 

 

2

 Indiana Code Section 35-48-1-11(a) defines “delivery” to include “an actual or constructive transfer from 

one (1) person to another of a controlled substance, whether or not there is an agency relationship.” Sharing 

drugs has been held sufficient to support a reasonable inference of intent to deliver. See, e.g., Graham v. State, 

971 N.E.2d 713, 719 (Ind. Ct. App. 2012) (evidence that defendant shared drugs with passengers in his car 

held sufficient evidence of intent to deliver), trans. denied (2013). Remunerated or not, Dimmett supplied 

Tempco with the same class of illegal substances that formed the basis of his charges. 
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deliver. Detectives Hassler and King testified as to the sheer quantity of drugs 

recovered from Dimmett’s pockets and noted that they had never encountered a 

suspect in possession of such a large quantity of pills. Based on this evidence, 

Detective King concluded that Dimmett was a dealer or a user-dealer. 

Dimmett’s text messages also support a reasonable inference of dealing, as they 

include outgoing messages indicating that he had illegal drugs available. 

Detective King explained the significance of Dimmett’s use of drug-name 

abbreviations in his text messages as well as his decision to change his phone 

number, as both types of behavior are common among drug dealers. The

recorded jailhouse phone conversation between Dimmett and his father was

also independent evidence of Dimmett’s dealing. Therefore, had there been any 

error in admitting Tempco’s testimony it would have been harmless. 

Section 2 – Dimmett is foreclosed from challenging the 

validity of his habitual offender guilty plea via direct appeal.

[12] Dimmett also challenges the validity of his guilty plea to the habitual offender 

charge. Indiana has had “a long-standing prohibition against challenging a 

guilty plea by direct appeal.” Tumulty v. State, 666 N.E.2d 394, 395 (Ind. 1996). 

This includes guilty pleas to habitual offender counts. See id. (defendant’s

foreclosed direct appeal concerned the factual basis for his habitual offender 

guilty plea). A guilty plea is “a legal act [that] brings to a close the dispute 

between the parties[.]” Id. at 396. “One consequence of a defendant’s choice to

plead guilty and allow judgment to be entered against him is that he is 

foreclosed from challenging his conviction on direct appeal.” J.W. v. State, 113 
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N.E.3d 1202, 1205 (Ind. 2019) (citing Tumulty, 666 N.E.2d at 396). This does 

not leave the defendant without an avenue for challenging the validity of his 

guilty plea; rather, he simply is limited to raising such a challenge via postconviction proceedings pursuant to Indiana Post-Conviction Rule 1. Tumulty, 

666 N.E.2d at 396.

[13] Dimmett relies on Brightman v. State as support for his argument that he is 

entitled to challenge the validity of his habitual offender guilty plea on direct 

appeal. 758 N.E.2d 41, 44 (Ind. 2001). There, the defendant sought to 

withdraw his guilty plea before judgment was entered, and his direct appeal was 

a challenge to the denial of his motion to withdraw. Id. at 43-44. Here, 

Dimmett did not attempt to withdraw his habitual offender guilty plea before 

the trial court entered judgment. In fact, the court was prepared to begin the 

habitual offender phase of the trial when defense counsel indicated that 

Dimmett had decided to admit to the habitual offender charge and forgo a trial 

on that count. The trial court accepted Dimmett’s admission and entered 

judgment accordingly. Thus, Brightman is distinguishable. 

[14] Dimmett essentially claims that his general admission to the habitual offender 

count without a recitation of (and admission to) each of his prior unrelated 

felony convictions as listed in the habitual offender information is insufficient to 

establish a valid guilty plea. That may or may not be so, but per Tumulty, we 

are precluded from addressing the merits of his argument in this direct appeal, 
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and Dimmett is limited to raising such a challenge through post-conviction 

proceedings.3 

Section 3 – Dimmett has failed to meet his burden of 

demonstrating that his sentence is inappropriate.

[15] Dimmett asks that we review and revise 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.” “Sentencing is principally a discretionary function 

in which the trial court’s judgment should receive considerable deference.” 

Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). When a defendant 

requests appellate review and revision of his 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, our principal role is to leaven the outliers, focusing 

on the length of the aggregate sentence and how it is to be served. Bess v. State, 

 

3

 The chronological case summary (“CCS”) indicates that the habitual offender count was filed on the same 

morning as Dimmett’s initial hearing. Appellant’s App. Vol. 2 at 9. We do not have a transcript of that 

hearing, but the trial court was required by statute to inform Dimmett of the “nature of the charge[s] against” 

him. Ind. Code § 35-33-7-5(6). Those charges include the contents of the habitual offender information, 

which lists Dimmett’s prior unelated felony convictions as class C felony dealing in a controlled substance 

(2002), class D felony dealing in marijuana (2007), and class B felony maintaining a common nuisance 

(2015). The CCS also indicates for the habitual offender count, “Plea Guilty.” Appellant’s App. Vol. 2 at 

26. In cases such as these, where there appears to be little to no need for further development of the record, it 

would seem more efficient to allow a resolution on direct appeal concerning the merits of a guilty plea 

challenge, which would obviate the need for post-conviction proceedings. However, Tumulty does not allow 

for such an exception. “We are bound by our Supreme Court’s decisions, and its precedent is binding until it 

is changed by the Supreme Court or legislative enactment.” State v. Hardy, 7 N.E.3d 396, 402 n.3 (Ind. Ct. 

App 2014).
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58 N.E.3d 174, 175 (Ind. 2016); Foutch v. State, 53 N.E.3d 577, 580 (Ind. Ct. 

App. 2016). This allows for consideration of all aspects of the penal 

consequences imposed by the trial court in sentencing, i.e., whether it consists 

of executed time, probation, suspension, home detention, or placement in 

community corrections, and whether the sentences run concurrently or 

consecutively. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). 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.’” Foutch, 53 N.E.3d at 581 (quoting Barker v. State, 994 N.E.2d 

306, 315 (Ind. Ct. App. 2013), trans. denied (2014)). The defendant bears the 

burden of persuading this Court that his sentence meets the inappropriateness 

standard. Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016). 

[16] In considering the nature of Dimmett’s offenses, “the advisory sentence is the 

starting point the Legislature has selected as an appropriate sentence.” Green v. 

State, 65 N.E.3d 620, 637-38 (Ind. Ct. App. 2016), trans. denied (2017). When 

determining the appropriateness of a sentence that deviates from an advisory 

sentence, we consider whether there is anything more or less egregious about 

the offense as committed by the defendant that “makes it different from the 

typical offense accounted for by the legislature when it set the advisory 

sentence.” Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011). 

[17] The trial court sentenced Dimmett to an aggregate thirty-eight-year executed 

term. The sentence comprises: two level 2 felonies, each of which, pursuant to 

Indiana Code Section 35-50-2-4.5, carries a sentencing range of ten to thirty 
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years, with a seventeen and one-half-year advisory term; two level 6 felonies, 

each of which, pursuant to Indiana Code Section 35-50-2-7(b), carries a 

sentencing range of six months to two and one-half years, with a one-year 

advisory term; class A and class B misdemeanor counts, for which the term 

may not exceed one year or 180 days, respectively, pursuant to Indiana Code 

Sections 35-50-3-2 and -3; and a habitual offender enhancement, pursuant to

Indiana Code Section 35-50-2-8(i)(1), which provides for an additional 

nonsuspendible term of six to twenty years. 

[18] The nature of Dimmett’s offenses is not particularly out of the ordinary for drug 

dealing and possession offenses. That said, the common theme amongst the 

drug task force officers was that they were taken aback by the sheer quantity of 

pills recovered from Dimmett’s pockets. Also significant is the fact that the 

officers were initially led to Dimmett while investigating the heroin overdose 

death of a young man to whom Dimmett had sold heroin just two days before, 

a fact not introduced during his jury trial but proper for consideration during his 

sentencing. Considering the number of felony convictions, two of which were 

level 2 felonies, and the fact that Dimmett’s habitual offender finding accounts

for nearly half his aggregate term, we do not believe that the nature of his 

offenses militates toward a reduced sentence.

[19] Similarly, Dimmett’s character does not militate toward a shorter sentence. We 

conduct our review of his character by engaging in a broad consideration of his 

qualities. Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on other 

grounds on reh’g, 11 N.E.3d 571. “When considering the character of the 
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offender, one relevant fact is the defendant’s criminal history.” Garcia v. State, 

47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied (2016). 

[20] Dimmett attributes his extensive criminal history to his addiction to opiates,

which he developed after a 2004 auto accident. He presented character 

witnesses to attest to his being “compassionate,” “contrite,” “loving [and] 

nurturing,” and “one of the best fathers you could ask to have.” Tr. Vol. 3 at 

76, 85. However, the thirty-eight-year-old Dimmett has illegally used and/or 

sold drugs since 1999, and the 2014 birth of his son did little to curtail his drug

use and dealing. At the time of his current offenses, his son and ex-girlfriend 

were living in a house without electricity. His criminal record includes two 

class B felony convictions for dealing in controlled substances, two felony 

convictions for dealing in marijuana, as well as convictions for drug possession, 

maintaining a common nuisance, operating while intoxicated, and resisting law 

enforcement. We also note that at the time of sentencing, he had a pending 

murder charge stemming from his sale of heroin to an addict who overdosed on 

it. The sale occurred just a couple days before his arrest on the current charges. 

Aware of, yet undeterred by, the tragic results of his recent drug sale, Dimmett 

pitched “P”s and “A”s via text messages. His rebound rate suggests 

indifference to the consequences of his actions. Moreover, his previous

probation revocations suggest an inability or unwillingness to respond positively 

to lenient sentencing options. 

[21] Dimmett’s expressions of remorse include a thank you to the trial court for 

“saving my life,” expressions of disgust with drugs and their negative effect on 
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him and others, and assurances of future change. Tr. Vol. 3 at 93. The trial 

court found the sincerity of his claims “virtually impossible” to determine and 

simply said, “I hope you’re sincere.” Id. at 94. We too are at a loss to discern 

Dimmett’s sincerity and therefore defer to the trial court, as uniquely situated to 

observe and best determine whether his remorse is genuine. Phelps v. State, 969 

N.E.2d 1009, 1020 (Ind. Ct. App. 2012), trans. denied. He has failed to meet his 

burden of demonstrating that his sentence is inappropriate. Accordingly, we 

affirm.

[22] Affirmed. 

Bradford, J., and Tavitas, J., concur.