Court of Appeals of Indiana | Memorandum Decision 18A-CR-814 | August 29, 2018 Page 1 of 6

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

Frederick A. Turner

Bloomington, Indiana

ATTORNEYS FOR APPELLEE

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 Case No.

18A-CR-814

Appeal from the Morgan Superior 

Court

The Honorable Brian H. Williams, 

Judge

Trial Court Cause No.

55D02-1701-F2-34

Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-814 | August 29, 2018 Page 2 of 6

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 

entering a sentencing statement.

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

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 serve 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 officers 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 

Coryell, heard “unknown people moving around” upstairs, which told Officer 

Harris that “the scene [wa]s not secure” and “could still pose a danger to the 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-814 | August 29, 2018 Page 3 of 6

law enforcement officers inside . . . .” Tr. Vol. 3 at 33. Accordingly, Officer 

Harris went upstairs to secure the residence. 

[5] Officer Harris entered 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 

baggies 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 residue 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 conviction 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 or 

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. For sufficiency challenges, we neither reweigh evidence 

nor judge witness credibility. Gibson v. State, 51 N.E.3d 204, 210 (Ind. 2016). 
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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 physical 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 person 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 methamphetamine. 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 direct 
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physical control over the methamphetamine when 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 that 

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 35-38-1-1.3 

(2018) requires a sentencing statement be made in the 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 advisory 

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 harmless if the sentence imposed was not 

inappropriate” under Rule 7(B). Mendoza v. State, 869 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 trial 
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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. Anglemyer, 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.

Crone, J., and Pyle, J., concur.