Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not                                              Oct 30 2013, 5:45 am
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:                          ATTORNEYS FOR APPELLEE:

R. PATRICK MAGRATH                               GREGORY F. ZOELLER
Alcorn Goering & Sage, LLP                       Attorney General of Indiana
Madison, Indiana
                                                 RICHARD C. WEBSTER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

CHRISTOPHER PEELMAN,                             )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )       No. 39A01-1301-CR-27
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE JEFFERSON CIRCUIT COURT
                           The Honorable Ted R. Todd, Judge
                            Cause No. 39C01-1207-FA-930




                                      October 30, 2013



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                       Case Summary and Issues

        Christopher Peelman appeals his convictions, and corresponding sentence, for

dealing in methamphetamine and conspiracy to commit dealing in methamphetamine,

both of which are Class A felonies. Peelman raises four issues for our review: (1)

whether the warrantless search of the VanKuren residence violated Peelman’s rights

under the Fourth Amendment to the United States Constitution or Article 1, Section 11 of

the Indiana Constitution; (2) whether there was sufficient evidence to sustain Peelman’s

convictions; (3) whether the trial court abused its discretion when it sentenced Peelman

and (4) whether Peelman’s sentence was inappropriate.

        Concluding that Peelman’s rights under the Fourth Amendment and the Indiana

Constitution were not violated; there was sufficient evidence to support his convictions;

and Peelman’s sentence was not improper, we affirm.

                                     Facts and Procedural History

        On July 25, 2012, Officer Johnathan Simpson and Officer Jacob Schmidt of the

Madison Police Department were reviewing the NPLEx database, which maintains a

record of pseudoephedrine purchases for Jefferson County, Indiana.1                            The officers

noticed that three pseudoephedrine purchases were made by persons with the last name

Taulbee, and all of the purchases were made at different pharmacies within only forty-

five minutes of one another. Believing that this set of purchases was suspicious and

potentially linked to methamphetamine, the officers went to the Taulbee residence to

investigate.


        1
           Pseudoephedrine is a key ingredient in the illegal manufacturing of methamphetamine. In an attempt to
curb the manufacture of methamphetamine, Indiana law sets limits on the amount of pseudoephedrine that an
individual may purchase in a given day, month, or year. See Ind. Code § 35-48-4-14.7(e).
                                                       2
        The officers spoke with Joyce Taulbee, who admitted that she, her husband, and

her son had each agreed to purchase pseudoephedrine for Darci McFadden in exchange

for money. Joyce told the officers that McFadden was getting the pseudoephedrine for a

man named “Chris” and that McFadden was taking the pseudoephedrine to Scott

VanKuren’s residence.

      The officers drove to the VanKuren residence and parked in the driveway. As the

officers approached the front door, they observed through the front window silhouettes of

people moving inside. The officers opened the screen door to knock and were overcome

by a strong chemical odor, which Officer Simpson recognized as being associated with

the manufacturing of methamphetamine. According to Officer Simpson, the odor was so

pungent that it made his eyes water, and both officers had to take a couple steps back

from the door. Then, the officers knocked and announced themselves as police officers.

The officers continued to see silhouettes moving around inside.       After the officers

knocked several times and received no response, they became concerned that the persons

in the house might be destroying evidence and that the presence of a potential

methamphetamine lab inside may present a danger. The officers then kicked the front

door open, entered, and announced themselves as police.

      The officers found McFadden, VanKuren, and Gerald Ritch standing in the

hallway between the living room and the back of the house. The officers detained

McFadden, VanKuren, and Ritch and took them outside. The officers asked if anyone

else was inside, and the suspects said “no.” However, the officers heard a commotion

from the house, re-entered, and ordered whoever was inside to come out. Moments later,

Peelman emerged from the back bedroom, and the officers detained Peelman.
                                           3
       The officers conducted a protective sweep of the residence, during which they

seized several items linked to the manufacturing of methamphetamine, including

camping fuel, fuel additive, and white pills found in the toilet and sink which were later

determined to be pseudoephedrine. Next, the officers obtained a search warrant and

conducted a more thorough search of the residence. Additional evidence found at the

residence included cut-up lithium batteries; three containers of drain opener; plastic

containers of ammonium nitrate; hypodermic needles; a plastic container holding a white

residue, which was determined to be methamphetamine; and receipts for some of the

items seized. The police also recovered cell phones, which revealed text messages

between   Peelman,    VanKuren,     and   McFadden concerning        the acquisition of

pseudoephedrine and plans to go shopping for camping fuel and lithium batteries. The

discovered receipts led the police to Walmart security tapes, which showed Peelman

arriving at the store with VanKuren and showed Ritch, McFadden, VanKuren, and

Peelman all purchasing items within twenty minutes of one another.

       The State charged Peelman with Count I, dealing in methamphetamine, a Class A

felony; Count II, conspiracy to commit dealing in methamphetamine, a Class A felony;

and Count III, possession of methamphetamine, a Class B felony. Peelman filed a

motion to suppress, which was denied after an evidentiary hearing on the issue. A jury

found Peelman guilty of Counts I and II but was unable to reach a verdict as to Count III.

Peelman was sentenced to thirty-eight years on Count I and thirty-eight years on Count

II, to be served concurrently for an aggregate sentence of thirty-eight years imprisonment.

Additional facts will be provided as necessary.


                                            4
                                 Discussion and Decision

                                  I. Search and Seizure

       First, Peelman argues that the warrantless entry of VanKuren’s residence violated

his rights under the Fourth Amendment to the United States Constitution and Article 1,

Section 11 of the Indiana Constitution, both of which ensure the right to be free from

unreasonable searches and seizures. The State counters that Peelman, as a guest in

VanKuren’s home, had no reasonable expectation of privacy in the residence and cannot

challenge the search under either the Fourth Amendment or the Indiana Constitution.

And even if Peelman can challenge the search, the State argues that exigent

circumstances justified the officers’ warrantless entry.

       As an initial matter, the State argues that Peelman does not have standing to

challenge the search of VanKuren’s residence. However, this argument was not raised

before the trial court, and the State argues it now for the first time on appeal. Our

supreme court has previously stated that it would be fundamentally unfair for the State to

argue a defendant lacks standing to challenge a search after he was never prompted to

make a record on that point at trial. Everroad v. State, 590 N.E.2d 567, 569 (Ind. 1992).

Thus, when a defendant challenges the constitutionality of a search, the State may not

argue lack of standing for the first time on appeal. Id.; see also Edwards v. State, 832

N.E.2d 1072, 1074-75 (Ind. Ct. App. 2005).

                                    A. Standard of Review

       Our standard of review for denial of a motion to suppress is similar to other

evidentiary issues. We consider evidence from both the trial and the suppression hearing,

so long as evidence from the suppression hearing does not directly contradict trial
                                             5
evidence. Montgomery v. State, 904 N.E.2d 374, 377 (Ind. Ct. App. 2009), trans. denied.

We will not reweigh the evidence but will consider the evidence most favorably to the

trial court’s ruling. Id. Legal issues—such as determinations of reasonable suspicion and

probable cause—are reviewed de novo. Myers v. State, 839 N.E.2d 1146, 1150 (Ind.

2005).

                    B. Fourth Amendment to the United States Constitution

         Peelman contends that the warrantless entry of VanKuren’s residence violated his

rights under the Fourth Amendment. The outcome of this case turns on whether exigent

circumstances were present to justify the officers’ entry.

         The Fourth Amendment to the United States Constitution provides:

         The right of the people to be secure in their persons, houses, papers, and
         effects, against unreasonable searches and seizures, shall not be violated,
         and no Warrants shall issue, but upon probable cause, supported by Oath or
         affirmation, and particularly describing the place to be searched, and the
         persons or things to be seized.

It is a basic principle of Fourth Amendment law that “searches and seizures inside a

home without a warrant are presumptively unreasonable.” Kentucky v. King, 131 S.Ct.

1849, 1856 (2011) (citation omitted). However, the Court has said that this presumption

may be overcome because the “ultimate touchstone of the Fourth Amendment is

reasonableness. Accordingly, the warrant requirement is subject to certain reasonable

exceptions.”    Id. (citations and quotation marks omitted). Among these recognized

exceptions is the existence of exigent circumstances. Id.

         The State argues that two exigencies were present in this case which justify the

warrantless entry: the need to assist persons subject to a threat of injury and the need to

prevent the imminent destruction of evidence, both of which are encompassed by the
                                             6
exigent circumstances exception. See id. We find the first of these rationales to be

sufficient in this case.

       In State v. Crabb, this court held that a warrantless entry into the defendant’s

residence was justified by exigent circumstances where the police could smell ether, an

odor which they associated with the manufacturing of methamphetamine, coming from

the house, and the police had reason to believe that a small child was inside the house.

835 N.E.2d 1068, 1069 (Ind. Ct. App. 2005), trans. denied. The court reasoned that the

police officers could reasonably believe that a person inside the residence was in

immediate need of aid, due to the dangers presented by the manufacturing of

methamphetamine. Id. at 1071. Those dangers included the risk of explosion due to

flammable chemicals and the risk of effects of chemicals on the respiratory system, such

as numbing of the senses or loss of consciousness. Id. The court also noted that a finding

of exigency was also supported by the fact that police were aware of other indicia that

methamphetamine was being manufactured, aside from the smell of ether. Id.

       The circumstances in this case are similar to those in Crabb and require the same

conclusion. When Officer Simpson approached the VanKuren residence, he was met

with a chemical odor of such potency that it caused his eyes to water and forced him to

take a few steps away from the door.       It was an odor that he associated with the

manufacturing of methamphetamine. Further, Officer Simpson could see silhouettes

through the front window and thus knew that more than one person was inside. Evidence

was presented at the suppression hearing that Officer Simpson knew of the dangers

associated with manufacturing methamphetamine, including the risk of fire or explosion

and the risk of exposure to chemicals used in the manufacturing of methamphetamine.
                                            7
Under these circumstances, the officers had an objectively reasonable basis for believing

that a threat to safety existed, and thus, the Fourth Amendment was not violated.

       Peelman attempts to distinguish the facts in this case from those in Crabb. First,

he argues this case is different because there is no corroborating evidence from neighbors

regarding an odor emanating from the house. This is no more than a request that we find

Officer Simpson’s testimony incredible with respect to his description of the odor.

However, the trial court clearly credited and relied upon Officer Simpson’s testimony in

its order denying Peelman’s motion to suppress, and we decline to second-guess the fact-

finder in the way that Peelman desires. See Montgomery, 904 N.E.2d at 377.

       Second, Peelman asserts that “there was no testimony or other evidence from

officers indicating that they legitimately feared for the safety of individuals in or around

the premises” and the “officers act[ed] only on their desire to obtain evidence . . . .”

Appellant’s Brief at 11. Peelman’s argument on this point is a red herring. Even if it

were true that the officers entered the house solely based upon a desire to obtain evidence

without any consideration of safety, it would be irrelevant to the Fourth Amendment

analysis.   As the Supreme Court has stated, it is well-settled that “[a]n action is

‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of

mind, as long as the circumstances, viewed objectively, justify [the] action. The officer’s

subjective motivation is irrelevant.” Brigham City, Utah v. Stuart, 547 U.S. 398, 404

(2006) (citations and quotation marks omitted) (emphasis in original). The circumstances

of this case, viewed objectively, support the proposition that the officers could reasonably

believe that the dangers of manufacturing methamphetamine presented a threat to the

safety of individuals in the house.
                                             8
        Finally, Peelman points out that this court noted in Crabb that it was “not ready to

draw a bright line which would allow officers to enter a home without a warrant based

solely on the smell of ether.” Crabb, 835 N.E.2d at 1071. We do not believe that this

case draws such a bright line. Before ever arriving at the VanKuren residence and

experiencing the chemical odor emanating from the house, the officers in this case had

evidence from the Taulbees which led them to suspect methamphetamine was being

manufactured in the house. Moreover, the silhouettes observed by the officers indicated

that multiple persons were inside the house. The exigency existing in this case is a result

of the totality of these circumstances and is not based solely on the smell of a chemical

odor associated with the manufacturing of methamphetamine.2

        In sum, we hold that the circumstances of this case justified the warrantless entry

of VanKuren’s home under the exigent circumstances exception to the Fourth

Amendment’s warrant requirement.

                          C. Article 1, Section 11 of the Indiana Constitution

        Peelman also contends that the search violated Article 1, Section 11 of the Indiana

Constitution.       With language nearly identical to the Fourth Amendment, Article 1,

Section 11 provides:

        The right of the people to be secure in their persons, houses, papers, and
        effects, against unreasonable search or seizure, shall not be violated; and no
        warrant shall issue, but upon probable cause, supported by oath or
        affirmation, and particularly describing the place to be searched, and the
        person or thing to be seized.



        2
           Like the court in Crabb, which wished to limit any future extension of its holding, we, too, believe that
evidence of a person’s presence in the home (i.e. evidence that someone is subject to the threat of danger) and
corroborating evidence of methamphetamine manufacturing, in addition to a chemical odor, must be present to
create exigent circumstances justifying the warrantless entry into a home.
                                                         9
Under the Indiana Constitution, the constitutionality of a search turns on an evaluation of

police conduct under the totality of the circumstances. Litchfield v. State, 824 N.E.2d

356, 359 (Ind. 2005).      The reasonableness of a search or seizure is determined by

balancing “1) the degree of concern, suspicion, or knowledge that a violation has

occurred, 2) the degree of intrusion the method of the search or seizure imposes on the

citizen’s ordinary activities, and 3) the extent of law enforcement needs.” Id. at 361.

       With respect to the degree of concern, suspicion, or knowledge that a violation has

occurred, we believe that this factor weighs in favor of finding the search to be

reasonable. The police arrived at the VanKuren residence with information from the

Taulbees that the occupiers of the house were involved in suspicious (and illegal)

purchasing    of   pseudoephedrine,    a   primary    ingredient   used   to   manufacture

methamphetamine. This suspicion was bolstered upon arrival at the residence when the

officers detected a chemical odor coming from the house which they knew to be

associated with the manufacturing of methamphetamine. This evidence gave the officers

probable cause to believe a violation of the law was occurring inside the home. See, e.g.,

VanWinkle v. State, 764 N.E.2d 258, 264-65 (Ind. Ct. App. 2002) (odor associated with

manufacturing methamphetamine, along with other evidence, constituted probable

cause), trans. denied; State v. Hawkins, 766 N.E.2d 749, 752 (Ind. Ct. App. 2002) (odor

of marijuana detected by experienced officer was sufficient to constitute probable cause

for a search), trans. denied.

       Next, we consider the degree of intrusion the search imposed on Peelman’s

ordinary activities. We recognize that the intrusion in this case was a warrantless entry

into a home, which is presumptively unreasonable. Krise v. State, 746 N.E.2d 957, 962
                                             10
(Ind. 2001). That said, while it was a home that the police intruded upon, it was not

Peelman’s home. Peelman was, at best, a guest in the house and, at worst, visiting for the

sole purpose of furthering illegal activity.       Moreover, he was in the house only

approximately twenty minutes before the police arrived. We believe these facts turn what

is otherwise a presumptively invasive search into a less intrusive invasion on Peelman’s

privacy interests. Cf. Minnesota v. Carter, 525 U.S. 83, 90-91 (1998) (defendant who

was in another person’s apartment for a short time and for the sole purpose of packaging

cocaine did not have a legitimate expectation of privacy in the apartment). The Indiana

Supreme Court has said a person’s right under Section 11 is a “personal right” and “a

defendant cannot successfully object to a search of the premises of another if such search

does not unlawfully invade his own privacy.” Peterson v. State, 674 N.E.2d 528, 533-34

(Ind. 1996), cert. denied, 522 U.S. 1078 (1998). And although these statements were

made in the context of standing under the Indiana Constitution, we believe that such a

consideration of a defendant’s interest in the place searched is relevant in determining the

reasonableness of the search as it pertains to the degree of intrusion.

       Furthermore, our supreme court has intimated that the reasonableness of a search

depends upon whether the search is conducted based on arbitrary selection of the subject

or on individualized suspicion. Litchfield, 824 N.E.2d at 360-61. Here, the police were

not arbitrarily walking up to houses and busting down doors in hopes that they catch a

whiff of chemicals or marijuana. Rather, the officers’ decision to visit the VanKuren

residence and ultimately enter the premises was based on evidence that led them to

suspect illegal activity was occurring specifically at that residence.


                                              11
        Finally, we consider the extent of law enforcement needs in this case, which we

believe were significant. As discussed above, the circumstances of this case provided the

officers with an objectively reasonable basis for believing a threat to human safety

existed. Such concerns for public safety are equally important in our analysis under the

Indiana Constitution. “It is because of concerns among citizens about safety, security,

and protection that some intrusions upon privacy are tolerated, so long as they are

reasonably aimed toward those concerns.” Montgomery, 904 N.E.2d at 382 (quoting

Holder v. State, 847 N.E.2d 930, 940 (Ind. 2006)). In addition to general concerns for

safety, it is also relevant that this court has previously acknowledged that

“methamphetamine production and use have rapidly become plagues in our communities

and . . . law enforcement is inundated with new challenges related to methamphetamine.”

Crabb, 835 N.E.2d at 1071. Unfortunately, Indiana and its residents continue to be

victims of that plague.3

        Under the totality of the circumstances, we hold that the search challenged in this

case was not unreasonable and thus did not violate Article 1, Section 11 of the Indiana

Constitution.

                                   II. Sufficiency of the Evidence

                                          A. Standard of Review

        Peelman maintains that there was insufficient evidence presented at trial to support

his convictions for dealing in methamphetamine and conspiracy to commit the same.

When reviewing a defendant’s claim of insufficient evidence, the reviewing court will

        3
          See Missouri, Tennessee, Indiana, and Kentucky account for nearly half of US meth incidents in 2012,
NOLA.COM (Sept. 12, 2013), http://www.nola.com/news/index.ssf/2013/09/breaking_good_us_meth_lab_seiz.html;
Brittany Tyner, Meth lab numbers on target for record-breaking year, WLFI.COM (Aug. 30, 2013, 9:54 AM),
http://www.wlfi.com/news/local/meth-lab-numbers-on-target-for-record-breaking-year.
                                                     12
neither reweigh the evidence nor judge the credibility of the witnesses, and we must

respect “the jury’s exclusive province to weigh conflicting evidence.” McHenry v. State,

820 N.E.2d 124, 126 (Ind. 2005) (citation omitted). We consider only the probative

evidence and reasonable inferences supporting the verdict. Id. And we must affirm “if

the probative evidence and reasonable inferences drawn from the evidence could have

allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.”

Id. (citation omitted).

                                      B. Dealing in Methamphetamine

        A person commits dealing in methamphetamine when he “knowingly or

intentionally . . . manufactures . . . [or] possesses, with intent to . . . manufacture . . .

methamphetamine, pure or adulterated . . . .” Ind. Code § 35-48-4-1.1(a).4 The term

“manufacture” includes the production, preparation or processing of a controlled

substance. Ind. Code § 35-48-1-18. We have held it is not necessary that the process be

completed or that a final product actually exist before the statute can be applied. Traylor

v. State, 817 N.E.2d 611, 619 (Ind. Ct. App. 2004), trans. denied.

        Peelman presents us with a single argument attacking the sufficiency of the State’s

evidence at trial; namely, Peelman maintains the evidence did not prove that he was

involved in the manufacturing of methamphetamine or that he had possession or control

of the precursors found at VanKuren’s residence.                        We are not persuaded by this

argument.




         4
            In this case, Peelman’s crimes were Class A felonies, because his acts were committed within 1000 feet
of a family housing complex. See Ind. Code § 35-48-4-1.1(b).
                                                       13
       Absent actual possession, evidence of constructive possession is sufficient to

support a conviction for a drug offense. Crocker v. State, 989 N.E.2d 812, 822 (Ind. Ct.

App. 2013), trans. denied. Constructive possession occurs if a person has the intent and

the capability to maintain dominion and control over the contraband. Id. To prove the

intent element of constructive possession, the State must demonstrate the defendant’s

knowledge of the presence of the contraband, which may be inferred from either (1) the

exclusive dominion and control over the premises containing the contraband or (2) “if the

control is non-exclusive, evidence of additional circumstances pointing to the defendant’s

knowledge of the presence of the contraband.”         Id.   Here, circumstantial evidence

suggests that Peelman had knowledge of the contraband’s presence in the house.

       First, Officer Simpson testified that there was an intense chemical odor, associated

with manufacturing methamphetamine, which emanated from and permeated through the

house. One could infer that Peelman was aware of this odor and thus aware of the

activities conducted inside the house that caused it. Second, although some of the seized

evidence was found in closed cabinets, several pieces of evidence related to

manufacturing methamphetamine were found in plain view, including camping fuel, fuel

additive, pseudoephedrine pills, and cut up lithium batteries. Moreover, the cut up

lithium batteries were found in the same room in which Peelman was hiding after the

police arrived.

       Furthermore, evidence presented at trial showed that Peelman was present at

Walmart at the same time the other three suspects were purchasing the precursors;

Peelman rode to Walmart with VanKuren; and Peelman spoke to McFadden while at

Walmart.     Additionally, several text messages between Peelman, VanKuren, and
                                            14
McFadden discuss going to Walmart to purchase camping fuel and lithium batteries for

Peelman. And finally, Joyce Taulbee had told Officer Schmidt that she had sold the

pseudoephedrine she purchased to someone named “Chris.” Transcript at 93.

          Lastly, we believe the evidence shows that Peelman was capable of exerting

control over the precursors. Much of the evidence was in plain view, and some was

found in the same room in which Peelman was found hiding. Nothing suggests that

Peelman did not have access to the precursors or that he was confined to the back

bedroom in which the police found him. Further, the evidence supports the inference that

some—if not all—of the precursors found at the house were purchased on Peelman’s

behalf.

          Together, this evidence is enough to prove Peelman had constructive possession of

the contraband. Therefore, we conclude that the evidence was sufficient to support

Peelman’s conviction of dealing in methamphetamine.5

                                          III. Peelman’s Sentence

          Finally, Peelman challenges the imposition of his thirty-eight year aggregate

sentence. Specifically, he argues that the trial court abused its discretion by considering

an improper aggravating circumstance and refusing to consider other factors that Peelman

believes are mitigating. He also argues his sentence is inappropriate in light of his

character and the nature of his offense.




          5
           Aside from his argument regarding constructive possession, Peelman offers no separate argument that
there was not sufficient evidence to support his conspiracy conviction and thus has forfeited any argument on that
issue. See Smith v. State, 822 N.E.2d 193, 202-03 (Ind. Ct. App. 2005), trans. denied.
                                                       15
                                 A. Abuse of Discretion

       First, we address Peelman’s contention that the trial court abused its discretion.

[S]entencing decisions rest within the sound discretion of the trial court and are reviewed

on appeal only for an abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490

(Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). The trial court abuses its

discretion if its decision is clearly against the logic and effect of the facts and

circumstances. Id. The trial court may abuse its discretion in sentencing by:

       (1) failing to enter a sentencing statement, (2) entering a sentencing
       statement that explains reasons for imposing the sentence but the record
       does not support the reasons, (3) the sentencing statement omits reasons
       that are clearly supported by the record and advanced for consideration, or
       (4) the reasons given in the sentencing statement are improper as a matter
       of law.

Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012) (citing Anglemyer, 868 N.E.2d at

490-91).

       Peelman contends that the trial court abused its discretion by failing to consider

evidence of mitigating circumstances, including his age (29), his drug addiction, family

support, and the effect his incarceration would have on his young child—all of which

were offered for the trial court’s consideration. However, none of the circumstances

argued by Peelman is significant and clearly supported by the record. With respect to

Peelman’s age and family support, the trial court noted at the sentencing hearing that

Peelman has been a constant offender and drug abuser since the age of seventeen, despite

any support from friends or family. As to any hardship on Peelman’s child, the evidence

indicated that the child’s mother had primary custody of the child and that Peelman was

behind on child support payments. Further, the hardship on Peelman’s child would

                                            16
essentially be the same under any significant amount of incarceration, even if he had

received the minimum twenty year sentence. See Battles v. State, 688 N.E.2d 1230, 1237

(Ind. 1997).

       Second, Peelman argues that it was improper to consider that Peelman’s actions

“brought others into” a criminal enterprise as an aggravator, because agreement to engage

in a criminal venture is a material element of conspiracy. Appellant’s Appendix at 202.

In Anglemyer, the court said that an abuse of discretion requires remand for re-sentencing

only “if we cannot say with confidence that the trial court would have imposed the same

sentence had it properly considered reasons that enjoy support in the record.” 868 N.E.2d

at 491. Here, the trial court also considered Peelman’s prior criminal history and the fact

that he was on probation at the time of the offence as aggravators. We believe these

aggravators are sufficient to support Peelman’s thirty-eight year sentence, even without

considering the challenged aggravator. Thus, we do not find any reversible error here.

                                B. Inappropriate Sentence

       Next, Peelman argues that his sentence is inappropriate in light of his character.

Indiana Appellate Rule 7(B) gives reviewing courts the authority to revise a defendant’s

sentence if, “after due consideration of the trial court’s decision, the Court finds that the

sentence is inappropriate in light of the nature of the offense and the character of the

offender.” It is the defendant’s burden to persuade the reviewing court that the sentence

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

       When considering the character of the offender, the defendant’s criminal history is

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

Peelman has a significant criminal history. Over an eleven year period, he has racked up
                                             17
eleven convictions, eight of which are felonies. Peelman has also had recent arrests in

both Indiana and Kentucky relating to manufacturing methamphetamine. In addition, he

has had a number of probation violations and was on probation at the time of this

particular offense.

        While Peelman’s thirty-eight year aggregate sentence exceeds the advisory

sentence of thirty years for a Class A felony, we note that the maximum sentence is fifty

years. We believe that his lengthy criminal history supports the enhancement in this

case.6 We hold that Peelman has not met his burden of showing that his sentence was

inappropriate.

                                                Conclusion

        Concluding that Peelman’s rights under the Fourth Amendment to the United

States Constitution and Article 1, Section 11 of the Indiana Constitution were not

violated; there was sufficient evidence to sustain his convictions; and Peelman’s sentence

was neither an abuse of discretion nor inappropriate, we affirm.

        Affirmed.

RILEY, J., and KIRSCH, J., concur.




         6
             We note that Peelman makes no argument that the nature of his offense warrants a finding that his
sentence is inappropriate.
                                                     18
