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:                            ATTORNEYS FOR APPELLEE:

ANTHONY S. CHURCHWARD                              GREGORY F. ZOELLER
Leonard, Hammond, Thoma & Terrill                  Attorney General of Indiana
Fort Wayne, Indiana
                                                   JOSEPH Y. HO
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                                                                             Apr 08 2013, 9:22 am

                              IN THE
                    COURT OF APPEALS OF INDIANA

TERRELL VAN CAUSEY,                                )
                                                   )
       Appellant-Defendant,                        )
                                                   )
              vs.                                  )      No. 02A03-1210-CR-425
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE ALLEN SUPERIOR COURT
                         The Honorable Wendy W. Davis, Judge
                             Cause No. 02D06-1201-FB-19



                                         April 8, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

      Terrell Van Causey appeals his convictions and the sentences imposed for two

counts of dealing in cocaine or a narcotic drug, as Class B felonies; one count of

maintaining a common nuisance, as a Class D felony; and one count of possession of

marijuana, hash oil, or hashish, as a Class A misdemeanor, following a bench trial.

Causey presents the following issues for review:

      1.     Whether his convictions for maintaining a common nuisance and
             possession of marijuana, hash oil, or hashish violate the Double
             Jeopardy Clause.

      2.     Whether his sentence is inappropriate in light of the nature of the
             offenses and his character.

      We affirm.

                      FACTS AND PROCEDURAL HISTORY

      In May 2011, a confidential informant (“CI”) for the Fort Wayne Police

Department informed Detective Jamie Masters that she could buy crack from a man that

she knew as “Strike.” Detective Masters later learned that Strike was an alias used by

Causey. On May 23, the CI made a controlled buy of less than one-half gram of cocaine

from Causey. On May 25, the CI again made a controlled buy of less than one-half gram

of cocaine from Causey. Detective Masters then obtained a search warrant for Causey’s

apartment. Detective Masters and other officers executed the search warrant on May 27.

Inside Causey’s apartment they found $480 in cash and a Comcast bill addressed to

Causey, as well as a partly burned marijuana blunt in Causey’s bedroom.

      The State charged Causey with two counts of Class B felony dealing in cocaine,

one count of Class D felony maintaining a common nuisance, and one count of Class A
                                            2
misdemeanor possession of marijuana. After a bench trial, the trial court found Causey

guilty on all counts. The court entered judgment of conviction accordingly and imposed

concurrent sentences of fourteen years for each count of dealing in cocaine, with ten

years executed and four years suspended to probation; three years for maintaining a

common nuisance; and one year for possession of marijuana, for an aggregate sentence of

fourteen years. Causey now appeals.

                            DISCUSSION AND DECISION

                              Issue One: Double Jeopardy

       Causey contends that the trial court violated the prohibition against double

jeopardy when it entered judgment of conviction on both maintaining a common

nuisance, as a Class D felony, and possession of marijuana, as a Class A misdemeanor.

Article I, Section 14 of the Indiana Constitution provides that “[n]o person shall be put in

jeopardy twice for the same offense.” Our supreme court has explained that two offenses

are the same offense if the statutory elements of the crime are the same or the actual

evidence used to convict the defendant of two offenses is the same. Richardson v. State,

717 N.E.2d 32, 49-50 (Ind. 1999). The statutory elements analysis uses the test set forth

by the United States Supreme Court in Blockberger v. United States, 284 U.S. 299

(1932). Goldsberry v. State, 821 N.E.2d 447, 459 (Ind. Ct. App. 2005) (citation omitted).

Causey does not argue that the statutory elements test applies. We therefore turn to his

argument under the actual evidence test.

       Under the actual evidence test, “the actual evidence presented at trial is examined

to determine whether each challenged offense was established by separate and distinct


                                             3
facts.” Richardson, 717 N.E.2d at 53. To establish a double jeopardy violation, “a

defendant must demonstrate a reasonable possibility that the evidentiary facts used by the

fact-finder to establish the essential elements of one offense may also have been used to

establish the essential elements of a second challenged offense.” Id. However, “the

Indiana Double Jeopardy Clause is not violated when the evidentiary facts establishing

the essential elements of one offense also establish only one or even several, but not all,

of the essential elements of a second offense.” Spivey v. State, 761 N.E.2d 831, 833

(Ind. 2002) (citations omitted).

       Application of the actual evidence test requires the court to identify the essential

elements of each of the challenged crimes and to evaluate the evidence from the fact-

finder’s perspective. Rexroat v. State, 966 N.E.2d 165, 169 (Ind. Ct. App. 2012) (citation

omitted), trans. denied. “In determining the facts used by the fact-finder to establish the

elements of each offense, it is appropriate to consider the charging information, jury

instructions, and arguments of counsel.” Id. (internal quotation marks omitted).

       Here, Causey was convicted of both maintaining a common nuisance, as a Class D

felony, and possession of marijuana, as a Class A misdemeanor. To prove the offense of

possession of marijuana, as a Class A misdemeanor, the State was required to show that

Causey knowingly or intentionally possessed marijuana. See Ind. Code § 35-48-4-11(1).

And to prove the offense of maintaining a common nuisance, as a Class D felony, the

State was required to show that Causey knowingly or intentionally maintained a building

or structure and that that building or structure was used one or more times for unlawfully




                                            4
keeping, selling, or delivering controlled substances or items of drug paraphernalia. See

Ind. Code § 35-48-4-11.

       Causey contends that the trial court used the same evidence to convict him of both

maintaining a common nuisance and possession of marijuana. In particular, he argues

that the State charged that he maintained a common nuisance “on or about May 27,

2011,” that the only evidence of keeping, selling, or delivering a controlled substance on

that date was the marijuana, and that same evidence (the marijuana blunt) was used to

convict him of both offenses in violation of the Double Jeopardy Clause. There are no

jury instructions to review for this bench trial, and the State waived closing argument.

Thus, we consider the charging information and the evidence admitted at trial in

resolving this issue.

       We initially observe that, “[w]hen an information alleges that an offense occurred

‘on or about’ a certain date, the State is not limited to presenting evidence of events that

occurred on that particular date when time is not an element of the offense.” Neff v.

State, 915 N.E.2d 1026, 1032 (Ind. Ct. App. 2009), reaff’d on reh’g, 922 N.E.2d 44 Ind.

Ct. App. 2010), trans. denied.      Additionally, Indiana Code Section 35-34-1-2(a)(5)

provides only that an information must state “the date of the offense with sufficient

particularity to show that the offense was committed within the period of limitations

applicable to that offense . . . .” In the present case, time is not an element of either

maintaining a common nuisance or possession of marijuana. Causey does not argue that

the charges were filed outside the period of limitations. Thus, the trial court could have




                                             5
used Causey’s sale of cocaine on May 23 and May 25 to support the conviction for

maintaining a common nuisance.

       Still, Causey argues that there is a reasonable possibility that the trial court used

the possession of marijuana to support the common nuisance conviction. But showing a

“‘reasonable possibility’ that the trial court used the same facts to reach two convictions

requires substantially more than a logical possibility.” Lee v. State, 892 N.E.2d 1231,

1236 (Ind. 2008). “Rather, ‘reasonable possibility’ turns on a practical assessment of

whether the [trier of fact] may have latched on to exactly the same facts for both

convictions.”   Id.   (citation omitted).   “[T]he possibility must be reasonable, not

speculative or remote.” Griffin v. State, 717 N.E.2d 73, 89 (Ind. 1999), cert. denied, 530

U.S. 1247 (2000). Further, we presume that the trial court is aware of and knows the law.

See Conley v. State, 972 N.E.2d 864, 873 (Ind. 2012). Causey has not shown more than

a speculative or remote possibility that the trial court used the same evidence to convict

him of both maintaining a common nuisance and possession of marijuana. Thus, his

double jeopardy claim must fail.

                            Issue Two: Appellate Rule 7(B)

       Causey also contends that his sentence is inappropriate in light of the nature of the

offenses and his character. Although a trial court may have acted within its lawful

discretion in determining a sentence, Article VII, Sections 4 and 6 of the Indiana

Constitution “authorize [] independent appellate review and revision of a sentence

imposed by the trial court.” Roush, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007) (alteration

original). This appellate authority is implemented through Indiana Appellate Rule 7(B).


                                             6
Id.   Revision of a sentence under Appellate Rule 7(B) requires the appellant to

demonstrate that his sentence is inappropriate in light of the nature of his offense and his

character. See App. R. 7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App.

2007). We assess the trial court’s recognition or non-recognition of aggravators and

mitigators as an initial guide to determining whether the sentence imposed was

inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006). However, “a

defendant must persuade the appellate court that his or her sentence has met th[e]

inappropriateness standard of review.” Roush, 875 N.E.2d at 812 (alteration original).

       The Indiana Supreme Court has also stated that “sentencing is principally a

discretionary function in which the trial court’s judgment should receive considerable

deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). Indiana’s flexible

sentencing scheme allows trial courts to tailor an appropriate sentence to the

circumstances presented. See id. at 1224. The principal role of appellate review is to

attempt to “leaven the outliers.”      Id. at 1225.   Whether we regard a sentence as

inappropriate at the end of the day turns on “our sense of the culpability of the defendant,

the severity of the crime, the damage done to others, and myriad other facts that come to

light in a given case.” Id. at 1224.

       Causey was convicted of two counts of dealing in cocaine, as Class B felonies, for

which he was sentenced to fourteen years on each count; one count of maintaining a

common nuisance, as a Class D felony, for which he was sentenced to three years; and

one count of possession of marijuana, as a Class A misdemeanor, for which he was

sentenced to one year. The statutory sentencing range for a Class B felony is between six


                                             7
and twenty years with an advisory sentence of ten years. Ind. Code § 35-50-2-5. The

range for a Class D felony is between six months and three years with an advisory

sentence of one and one-half years. Ind. Code § 35-50-2-7. And the range for a Class A

misdemeanor is less than or equal to one year. Ind. Code § 35-50-3-2. Causey’s

aggregate sentence is fourteen years, with ten years executed.

       We first consider whether Causey’s sentence is inappropriate in light of the nature

of the offenses. Again, Causey was convicted of two counts of dealing in cocaine, as

Class B felonies, for selling cocaine to a CI on two separate dates from the apartment

where he lived. Causey delivered less than one-half gram of cocaine in each transaction.

As discussed above, his conviction for maintaining a common nuisance is based on those

sales. And, when police executed a search warrant, they found $480 in cash and a partly

burnt marijuana blunt in the bedroom. Causey points to the facts that he sold only a small

amount of cocaine in each sale and that police found no drugs besides the marijuana blunt

in his apartment. But we are not limited to considering the nature of the offenses.

       We also consider Causey’s character. The trial court cited his extensive criminal

history as an aggravator. Specifically, Causey had been adjudicated a delinquent for

committing Class D felony sexual battery, if committed by an adult. As an adult, he had

accumulated ten misdemeanor convictions:           three convictions for resisting law

enforcement; three convictions for criminal trespass; two convictions for never receiving

a license; one conviction for battery; and one conviction for possession of marijuana,

hash oil, or hashish. He also had two felony convictions for possession of cocaine or a

narcotic drug and attempted burglary. He has had three prior suspended sentences, one


                                             8
electronic monitoring placement, and two revocations of probation. And despite leniency

in prior sentencing, Causey has continued to flout the law.

        Still, Causey insists that the trial court accorded “too much weight” to his criminal

history. But a trial court “no longer has any obligation to ‘weigh’ aggravating and

mitigating factors against each other” and thus “a trial court can not now be said to have

abused its discretion in failing to ‘properly weigh’ such factors.”                  Anglemyer v. State,

868 N.E.2d 482, 491 (Ind. 2007), clarified in part on other grounds, 875 N.E.2d 218 (Ind.

2007). He also asserts that the trial court should have considered mitigators but found

none. In particular, he points to his mother’s testimony about the “interactions between

[him] and his family, specifically his son[,]” and her “desire that [he] be given a chance

by the trial court to turn his life around in the same manner that she had.” Appellant’s

Brief at 12. But Causey has not shown that the subject of his mother’s testimony

constitutes a significant mitigator.1 See Anglemyer, 868 N.E.2d at 493 (“An allegation

that the trial court failed to identify or find a mitigating factor requires the defendant to

establish that the mitigating evidence is both significant and clearly supported by the

record.”) Considering Causey’s character in conjunction with the nature of the offenses,

we cannot say that his fourteen-year aggregate sentence with ten years executed, for three

felonies and a misdemeanor, is inappropriate.

        Affirmed.

BAILEY, J., and BARNES, J., concur.



        1
           To the extent Causey is arguing that the trial court abused its discretion in failing to recognize a
significant mitigator, he waived that issue for lack of cogent argument. See Ind. Appellate Rule
46(A)(8)(a).
                                                      9
