Court of Appeals of Indiana | Memorandum De cision 18A

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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 Frederick A. Turner Bloomington, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Dutch A. Choate , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. August 29, 2018 Court of Appeals Ca se No. 18A

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- 814 Appeal from the Morgan Superior Court The Honorable Brian H. Williams, Judge Trial Court Cause No. 55D02

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Najam , Judge
.Court of Appeals of Indiana | Memorandum De cision 18A

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### Statement of the Case

[1] Dutch A. Choate appeals his conviction, following a jury trial, for possession of methamphetamine, as a Level 4 felony, and his sentence. Choate raises the following two issues for our review:

1. Whether the State presented sufficient evidence to support his conviction.

2. Whether the trial court erred when it sentenced him to an aggravated sentence for a felony conviction without enterin g a sentencing statement

.

[2] We affirm in part, reverse in part, and remand for resentencing

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### Facts and Procedural History

[3] On December 24, 2016, at 5:00 a.m., Morgan County Sheriff’s Department Officer Timothy Coryell went to a residence in Mooresville to ser ve an arrest warrant on Lee Harley Davidson Bates. Amber Harless, who lived at the residence, answered the door and gave Officer Coryell permission to enter and locate Bates. However, instead of entering personally, Officer Coryell informed other officer s that Harless had indicated Bates was inside the residence, and other officers entered with a canine unit.

[4] Officers apprehended Bates in the basement of the residence. There, Mooresville Police Department Officer Mark Harris, who was assisting Officer Co ryell, heard “unknown people moving around” upstairs, which told Officer Harris that “the scene [wa]s not secure” and “could still pose a danger to theCourt of Appeals of Indiana | Memorandum De cision 18A

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law enforcement officers inside

. . . .” Tr. Vol. 3 at 33. Accordingly, Officer Harris went upstairs t o secure the residence.

[5] Officer Harris e ntered Harless’ bedroom and looked under her bed, where he observed Choate “laying on his stomach” with “his hands in front of him.” Id. at 35. Officer Harris observed that Choate “had his hands on top of two bag gies with a large amount of substance” in them, which Officer Harris “later determined to be methamphetamine [] .” Id. at 37. After extracting Choate from underneath the bed, officers further observed under the bed a tray, a glass smoking pipe with some re sidue on it, and paraphernalia. Officers arrested Choate.

[6] The State charged Choate with multiple offenses. After a jury trial, the jury found him guilty of possession of methamphetamine, as a Level 4 felony. The trial court entered its judgment of convi ction and then sentenced Choate to an enhanced term of ten years executed in the Department of Correction. However, neither in its oral pronouncement of Choate’s sentence nor in its written sentencing order did the court identify any aggravating factors o r otherwise explain its basis for Choate’s sentence. This appeal ensued.



### Discussion and Decision Issue One: Sufficiency of the Evidence

[7] Choate first argues on appeal that the State failed to prove his possession of the methamphetamine. F or sufficiency challenges, we neither reweigh evidence nor judge witness credibility. Gibson v. State , 51 N.E.3d 204, 210 (Ind. 2016).Court of Appeals of Indiana | Memorandum De cision 18A

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We consider only the evidence most favorable to the judgment together with all reasonable inferences that may be drawn from the evidence. Id. We will affirm the judgment if it is supported by substantial evidence, even if the evidence is conflicting. Id.

[8] Possession can be either actual or constructive. “A person actually possesses contraband when she has direct physi c a l control over it.” Gray v. State , 957 N.E.2d 171, 174 (Ind. 2011). However, “[w] hen the State cannot show actual possession, it may nonetheless prevail on proof of constructive possession. ” Id. “A person constructively possesses contraband when the pe rson has (1) the capability to maintain dominion and control over the item; and (2) the intent to maintain dominion and control over it.” Id.

[9] Choate argues on appeal that the State failed to show that he constructively possessed the two baggies of methamp hetamine . But the State’s evidence shows that, when Officer Harris discovered Choate under Harless’ bed, Choate had “his hands on top of two baggies” filled with methamphetamine. Tr. Vol. 3 at 37. This is not a constructive possession case. When caught, Choate was in actual possession of the methamphetamine.

[10] Still, Choate argues on appeal that he just “jumped under the bed to hide” and in doing so just happened to be near contraband that was already there

. Appellant’s Br. at 10. Choate’s argument is neither here nor there on appeal. The question before us is whether the State presented sufficient evidence to support the jury’s verdict. The State did so by showing that Choate had directCourt of Appeals of Indiana | Memorandum De cision 18A

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physical control over the methamphetamine wh en Officer Harris found him. We affirm his conviction.



### Issue Two: Sentence

[11] Choate next contends on appeal that the trial court erred when it sentenced him

to an enhanced term for a Level 4 felony without an explanation for tha t sentence. The State concedes that the trial court erred in this respect when it sentenced Choate, and we agree. See Anglemyer v. State , 868 N.E.2d 482, 490 (Ind. 2007) (“One way in which a trial court may abuse its discretion [in sentencing] is failing to enter a sentencing statement at all.”).

[12] However, the parties dispute the proper remedy for this error. Choate argues that he is entitled to the advisory sentence, as Indiana Code Section 35

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- 1.3 (2018) requires a sentencing statement be made in th e pronouncement of a sentence for a felony conviction “unless the court imposes the advisory sentence for the felony.” Thus, Choate reasons, because the trial court did not enter the required sentencing statement, it was required to sentence him to the ad visory sentence. The State asserts, instead, that we should affirm Choate’s sentence as harmless under Indiana Appellate Rule 7(B).

[13] We have long recognized that, where a trial court has abused its discretion in sentencing a defendant, “the error is harmle ss if the sentence imposed was not inappropriate” under Rule 7(B). Mendoza v. State , 8 69 N.E.2d 546, 556 (Ind. Ct. App. 2007) (citing Windhorst v. State , 868 N.E.2d 504, 507 (Ind. 2007). However, central to our review under Rule 7(B) is our assessment of “the trialCourt of Appeals of Indiana | Memorandum De cision 18A

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court’s recognition or nonrecognition of aggravators and mitigators as an initial guide to determining whether the sentence imposed was inappropriate.” Robinson v. State , 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016). We cannot do that where, as here, the trial court has not entered a sentencing statement at all for us to review. And neither can we say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record. An glemyer , 868 N.E.3d at 491

. Accordingly, we reverse Choate’s sentence and remand for resentencing. See Windhorst , 868 N.E.2d at 507.

[14] Affirmed in part, reversed in part, and remanded for resentencing.

Cron e, J., and Pyle, J., concur

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