Court of Appeals of Indiana | Memorandum Decision 18A-CR-2122 | June 12, 2019 Page 1 of 13

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

Ryan M. Gardner

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Colton T. Vibbert,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

June 12, 2019

Court of Appeals Case No.

18A-CR-2122

Appeal from the Allen Superior

Court

The Honorable Frances C. Gull, 

Judge

Trial Court Cause No.

02D05-1712-F2-41

Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2122 | June 12, 2019 Page 2 of 13

Case Summary

[1] Colton T. Vibbert appeals his conviction and sentence for dealing in 

methamphetamine, a Level 2 felony, and his adjudication for being a habitual 

offender. We affirm.

Issues

[2] Vibbert raises two issues on appeal, which we restate as follows:

I. Whether the trial court improperly admitted evidence that 

was obtained after Vibbert’s girlfriend consented to a 

search of her home, where Vibbert occasionally stayed.

II. Whether the trial court abused its sentencing discretion by 

failing to find that Vibbert’s mental health history was a 

significant mitigating factor.

Facts

[3] This case involves consent to a police search and the admissibility of evidence 

that law enforcement recovered in executing the search. Vibbert’s girlfriend, 

Veronica Grear, owned a trailer located in Fort Wayne. On November 9, 2017, 

Fort Wayne Police Department detectives interviewed Grear and Vibbert 

regarding an ongoing homicide investigation. During the interview, Grear 

indicated that Vibbert occasionally stayed at her trailer and gave her written 

consent to a police search of the trailer to Detective Craig Gregory. See App. 

Vol. II p. 121. Detective Jeff Marsee interviewed Vibbert, who admitted that he 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2122 | June 12, 2019 Page 3 of 13

had stayed with Grear and left his vehicle at Grear’s trailer the night before the 

interview. 

[4] Later that afternoon, Detective Alan Garriott searched the trailer, pursuant to 

Grear’s consent to search.

1

 In the kitchen, Detective Garriott observed a “clear 

food storage container” on a metal folding chair “in the approximate center of 

the kitchen floor.” Tr. Vol. II p. 106. 

[5] Inside the clear container, officers found baggies containing a powdery 

substance, scales, and a box of unused food storage bags. The baggies 

contained methamphetamine and inositol, a cutting agent.

[6] On December 11, 2017, Detective Juan Carlos Gutierrez of the Vice and 

Narcotics Bureau arrested Vibbert for dealing in methamphetamine. Detective 

Gutierrez read Vibbert his Miranda rights and conducted a recorded interview. 

Vibbert initially stated that the methamphetamine recovered from the trailer 

belonged to Grear; however, Vibbert “finally admitted that the 

[methamphetamine] belonged to him.” Id. at 135.

[7] On December 14, 2017, the State charged Vibbert with dealing in 

methamphetamine, a Level 2 felony; and maintaining a common nuisance, a 

 

1 Detective Garriott was unaware of any limitation(s) in the scope of his search of Grear’s home. See Supp. 

Tr. p. 17.
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Level 6 felony. The State subsequently dismissed the latter charge. In a 

separate information, the State alleged that Vibbert was a habitual offender.

[8] On May 17, 2018, Vibbert filed a motion to suppress evidence, in which he 

alleged that Grear did not freely and voluntarily give consent to the police 

search; and that Grear consented to a limited scope search seeking “guns, 

ammo, holsters, [ ] any bloody clothing[,]” and “evidence from the homicide.” 

Supp. Tr. pp. 6, 28. The trial court conducted a hearing on Vibbert’s motion to 

suppress on May 31, 2018 and denied the motion on June 19, 2019. See App. 

Vol. III p. 39.

[9] Vibbert was tried by jury on June 21, 2018. The jury convicted Vibbert of 

dealing in methamphetamine, a Level 2 felony. The parties subsequently 

stipulated that Vibbert was a habitual offender. At Vibbert’s sentencing hearing 

on July 13, 2018, defense counsel asked the trial court to consider, as 

mitigating, that Vibbert “was diagnosed with bipolar, ADHD, and depression 

at a very young age, but he has not received any treatment[.]” Tr. Vol. II p. 

178. Acknowledging Vibbert’s significant criminal history, defense counsel 

argued as follows that Vibbert had found himself in a “vicious cycle” of 

“serving executed time, [but] not getting any mental health treatment[,]”:

I would submit to the Court that the untreated mental health 

problems would create the situation, so to speak, where the prior 

attempts at rehabilitation have failed. When people have

untreated mental health issues, they struggle, especially when 

you’re talking about bipolar and ADHD, where that person, 

because of the untreated mental health issues, struggles to stay in 
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compliance with the expectations of the authority figures, of 

Probation, of Parole, of alternative sentencing programs and, 

therefore, they don’t succeed in those programs. I – and I don’t 

know that [it is fair] to call that prior attempt at rehabilitation 

having been failed when that mental health issue wasn’t being 

treated.

Id.

[10] The trial court declined to find Vibbert’s mental health issues to be mitigating 

stating:

The higher courts have been pretty clear [ ] that there has to be a 

connection between the charged offense and the alleged 

mitigating circumstance and I see no connection between the 

mental health issues that you claim to suffer from and the charge 

of dealing in methamphetamine, so I decline to find that as a 

mitigating circumstance.

Id. at 188. Finding Vibbert’s criminal history to be “significant[ly] 

aggravating,” the trial court sentenced Vibbert to thirty years in the Department 

of Correction (“DOC”) for dealing in methamphetamine and enhanced that 

sentence by twenty years for the habitual offender adjudication, for an 

aggregate sentence of fifty years. Id. The trial court further ordered that 

Vibbert’s sentence should be served consecutively to his sentences in other 

causes. Vibbert now appeals.
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Analysis

I. Admission of Evidence

[11] Vibbert argues that the trial court improperly admitted evidence that was 

obtained in violation of his rights under the Fourth Amendment to the United 

States Constitution.2

 “The general admission of evidence at trial is a matter we 

leave to the discretion of the trial court.” Clark v. State, 994 N.E.2d 252, 259-60 

(Ind. 2013). “We review these determinations for abuse of that discretion and 

reverse only when admission is clearly against the logic and effect of the facts 

and circumstances and the error affects a party’s substantial rights.” Id. at 260.

[12] The Fourth Amendment to the United States Constitution protects citizens 

against unreasonable searches and seizures by prohibiting them without a 

warrant supported by probable cause. U.S. Const. amend. IV. “The 

fundamental purpose of the Fourth Amendment to the United States 

Constitution is to protect the legitimate expectations of privacy that citizens 

possess in their persons, their homes, and their belongings.” Taylor v. State, 842 

N.E.2d 327, 330 (Ind. 2006). This protection has been “extended to the states 

through the Fourteenth Amendment.” Bradley v. State, 54 N.E.3d 996, 999 

(Ind. 2016). “As a deterrent mechanism, evidence obtained in violation of this 

rule is generally not admissible in a prosecution against the victim of the

 

2 Vibbert does not argue that the search violated Article 1, Section 11 of the Indiana Constitution; we, 

therefore, deem that issue waived.
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unlawful search or seizure absent evidence of a recognized exception.” Clark, 

994 N.E.2d at 260. 

[13] One exception to the warrant requirement occurs when consent 

is given to the search. A valid consent to search may be given by 

the person whose property is to be searched or a third party who 

has common authority or an adequate relationship to the 

premises to be searched. When showing that a third party has 

authority to consent, the State must demonstrate mutual use of 

the property by persons generally having joint access or control 

for most purposes, so that it is reasonable to recognize that “any 

of the co-inhabitants has the right to permit the inspection in his 

own right and that the others have assumed the risk that one of 

their number might permit the common area to be searched.” 

While a defendant typically is without standing to challenge the 

voluntariness of a third party’s consent, an individual may do so 

when that consent involves an area in which the defendant held a 

reasonable expectation of privacy. Also, a third party may 

consent to the search of the premises or property of another if 

actual authority exists. Establishing actual authority requires a 

showing that there is a sufficient relationship to or mutual use of 

the property by persons generally having joint access or control 

for most purposes. However, if actual authority cannot be 

shown, then facts demonstrating that the consenting party had 

apparent authority to consent could prove a lawful search. Krise 

v. State, 746 N.E.2d [957,] 967 [(Ind. 2001)]. Under the apparent 

authority doctrine, a search is lawful if the facts available to the 

officer at the time would warrant a man of reasonable caution to 

believe that the consenting party had authority over the property. 

However, our Supreme Court has observed that persons sharing 

premises may nonetheless retain areas or objects within their 

exclusive control that are not subject to search based on consent of 

one of the co-occupants. A co-occupant may deny joint access 

over an object by keeping it in a place devoted to the owner’s 
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exclusive use or where the object is one over which only one 

person normally exercises control and authority or which 

“normally hold[s] highly personal items.” 

Peel v. State, 868 N.E.2d 569, 575-76 (Ind. Ct. App. 2007) (citations and 

footnote omitted).

[14] Vibbert argues that Grear lacked authority to consent to a search of the 

container. He relies heavily upon our Supreme Court’s analysis in Krise and 

Halsema v. State, 823 N.E.2d 668 (Ind. 2005). Our Supreme Court summarized 

Krise as follows in Halsema:

In Krise v. State, 746 N.E.2d 957 (Ind. 2001)[,] the defendant 

shared a house with a roommate. The roommate consented to a 

general search of the house, which ultimately led to the discovery 

and search of the defendant’s purse. That search, in turn, 

revealed marijuana and a white powdery substance later 

identified as methamphetamine. After a careful and exhaustive 

review of what we characterized as the “twists and turns of 

Fourth Amendment law” with respect to warrantless searches,

this Court ultimately reversed the defendant’s conviction of 

possession of a controlled substance within 1000 feet of a public 

park on the ground that the defendant’s roommate lacked 

authority to consent to a warrantless search of the defendant’s 

purse. We held “the inspection of closed containers that 

normally hold highly personal items requires the consent of the 

owner or a third party who has authority—actual or apparent—

to give consent to the search of the container itself.” 

Acknowledging that we had previously addressed cases involving 

third-party consent searches of a shared home and its contents, 

we noted, “none of these cases dealt with a third-party’s 

authority to consent to search something like a purse, i.e., a 
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closed container that normally holds highly personal items, 

located within the home.” 

Halsema, 823 N.E.2d at 676 (citing Krise, 746 N.E.2d at 961, 968-69) (internal 

citations omitted).

[15] In Halsema, the defendant was pulled over in a vehicle and arrested for 

possession of marijuana. A vehicle search yielded individually-wrapped 

baggies of methamphetamine, controlled substances, scales, and drug 

paraphernalia. When police officers went to the address that the defendant 

provided, a resident told officers that the defendant had been staying in a 

bedroom in her house and had exclusive use of certain drawers in the bedroom 

dresser, which the resident had specifically emptied for the defendant’s use. 

The resident then consented to a police search of the house, which yielded

methamphetamine in the defendant’s dresser drawer. After the defendant was 

convicted of various offenses, he argued on appeal that the resident lacked

authority to consent to a search of his dresser drawer. We reversed the 

conviction on other grounds, and our Supreme Court granted transfer.

[16] Citing Krise, the Supreme Court concluded that “[t]he dresser drawer . . . [wa]s 

analogous to the purse in Krise—a closed container normally holding highly 

personal items.” Halsema, 823 N.E.2d at 676. Ultimately, the Halsema Court 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2122 | June 12, 2019 Page 10 of 13

concluded that the resident lacked actual or apparent authority[3

] to consent to 

a search of the dresser drawer, reasoning:

[the defendant] enjoyed the exclusive use of at least one of the 

dresser drawers in [the resident]’s bedroom and because [the 

resident] specifically advised the officers of that fact, [the 

resident] did not have actual authority to consent to a search of 

the drawer where the methamphetamine was found, nor could an 

officer reasonably believe that she had such authority. 

Id. Thus, the Court vacated the defendant’s conviction and concluded that

“the warrantless search of the [dresser] drawer without [the defendant]’s 

consent violated his Fourth Amendment right against unreasonable search and 

seizure”; and that the trial court “erred by admitting the seized drugs into 

evidence.” Id.

[17] The instant case differs from Krise and Halsema. The container: (1) was not 

stored in a place that was devoted to Vibbert’s exclusive use; (2) is not the sort 

of container that is used to store highly personal items; (3) is not the sort of 

object “over which only one person normally exercises control”; (4) is 

 

3 Our Supreme Court has defined “actual authority” and “apparent authority” as follows:

Actual authority “requires a showing that there is a sufficient relationship to or ‘mutual 

use of the property by persons generally having joint access or control for most 

purposes.’” As for apparent authority, “a search is lawful if the facts available to the 

officer at the time would ‘warrant a man of reasonable caution in the belief that the 

consenting party had authority over the premises.’”

Halsema, 823 N.E.2d at 676 (citations omitted). 
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transparent—thus, its contents were openly visible to any viewer; and (5) was 

found in the kitchen, which typically is the most heavily-trafficked common 

area of a home. See Krise, 746 N.E.2d at 961, 968-69. These are not the

qualities of a vessel, similar to a purse or a dresser drawer, which we imbue 

with heightened Fourth Amendment protections in cases involving third

parties’ consent to searches. 

[18] For the foregoing reasons, we find that the trial court did not err in admitting 

the evidence recovered pursuant to Grear’s consent to search her home. Grear 

had actual and apparent authority to consent to a search of her kitchen, 

including impersonal items that were in plain view.

II. Overlooked Mitigating Factor

[19] Next, Vibbert argues that the trial court overlooked a significant mitigating 

factor—namely, his alleged mental health history. Specifically, Vibbert argues 

that it was “error” for the trial court “[t]o not consider [his mental health 

conditions]” as a mitigating factor and that “the trial court’s imposed sentence 

is not warranted.” Appellant’s Br. p. 17. 

[20] Sentencing decisions rest within the sound discretion of the trial court. 

McElfresh v. State, 51 N.E.3d 103, 107 (Ind. 2016). As long as the sentence is 

within the statutory range, it is subject to review only for an abuse of discretion. 

Id. An abuse of discretion will be found where the decision is clearly against 

the logic and effect of the facts and circumstances before the court or the 

reasonable, probable, and actual deductions to be drawn therefrom. Id. 
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[21] A trial court is not obligated to accept a defendant’s claim as to what constitutes 

a mitigating circumstance. Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000). A 

trial court has discretion to determine whether the factors are mitigating, and it 

is not required to explain why it does not find the defendant’s proffered factors 

to be mitigating. Haddock v. State, 800 N.E.2d 242, 245 (Ind. Ct. App. 2003). A 

claim that the trial court failed to find a mitigating circumstance requires the 

defendant to establish that the mitigating evidence is both significant and clearly 

supported by the record. Anglemyer v. State, 868 N.E.2d 482, 493 (Ind. 2007), 

clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). A trial court’s sentencing order 

may not be challenged as reflecting an improper weighing of aggravating or 

mitigating circumstances. Id. at 491. 

[22] “Mental illness is not necessarily a significant mitigating factor; ‘rather, [it] is a 

mitigating factor to be used in certain circumstances, such as when the evidence 

demonstrates longstanding mental health issues or when the jury finds that a 

defendant is mentally ill.’” Townsend v. State, 45 N.E.3d 821, 831 (Ind. Ct. App. 

2015), trans. denied. “[I]n order for a [defendant’s] mental history to provide a 

basis for establishing a mitigating factor, there must be a nexus between the 

defendant’s mental health and the crime in question.” Weedman v. State, 21 

N.E.3d 873, 894 (Ind. Ct. App. 2014), trans. denied; see also Archer v. State, 689 

N.E.2d 678, 685 (Ind. 1997).

[23] Here, the trial court considered Vibbert’s mental health history and explicitly 

deemed it to lack mitigating weight due to the lack of a nexus between Vibbert’s

offenses and his alleged mental health conditions. Vibbert presented no 
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argument or evidence that: (1) supports his diagnoses; (2) reflects he was 

suffering from the conditions when he committed the instant offenses; or (3)

indicates that the mental health conditions affected his ability to control his 

impulses, impaired his faculties, or had some relationship to the crimes at issue. 

[24] In the absence of any evidence of a mental disease or diagnosis, with the 

exceptions of Vibbert’s self-serving4 statements proffered at sentencing, and no 

evidence of a nexus between Vibbert’s crimes and his mental state, we conclude 

that the trial court did not abuse its sentencing discretion in refusing Vibbert’s 

proffered mitigator. See Corralez v. State, 815 N.E.2d 1023, 1026 (Ind. Ct. App. 

2004) (requiring a nexus between defendant’s mental health and the crimes in 

question for mental history to be deemed mitigating).

Conclusion

[25] The trial court did not err in admitting evidence recovered pursuant to a 

consent to search and did not overlook a significant mitigating factor. We 

affirm.

[26] Affirmed.

Crone, J., and Bradford, J., concur.

 

4 Vibbert’s pre-sentence investigation report provides that “[t]he defendant reported he was diagnosed with 

Bipolar Disorder, Depression, and Attention Deficit Hyperactivity Disorder, as a juvenile. He advised he 

was treated with medication; however, he has not been prescribed any medication for his mental health 

issues since age 13.” App. Vol. III p. 91.