Court of Appeals of Indiana | Memorandum Decision 29A02-1412-CR-851 | July 24, 2015 Page 1 of 8

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

Michael A. Casati

Casati Law, LLC

Carmel, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Tyler G. Banks

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Walter L. Robertson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

July 24, 2015

Court of Appeals Case No.

29A02-1412-CR-851

Appeal from the Hamilton Superior 

Court;

The Honorable Wayne A. 

Sturtevant, Judge;

29D05-1312-FD-10182

May, Judge.
Court of Appeals of Indiana | Memorandum Decision 29A02-1412-CR-851 | July 24, 2015 Page 2 of 8

[1] Walter L. Robertson appeals his conviction of Class D felony dealing in 

marijuana.

1 Robertson argues his waiver of a jury trial was invalid, the 

evidence was insufficient to support his conviction, and his 910-day sentence 

was inappropriate. We affirm.

Facts and Procedural History

[2] On December 6, 2013, Officers Silbaugh and Brooks stopped the gold Buick

Robertson was driving after they saw it change lanes twice without a turn 

signal. Officer Silbaugh approached the vehicle on the driver’s side and Officer 

Brooks directed traffic. 

[3] On approaching the vehicle, Officer Silbaugh smelled a strong odor of burnt 

marijuana coming from the open window. He recognized the odor from his 

experience and more than 200 hours of “advanced officer training in the area of 

drug enforcement and drug and criminal interdictions.” (Tr. at 23.) Officer 

Silbaugh asked Robertson if there was any marijuana in the car. Robertson 

acknowledged there was and directed the officer’s attention to a partially 

burned marijuana cigarette in the ashtray. Officer Silbaugh removed both 

Robertson and his passenger from the car, and proceeded to search it. He

found a clear plastic bag under the driver’s seat that contained two other plastic 

bags, each of which contained marijuana. He found $640.00 in cash in 

Robertson’s pocket. The money was folded up into a “bindle” held together by 

 

1 Ind. Code 35-48-4-10 (2013).
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rubber bands. (Id. at 39.) Police transported Robertson to the Fishers Police 

Department for interrogation. 

[4] During the interrogation, Robertson claimed the marijuana was for personal 

use and was packaged separately because they were different strains of 

marijuana. The Indiana State Police Laboratory tested the material in the bag 

and identified it as 30.96 grams of marijuana. Robertson also claimed he had 

so much cash because, prior to the arrest, he had cashed his $174.45 paycheck. 

Robertson also claimed he had received $50.16 in cash at Walmart for returned 

merchandise. 

[5] The State charged Robertson with Class D felony dealing in marijuana and 

Class D felony possession of more than thirty grams of marijuana.2

 Robertson 

did not appear at his pre-trial conference and he was arrested. Robertson filed 

two motions for bond reduction, which the court denied. Through counsel, 

Robertson waived his right to jury trial. The trial court instructed Robertson’s 

counsel to memorialize the waiver in writing and have it signed by both 

Robertson and the State. 

[6] Following a bench trial, the court found Robertson guilty as charged. At 

sentencing, the court merged the two counts into a single conviction of dealing 

in marijuana and sentenced Robertson to 910 days. 

 

2 Ind. Code § 35-48-4-11 (2013).
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Discussion and Decision

Waiver of Jury Trial 

[7] Criminal defendants have a right to a jury trial on their charges. U.S. Const. 

amend. VI; Ind. Const. art. I, § 13 (1851). It is presumed felony defendants will

exercise that right unless they choose to waive it. Pryor v. State, 975 N.E.2d 838, 

842 (Ind. Ct. App. 2011). A defendant’s waiver must be knowingly, 

voluntarily, and intelligently made. Duncan v. State, 975 N.E.2d 838, 842 (Ind. 

Ct. App. 2012). Once a defendant has effectively waived his right to a jury trial, 

he has no constitutional right to withdraw his waiver. Davidson v. State, 249 

Ind. 419, 425 (Ind. 1968). 

[8] Robertson argues he did not knowingly, voluntarily and intelligently waive his 

right to a jury trial. However, at his bond reduction hearing, Robertson, 

through counsel, made a request to waive his right to a jury trial. Robertson’s 

counsel stated he and Robertson had discussed the issue, and Robertson 

affirmed orally that he wished to waive his right to jury trial. The trial court 

instructed Robertson’s counsel to memorialize the waiver in writing and have it 

signed by both Robertson and the State. Robertson and his counsel signed a 

waiver that indicated Robertson waived his right to a jury trial, and they filed 

that waiver with the court. We hold Robertson knowingly, voluntarily, and 

intelligently waived his right to a jury trial. See Johnson v. State, 6 N.E.3d 491, 

497 (Ind. Ct. App. 2014) (finding waiver of jury trial valid when Johnson’s 

attorney signed a waiver indicating that Johnson acted on the advice and 

information of counsel when filing his waiver). 
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Sufficiency of Evidence

[9] When reviewing the sufficiency of the evidence to support a conviction, we 

consider only the probative evidence and reasonable inferences supporting the 

trial court’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the 

fact-finder’s role, and not ours, to assess witness credibility and weigh the 

evidence to determine whether it is sufficient to support a conviction. Id. To 

preserve this structure, when we are confronted with conflicting evidence, we 

consider it most favorably to the trial court’s ruling. Id. We affirm a conviction 

unless no reasonable fact-finder could find the elements of the crime proven 

beyond a reasonable doubt. Id. It is therefore not necessary that the evidence 

overcome every reasonable hypothesis of innocence; rather, the evidence is 

sufficient if an inference reasonably may be drawn from it to support the trial 

court’s decision. Id. at 147.

[10] To convict Robertson of Class D felony dealing in marijuana, the State had to 

prove Robertson “possesse[d], with intent to manufacture, finance the 

manufacture, deliver, or finance the delivery of marijuana.” Ind. Code § 35-48-

4-10 (2013). Robertson argues the State did not prove he had “intent to . . . 

deliver” marijuana. 

[11] Intent to deliver can be inferred from circumstantial evidence such as 

“possession of a large quantity of drugs, large amounts of currency, scales, 

plastic bags, and other paraphernalia.” Ladd v. State, 710 N.E.2d 188, 191 (Ind. 

Ct. App. 1999). An amount of marijuana that exceeds the amount reasonably 
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possessed for personal use can alone be sufficient to uphold a conviction of

dealing. Kail v. State, 528 N.E.2d 799, 809 (Ind. Ct. App. 1988) (citing Montego 

v. State, 517 N.E.2d 74, 76 (Ind. 1987)). 

[12] Robertson possessed nearly thirty-one grams of marijuana, which was packaged 

in two different bags. He had $640.00 in cash folded up into a “bindle” held 

together by rubber bands. (Tr. at 39.) Even if Robertson had cashed a $174.45 

paycheck and returned a $50.16 item at Walmart, that accounts for only 

approximately one-third of the cash he was carrying. Officer Silbaugh, who has 

had more than 200 hours of “advanced officer training in the area of drug 

enforcement and drug and criminal interdictions,” (id. at 23), stated both the 

packaging for the marijuana and the binding of money with a rubber band were 

consistent with drug sales he had seen in his “hundreds of arrests relating to 

marijuana.” (Id. at 46.) There is sufficient evidence of Robertson’s intent to 

deliver to support his conviction of dealing. See Wilson v. State, 754 N.E.2d 

950, 957-58 (Ind. Ct. App. 2001) (possession of large amount of cash and drugs 

packaged for sale permits inference of dealing).

Sentencing 

[13] We may revise a sentence if it is inappropriate in light of the nature of the 

offense and the character of the offender. Williams v. State, 891 N.E.2d 621, 633 

(Ind. Ct. App. 2008) (citing Ind. Appellate Rule 7(B)). We consider not only 

the aggravators and mitigators found by the trial court, but also any other 

factors appearing in the record. Roney v. State, 872 N.E.2d 192, 206 (Ind. Ct. 
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App. 2007), trans. denied. The appellant bears the burden of demonstrating his 

sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). 

[14] When considering the nature of the offense, the advisory sentence is the starting 

point to determine the appropriateness of a sentence. Anglemyer v. State, 868 

N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). The 

sentencing range for Robertson’s offense was six months to three years, with the 

advisory sentence being one and one half years. Ind. Code § 35-50-2-7 (2013). 

The court imposed a sentence of 910 days, or nearly two-and-a-half years.

[15] Robertson possessed 30.96 grams of marijuana, an amount that made 

Robertson’s possession a felony rather than a misdemeanor. See Ind. Code § 

35-48-4-10 (2013). He possessed that marijuana in two baggies in his car, which 

smelled of burnt marijuana, “as [if] someone had recently smoked a marijuana 

cigarette.” (Tr. at 27.) Robertson acknowledged there was marijuana in the car

and directed the officer’s attention to a partially burned marijuana cigarette in 

the ashtray. 

[16] When considering the character of the offender, one relevant fact is the 

defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. 

App. 2007). The significance of a criminal history in assessing a defendant’s 

character varies based on the gravity, nature, and number of prior offenses in 

relation to the current offense. Id. Robertson has a history of juvenile 

adjudications for acts that if committed by an adult would be conversion, 

residential entry and conspiracy to commit theft. He was sent to the Indiana 
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Department of Correction following those adjudications. He was also

convicted of dealing cocaine in 2002, for which he served time and he was on 

probation until 2007. Finally, Robertson was also “arrested for a new drug 

offense involving cocaine and marijuana and also a weapons charge while out 

on bond in this case.” (Tr. at 121.) Robertson’s continued criminal behavior 

despite prior punishment in the criminal justice system does not reflect well on 

his character. 

[17] Based on Robertson’s character, we cannot say his 910-day sentence is 

inappropriate. 

Conclusion

[18] Robertson knowingly, voluntarily and intelligently waived his right to a jury 

trial. There was sufficient evidence to support Robertson’s conviction of 

dealing in marijuana. Based on Robertson’s character, his 910-day sentence 

was not inappropriate. We accordingly affirm. 

[19] Affirmed. 

Robb, J., and Mathias, J., concur.