Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020 Page 1 of 21

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

Donald R. Shuler

Barkes, Kolbus, Rife & Shuler, LLP

Goshen, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Steven J. Hosler

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Devon W. Kyle,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 30, 2020

Court of Appeals Case No.

20A-CR-1217

Appeal from the 

Elkhart Superior Court

The Honorable 

Gretchen S. Lund, Judge

Trial Court Cause No.

20D04-1903-F5-57 

Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020 Page 2 of 21

[1] Devon W. Kyle (“Kyle”) appeals his convictions and sentence for operating a 

motor vehicle after forfeiture of license for life1 as a Level 5 felony, possession

of marijuana2 as a Class B misdemeanor, possession of a synthetic drug or 

synthetic drug lookalike substance3 as a Class A misdemeanor, operating a 

vehicle while intoxicated4 as a Class C misdemeanor, and refusal to identify 

self5 as a Class C misdemeanor. Kyle raises the following issues for our review:

I. Whether the evidence was insufficient to support his 

convictions for operating a motor vehicle after forfeiture of 

license for life and possession of a synthetic drug lookalike 

substance; and

II. Whether his sentence is inappropriate based on the nature 

of the offenses and his character.

[2] We affirm.

Facts and Procedural History

[3] On the night of March 6, 2019, Elkhart Police Department Patrol Sergeant 

Drew Neese (“Officer Neese”) was on patrol in downtown Elkhart. Tr. Vol. 2 at 

38-39. Officer Neese was heading east while stopped at an intersection when he 

1

See Ind. Code § 9-30-10-17(a)(1).

2

See Ind. Code § 35-48-4-11(a)(1).

3

See Ind. Code § 35-48-4-11.5(c).

4

See Ind. Code § 9-30-5-2(a).

5

See Ind. Code § 34-28-5-3.5.
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observed a green Buick coming from the west that had its high beams on. Id.

Officer Neese flicked his lights “two [] or three [] times” to alert the Buick to 

dim its lights; however, the Buick’s lights, rather than dimming, were briefly

turned off completely before being turned back on with its high beams. Id. at 

39-40. As the Buick left the intersection, Officer Neese did not see it swerve or 

cross the center line, but due to the high beam lights, Officer Neese initiated a 

traffic stop, and the Buick immediately pulled over. Id. at 40, 81-82. 

[4] Officer Neese asked the driver and passenger for identification, and around the 

same time, Elkhart Police Department Corporal Jared Davies (“Officer 

Davies”) arrived as back-up. Id. at 41-42, 131-32. The driver did not have 

physical identification but said his name was LaRon Kyle and provided a date 

of birth. Id. at 42. Officer Neese noted that the driver’s eyes were “kind of 

glassy and bloodshot[,]” and he could smell the odor of alcoholic beverages 

coming from the driver’s breath. Id. at 43. Officer Neese noticed that the driver 

was “squinting,” which he thought was “kind of uncharacteristic because of the 

cold weather.” Id. He also observed that the driver’s speech was slurred and 

that he was visibly sweating in the twenty-degree weather. Id. at 44. Officer 

Neese ran the name LaRon Kyle and the date of birth the driver provided 

through a computer search in his patrol car, but the picture for LaRon Kyle did 

not match the driver of the Buick. Id. at 45. Officer Neese returned to the 

Buick and asked the driver for a social security number. Id. at 46. The driver 

provided two different social security numbers. Id. Officer Neese returned to 

his patrol car to run the two social security numbers on the computer, located a 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020 Page 4 of 21

picture of the driver on the computer that matched Kyle, went back to the 

driver’s vehicle, and, after smelling the odor of raw marijuana on Kyle, asked 

him to step out of the vehicle and placed him under arrest. Id. at 46-47. 

[5] Officer Davies performed a search of Kyle incident to his arrest and found a bag 

of what appeared to be marijuana and an additional three bags of a plant-like 

substance that appeared to resemble marijuana. Id. at 144-45; State’s Exs. 3, 4. 

The four bags were weighed and field-tested using the Duquenois-Levine 

reagent test kits; the single bag of what appeared to be marijuana indicated the 

presence of THC and weighed twelve grams while the three bags of plant-like 

substance did not indicate the presence of THC and weighed a total of ten 

grams. Tr. Vol. 2 at 147, 150, 156. In the meantime, Officer Neese searched

Kyle’s driving record in the Indiana Bureau of Motor Vehicles (“BMV”) 

through his computer in his patrol car. Id. at 47. Neese saw that Kyle’s license 

status was listed as “[h]abitual traffic violator for life.” Id. at 71. 

[6] Office Davies took Kyle to the Elkhart Police Department detention center 

where he attempted to administer a portable breath test to Kyle. Id. at 76. Kyle 

was unable to complete the test either due to his failure to follow instructions or 

to give a sample that registered on the machine. Id. at 77-78. Because of the 

inability to get a reading from the portable breath test, Officer Davies had Kyle 

perform three field sobriety tests: the horizontal gaze nystagmus test, the ninestep walk-and-turn test, and the one-leg stand test. Id. at 78, 179, 183, 188. 

Kyle failed each field sobriety test, which Officer Davies concluded was 
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consistent with intoxication. Id. at 182, 187, 190. Kyle was read Indiana’s 

implied consent law and refused a certified test. Id. at 192-93. 

[7] On March 7, 2019, the State charged Kyle with Level 5 felony operating a 

motor vehicle after forfeiture of license for life, Class B misdemeanor possession 

of marijuana, Class A misdemeanor possession of a synthetic drug or synthetic 

drug lookalike substance, Class C misdemeanor operating a vehicle while 

intoxicated, and Class C misdemeanor refusal to identify self.6 Appellant’s App. 

Vol. 2 at 20.

[8] The trial court held a jury trial on February 17 and 18, 2020. Id. at 10-11. At 

trial, over Kyle’s objection, the trial court admitted into evidence a certified 

copy of Kyle’s driving record from the BMV and a redacted version of Kyle’s

BMV record. Tr. Vol. 2 at 71; State’s Ex. 1, 1(a). The redacted version of Kyle’s 

certified driving record, State’s Exhibit 1(a), was published to the jury.7 Tr. Vol. 

2 at 71. Officer Neese testified that the redacted exhibit identified Kyle and that 

it showed his license status as an habitual traffic violator for life. Id. at 71-72. 

Officer Neese acknowledged that a certified record may still contain errors. Id. 

6 On February 5, 2020, the trial court granted the State’s motion to amend the charging information to add 

an alternative spelling of Kyle’s first name. Appellant’s App. Vol. 2 at 9-10, 43-45. 

7 The unredacted version, which was also admitted into evidence but was not published to the jury, indicates 

that Kyle’s suspension was for an offense occurring on August 24, 2009 that resulted in a felony conviction 

on September 13, 2010 for operating a vehicle as an habitual traffic violator. State’s Ex. 1 at 6, 8, 13, 16. The 

State sought to publish the redacted version to avoid any references to Kyle’s prior convictions, including the 

September 13, 2010 conviction under Indiana Code section 9-30-10-16, which, at the time, resulted in a 

forfeiture of his driving privileges for life. Tr. Vol. 2 at 66-67; see Ind. Code § 9-30-10-16(c) (2009) (“In 

addition to any criminal penalty, a person who is convicted of a felony under subsection (a) forfeits the 

privilege of operating a motor vehicle for life.”). 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020 Page 6 of 21

at 93. Officer Davies testified that, when searching Kyle incident to his arrest,

he found one bag of marijuana, which he immediately recognized as marijuana 

based on his training and experience and its distinct odor and appearance, and

another “three (3) additional bags of a plant-like substance” on Kyle. Id. at 145-

46; State’s Ex. 3, 4. He stated that the single bag indicated the presence of THC, 

while the three additional bags did not. Id. at 150, 156. He testified that based 

on his training and experience the substance in the three bags was “[a] synthetic 

lookalike substance” because it was meant to be “consumed in the same way as 

marijuana; it looks similar to marijuana, but it has different chemical makeup 

than marijuana.” Id. at 157. Office Davies also indicated that the three small 

bags were packaged similar to marijuana, which suggested that it was intended 

to be consumed like marijuana. Id. at 153-55, 217-18. Officer Davies explained

that a synthetic drug or a synthetic drug lookalike substance has a “very sweet 

type [of] smell” that is “similar to potpourri,” which is different from the 

“distinct odor” of marijuana. Id. at 136. Officer Davies testified that he did not 

know the chemical makeup of the substance in the three bags because they were 

not sent to the Indiana State Police Laboratory for testing and acknowledged 

that without testing of the substance’s chemical composition he could not 

visually differentiate between a synthetic drug and a synthetic drug lookalike 

substance. Id. at 209-10, 225-26. 

[9] At the conclusion of the trial, the jury found Kyle guilty as charged. Tr. Vol. III 

at 20-21. The trial court held a sentencing hearing on June 10, 2020. Appellant’s 

App. Vol. 2 at 12-13. The trial court heard argument from Kyle’s counsel and 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020 Page 7 of 21

the State and was able to review Kyle’s presentence investigation report 

(“PSI”). In sentencing Kyle, the trial court found in mitigation that Kyle had 

lived a significant time without engaging in criminal activity and that he had 

taken responsibility for his actions. Tr. Vol. III at 35-36. In aggravation, the 

trial court found that Kyle had previous violations of the conditions of 

community supervision in the past and had a history of criminal activity. Id. 

As to his Level 5 felony conviction for operating a motor vehicle after forfeiture 

of license for life, the trial court observed that he arrived at his habitual traffic 

violator status due to “a number of [d]riving [w]hile [l]icense [s]uspended 

previous convictions” and that the advisory sentence of three years on that 

conviction was “appropriate.” Id. at 36. Kyle’s sentence was as follows: three 

years executed in alternative placement through community corrections for 

operating a motor vehicle after forfeiture of license for life with one year 

suspended; 180 days for Class B misdemeanor possession of marijuana; one 

year for Class A misdemeanor possession of a synthetic drug or synthetic drug 

lookalike substance; sixty days for Class C misdemeanor operating a vehicle 

while intoxicated; and sixty days for Class C misdemeanor refusal to identify 

self. Tr. Vol. III at 36-37; Appellant’s App. Vol. 2 at 130-33. Kyle’s sentences 

were all ordered to run concurrently. Id. Kyle now appeals. 

Discussion and Decision

I. Sufficiency of the Evidence

[10] Kyle argues that the evidence was insufficient to sustain his convictions for 

Level 5 felony operating a vehicle with a lifetime suspension and Class A 
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misdemeanor possession of a synthetic drug or synthetic drug lookalike 

substance. When reviewing the sufficiency of the evidence needed to support a 

criminal conviction, we neither reweigh evidence nor judge witness credibility. 

Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the 

evidence supporting the judgment and any reasonable inferences that can be 

drawn from such evidence.” Id. We will affirm if there is substantial evidence 

of probative value such that a reasonable trier of fact could have concluded the 

defendant was guilty beyond a reasonable doubt. Id.

[11] We first address Kyle’s argument regarding the sufficiency of the evidence for 

his conviction of Level 5 felony operating a vehicle with a lifetime suspension. 

At the time, he committed the offense, the statute provided, in pertinent part, 

that a “person who . . . operates a motor vehicle after the person’s driving 

privileges are forfeited for life under section 16 of this chapter . . . commits a 

Level 5 felony.” Ind. Code § 9-30-10-17(a).

8

 To obtain a conviction under this 

section, the State must prove only two elements: (1) “that the defendant 

operated a motor vehicle”; and (2) “that the defendant’s driving privileges had 

been forfeited for life.” Brock v. State, 955 N.E.2d 195, 204-05 (Ind. 2011)

(quoting Pierce v. State, 737 N.E.2d 1211, 1213-14 (Ind. Ct. App. 2000), trans. 

denied). See also Ford v. State, 711 N.E.2d 86, 88 (Ind. Ct. App. 1999), trans. 

denied. 

8

Indiana Code section 9-30-10-17 was amended in 2019 by Public Law No.184-2019, SECTION. 7. The 

amendments to the statute do not have any effect on the outcome of this appeal. 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020 Page 9 of 21

[12] Citing Chastain v. State, 58 N.E.3d 235, 238 (Ind. Ct. App. 2016) for the 

proposition that penal statutes “must be strictly construed against the State[,]”

Kyle argues that the State’s evidence, a certified copy of Kyle’s driving record 

from the BMV, established only that Kyle’s driving privileges were suspended 

for 199 years as opposed to forfeiture for life as required by statute. He 

contends that only the certification page of Kyle’s certified driving record lists 

his driver’s license status as suspended for life. According to Kyle, this renders 

the State’s evidence “insufficient as a matter of law,” and his conviction for the 

offense should be vacated. Appellant’s Br. at 13. 

[13] We agree with Kyle that penal statutes must be construed against the State. We 

disagree with Kyle that application of that principle to his case renders the 

State’s evidence insufficient to convict him. Here, as evidence that Kyle’s 

driving privileges were forfeited for life, the jury had before it a redacted version 

of Kyle’s certified driving record.

9 Contrary to his contention that the sole 

9

Indiana Code section 9-30-3-15 provides that a certified computer printout of the relevant portions of the 

defendant's driving record is prima facie evidence of a prior conviction. That statute provides as follows:

In a proceeding, prosecution, or hearing where the prosecuting attorney must prove that the 

defendant had a prior conviction for an offense under this title, the relevant portions of a 

certified computer printout or electronic copy as set forth in IC 9-14-3-4 made from the records 

of the bureau are admissible as prima facie evidence of the prior conviction. However, the 

prosecuting attorney must establish that the document identifies the defendant by the 

defendant’s driving license number or by any other identification method utilized by the bureau.

Ind. Code § 9-30-3-15; see also Brock v. State, 955 N.E.2d 195, 205 (Ind. 2011); Pierce v. State, 737 N.E.2d 1211, 

1214 (Ind. Ct. App. 2000), trans. denied. Kyle cites to trial testimony that a certified record may still contain 

erroneous information, that the redacted exhibit contained a different driver’s license number, but neither 

Kyle nor the transcript indicate where that error appears, and he does not contend on appeal that the 

redacted exhibit otherwise fails to identify him. Tr. Vol. 2 at 93. 
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reference to his driver’s license status being listed as suspended for life occurs on 

the certification page of the redacted exhibit, the first page of the exhibit, titled 

“Indiana Official Driver Record,” specifically states “License status: 

HABITUAL TRAFFIC VIOLATOR – LIFE.” State’s Ex. 1(a) at 30. The 

redacted exhibit removed any reference to Kyle’s prior conviction but listed a 

suspension with an effective date of September 13, 2010 and an expiration date 

of September 13, 2299 and that the notice of suspension was mailed on 

September 20, 2010. Id. at 32. The redacted exhibit included the corresponding

mailing of the notice of suspension from the BMV informing Kyle that his

driving privileges were suspended for a period of 199 years “effective 

9/13/2010 through 9/13/2299.” Id. at 39. It also included a document titled, 

“How to Read [a BMV] Official Driver Record,” applicable to driver’s record 

printouts printed after June 30, 2016, noting that a driver’s license status with 

the designation “HABITUAL TRAFFIC VIOLATOR – LIFE” indicated that 

the driver’s “[d]riving privileges are forfeited for life as a habitual traffic 

violator[.]” Id. at 48. Kyle’s argument is an invitation for us to reweigh the 

evidence, which we cannot do. See Bailey, 907 N.E.2d at 1005. A reasonable 

jury reviewing the information contained within the redacted exhibit could 

conclude that Kyle’s driving privileges were suspended for life. The State’s 

evidence was sufficient to support Kyle’s conviction for Level 5 felony 

operating a vehicle with a lifetime suspension. 

[14] We next address the sufficiency of the evidence for Kyle’s conviction of Class A 

misdemeanor possession of a synthetic drug lookalike substance. Kyle
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contends that the State failed to present sufficient evidence to show that the 

substance found on his person was a synthetic drug lookalike substance. At the 

time Kyle committed the offense, and before the statute that criminalized the 

offense was repealed on July 1, 2019, Indiana Code section 35-48-4-11.510

provided, in pertinent part that “[a] person who knowingly or intentionally 

possesses a synthetic drug or synthetic drug lookalike substance commits 

possession of a synthetic drug or synthetic drug lookalike substance, a Class A 

misdemeanor.” The statute also provided that a “‘synthetic drug lookalike 

substance’ has the meaning set forth in I.C. 35-31.5-2-321.5(a)(2).” Ind. Code § 

35-48-4-11.5. At the time Kyle committed the offense, Indiana Code section 

35-31.5-2-321.511 provided as follows:

(a) “Synthetic drug lookalike substance”, except as provided in 

subsection (b), means one (1) or more of the following:

(1) A substance, other than a synthetic drug, which any of the 

factors listed in subsection (c) would lead a reasonable person to 

believe to be a synthetic drug.

(2) A substance, other than a synthetic drug:

(A) that a person knows or should have known was intended to 

be consumed; and

10 This section was repealed by Public Law No. 80-2019, SECTION 30. 

11 This section was repealed by Public Law No. 80-2019, SECTION 15. 
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(B) the consumption of which the person knows or should have 

known to be intended to cause intoxication.

(b) The term “synthetic drug lookalike substance” does not 

include the following:

(1) Food and food ingredients (as defined in IC 6-2.5-1-20).

(2) Alcohol (as defined in IC 7.1-1-3-4).

(3) A legend drug (as defined in IC 16-18-2-199).

(4) Tobacco.

(5) A dietary supplement (as defined in IC 6-2.5-1-16).

(c) In determining whether a substance is a synthetic drug 

lookalike substance, the following factors may be considered:

(1) The overall appearance of a dosage unit of the substance, 

including its shape, color, size, markings or lack of markings, 

taste, consistency, and any other identifying physical 

characteristics.

(2) How the substance is packaged for sale or distribution, 

including the shape, color, size, markings or lack of markings, 

and any other identifying physical characteristics of the 

packaging.

(3) Any statement made by the owner or person in control of the 

substance concerning the substance’s nature, use, or effect.
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(4) Any statement made to the buyer or recipient of the substance 

suggesting or implying that the substance is a synthetic drug.

(5) Any statement made to the buyer or recipient of the substance 

suggesting or implying that the substance may be resold for 

profit.

(6) The overall circumstances under which the substance is 

distributed, including whether:

(A) the distribution included an exchange of, or demand for, 

money or other property as consideration; and

(B) the amount of the consideration was substantially greater 

than the reasonable retail market value of the substance the seller 

claims the substance to be.

A “synthetic drug” is defined with reference to chemical compounds and 

includes any chemical compound determined to be a synthetic drug by rule 

adopted by the Indiana board of pharmacy. See Ind. Code § 35-31.5-2-321. 

[15] Kyle appears to argue that without testing the substance the State could not 

show that it was a synthetic drug because its chemical composition was 

unknown. He contends that Officer Davies’s testimony alone could not 

establish that the substance was a synthetic drug lookalike substance because it 

had never been tested to confirm its identity and Officer Davies acknowledged

minute observable differences between a synthetic drug and a synthetic drug 

lookalike substance.
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[16] In Yoakum v. State, another panel of this court addressed the sufficiency of the 

evidence for a conviction under Indiana Code section 35-48-4-11.5 95 N.E.3d 

169, 173 (Ind. Ct. App. 2018), trans. denied. The defendant in that case argued 

the State’s evidence was insufficient to prove that the substance was a synthetic 

lookalike substance because there was no scientific testing of the substance, and 

the officers’ testimony did not establish that the substance was a synthetic drug 

lookalike substance. Id. at 174. We rejected the defendant’s arguments,

explaining:

“For offenses involving controlled substances, the State is not

required to introduce the subject contraband to obtain a

conviction for dealing or possession.” Boggs v. State, 928 N.E.2d

855, 865 (Ind. Ct. App. 2010), trans. denied. The identity of a

controlled substance may be established through witness

testimony and circumstantial evidence. Helton v. State, 907

N.E.2d 1020, 1024 (Ind. 2009). Our [S]upreme [C]ourt has held

that, although “chemical analysis is one way, and perhaps the

best way, to establish the identity of a compound,” the testimony

of “someone sufficiently experienced with the drug may establish

its identity, as may other circumstantial evidence.” Vasquez v.

State, 741 N.E.2d 1214, 1216 (Ind. 2001).

Id. at 175. In affirming the defendant’s conviction for knowing or intentional 

possession of a synthetic drug lookalike substance, we noted that the officers 

testified that they had experience recognizing synthetic marijuana and that the 

recovered substance looked like synthetic marijuana, smelled like synthetic 

marijuana, and was packaged in a ripped plastic baggie. Id. 
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[17] Here, Officer Davies stated that a synthetic drug or a synthetic drug lookalike 

substance has a “very sweet type [of] smell” that is “similar to potpourri” and

different from the “distinct odor” of marijuana. Id. at 136. When trying to 

differentiate marijuana from a synthetic drug or a synthetic drug lookalike 

substance, Officer Davies testified that “they look similar in appearance” but “if 

you put them side-by-side, there’s a noticeable difference,” but “you look for the

color – whether it’s green, brown. It’s a plant-like material as well, but it is 

finely chopped up, it’s not a [sic] leafy or kept in buds like marijuana is.” Id. at 

137. Officer Davies testified that he found one bag of marijuana12 and “three 

(3) additional bags of a plant-like substance” on Kyle. Tr. Vol. II at 145; State’s 

Ex. 3, 4.

[18] Officer Davies testified that the three bags of plant-like substance recovered 

from Kyle’s pants pocket appeared visually similar to marijuana in that it was a 

brown-green plant like substance, but that it was finely chopped and had a 

potpourri smell that he had explained was typical of synthetic drugs and 

synthetic drug lookalike substances. Id. at 136, 153; State’s Ex. 4. Officer 

Davies did not believe that the substance in the three bags was marijuana but 

field-tested the three bags for THC and none contained THC. Id. at 156. As to 

the substance’s chemical composition, Officer Davies testified that he did not 

12 Officer Davies testified he was able to determine that the bag was marijuana based on his experience and 

training, describing the substance as “a brown, green, leafy substance” that had a “distinct and pungent” 

odor. Tr. Vol. II at 146. The substance also field-tested positive for THC, the active ingredient in marijuana. 

Id. at 150. 
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know the chemical makeup of the substance in the three bags because they were 

not sent to the Indiana State Police Laboratory for testing. Id. at 209-10. He 

also acknowledged that without testing of the substance’s chemical 

composition, he could not visually differentiate between a synthetic drug and a 

synthetic drug lookalike substance. Id. at 225-26. However, he testified that 

based on his training experience the substance in the three bags was “[a] 

synthetic lookalike substance” because it was meant to be “consumed in the 

same way as marijuana; it looks similar to marijuana, but it has different 

chemical makeup than marijuana.” Id. at 157. Office Davies also indicated 

that the three small bags were packaged similar to marijuana, which suggested 

that it was intended to be consumed like marijuana. Id. at 153-55, 217-18. As 

noted, while chemical analysis may establish the identity of a substance, it is 

not always necessary, where, as here, the jury heard Officer Davies’ testimony 

regarding the substance and saw the exhibits depicting both the marijuana and 

the synthetic drug lookalike substance and determined that it was a synthetic 

drug lookalike substance. See Vasquez, 741 N.E.2d at 1216; Yoakum, 95 N.E.3d 

at 175. The State’s evidence was sufficient to demonstrate that Kyle knowingly 

or intentionally possessed a synthetic drug lookalike substance; therefore, the 

evidence was sufficient to sustain his conviction. 

II. Inappropriate Sentence

[19] Kyle next contends that his sentence is inappropriate in light of the nature of the 

offense and his character. Pursuant to Indiana Appellate Rule 7(B), this court 

“may revise a sentence authorized by statute if, after due consideration of the 
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trial court’s decision, the [c]ourt finds that the sentence is inappropriate in light 

of the nature of the offense and the character of the offender.” Whether a 

sentence is inappropriate turns on our sense of the culpability of the defendant, 

the severity of the crime, the damage done to others, and other factors that 

come to light in a given case. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 

2008). We defer to the trial court’s decision, and our goal is to determine 

whether the appellant’s sentence is inappropriate, not whether some other 

sentence would be more appropriate. Conley v. State, 972 N.E.2d 864, 876 (Ind. 

2012). “Such deference should prevail unless overcome by compelling evidence 

portraying in a positive light the nature of the offense (such as accompanied by 

restraint, regard, and lack of brutality) and the defendant’s character (such as 

substantial virtuous traits or persistent examples of good character).” Stephenson 

v. State, 29 N.E.3d 111, 122 (Ind. 2015). When we review a sentence, we seek 

to leaven the outliers, not to achieve a perceived correct result. Cardwell, 895 

N.E.2d at 1225. On appeal, it is the defendant’s burden to persuade us that the 

sentence imposed by the trial court is inappropriate. Shell v. State, 927 N.E.2d 

413, 422 (Ind. Ct. App. 2010).

[20] The advisory sentence is the starting point the legislature has selected as an 

appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016, 

1019 (Ind. 2012). A reviewing court is thus “unlikely to consider an advisory

sentence inappropriate.” Shelby v. State, 986 N.E.2d 345, 371 (Ind. Ct. App. 

2013), trans. denied. Rather, the defendant “bears a particularly heavy burden in 

persuading us that his sentence is inappropriate when the trial court imposes the
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advisory sentence.” Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App, 

2011), trans. denied. Here, Kyle was sentenced on his conviction for Level 5 

felony operating a vehicle after forfeiture of license for life to three years with 

two years executed in alternative placement through community corrections 

and one year suspended to probation. Appellant’s App. Vol. 2 at 130-34; Tr. Vol. 

III at 36-37. Kyle’s sentences on his misdemeanor convictions were all ordered 

to be served concurrently to his Level 5 felony conviction; thus, Kyle received 

an aggregate sentence of three years. Id. Kyle’s Level 5 felony offense carries 

an advisory sentence of three years with a sentencing range of one to six years. 

Ind. Code § 35-30-2-6. Kyle received the advisory sentence for his Level 5 

felony conviction. 

[21] As to the nature of his offense, Kyle argues that his offense was “unremarkable” 

and “mundane” in that, while he was driving while suspended, he was not 

driving erratically and was generally cooperative, and his offense did not result 

in violence or physical harm to any person or property. Appellant’s Br. at 17. 

The nature of the offense is found in the details and circumstances of the 

commission of the offense and the defendant’s participation. Perry v. State, 78 

N.E.3d 1, 13 (Ind. Ct. App. 2017). The nature of Kyle’s offense shows that he 

was not observed to be driving erratically and was initially pulled over for 

failure to dim his bright lights. Tr. Vol. II at 38-40, 81-82. Kyle’s offense did 

not involve violence or result in physical harm to any person or property. 

When Kyle was pulled over and was approached by Officer Neese, Kyle 

provided false information as to his identity, which inhibited the investigation, 
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drove while intoxicated, and possessed contraband, albeit in relatively small 

amounts. Id. at 41-47, 144-45, 147, 150, 156-57, 182, 187, 190. We cannot say 

that Kyle’s sentence was inappropriate in light of the nature of the offense. 

[22] As to his character, Kyle argues that his criminal history “consists of operating 

offenses and misdemeanors” and, when coupled with the favorable aspects of 

his character, should result in revision of his sentence. Appellant’s Br. at 18. 

“The character of the offender is shown by the offender’s life and conduct.” 

Croy v. State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). When considering the 

character of the offender, one relevant fact is the defendant’s criminal history. 

Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013).

[23] Here, the trial court identified Kyle’s history of criminal or delinquent activity 

in aggravation, and it also noted that Kyle’s last conviction occurred 

approximately ten years before the instant conviction. Tr. Vol. III at 35. Kyle, 

who was thirty-seven at the time of sentencing, had accumulated adult criminal 

convictions which included Class A misdemeanor theft, Class C felony armed 

robbery, Class D felony theft, Class C felony burglary, and Class A 

misdemeanor domestic battery in the presence of a child under the age of 

sixteen. Appellant’s Conf. App. Vol. 2 at 110-12. Kyle had also previously 

violated the terms of community supervision. Id. at 111; Tr. Vol. III at 29, 35. 

In addition, Kyle compiled an extensive list of traffic violations, including three 

convictions for operating a vehicle without ever receiving a license, one 

conviction for driving while suspended, and a conviction for operating a vehicle 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020 Page 20 of 21

as an habitual traffic violator on September 13, 2010.

13

 Appellant’s Conf. App. 

Vol. 2. at 110-13. The trial court noted that Kyle took responsibility for his 

actions and that a significant length of time had elapsed between his most 

recent criminal conviction and the instant convictions, which the trial court 

determined reflected favorably on him. It also observed that despite the length 

of the time between convictions Kyle had attained his habitual traffic violator 

status due to “a number of [d]riving [w]hile [l]icense [s]uspended previous 

convictions.” Id. at 36. Although we acknowledge that Kyle’s volunteering at 

the Boy’s and Girl’s Club and his employment history are favorable factors, we 

cannot say that Kyle has met his burden to show that his three-year sentence is 

inappropriate in light of his character.14 See Fernbach, 954 N.E.2d at 1089

(noting that the burden to show a sentence is inappropriate is “particularly 

heavy” when the trial court imposes the advisory sentence). 

13 Kyle cites Douglas v. State, 878 N.E.2d 873 (Ind. Ct. App. 2007), Ruiz v. State, 818 N.E.2d 927 (Ind. 2004)

and Westmoreland v. State, 787 N.E.2d 1005 (Ind. Ct. App. 2003) in support of his position that his sentence is 

inappropriate in light of his character. We note that in those cases courts revised enhanced or maximum 

sentences to the presumptive sentences on the basis of time between criminal convictions or criminal history 

that was minor or dissimilar to the particular conviction. Douglas, 878 N.E.2d at 881, Ruiz, 818 N.E.2d at 

929-30, Westmoreland, 787 N.E.2d at 1011-12. Here, Kyle received the advisory sentence (the equivalent to 

the presumptive sentence under the old sentencing scheme) and not an enhanced sentence. Therefore, we do 

not find those cases persuasive.

14 To the extent Kyle contends that the principles behind Sanquenetti v. State, 917 N.E.2d 1287 (Ind. Ct. App.

2009) support a revision of his sentence, we disagree. In Sanquenetti, we revised a defendant’s four-year 

advisory sentence for Class C felony nonsupport of a dependent child to two years, holding that because 

certain portions of the defendant’s support arrearage accrued within the timeframe for which she had already 

been charged, convicted, and sentenced, it was error to consider those portions again when assessing the 

nature of the offense for sentencing purposes. 917 N.E.2d at 1290-92. We cannot say that Sanquetti supports

a revision of Kyle’s sentence. 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020 Page 21 of 21

[24] Affirmed.

Bradford, C.J., and May, J., concur.