Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                           FILED
any court except for the purpose of                          Aug 15 2012, 8:51 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                        CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
                                                                         tax court




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

BRUCE W. GRAHAM                                   GREGORY F. ZOELLER
Graham Law Firm P.C.                              Attorney General of Indiana
Lafayette, Indiana
                                                  JOSEPH Y. HO
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

TONDALAY BROWN,                                   )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )       No. 79A02-1111-CR-1038
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                    APPEAL FROM THE TIPPECANOE CIRCUIT COURT
                          The Honorable Donald L. Daniel, Judge
                              Cause No. 79C01-1108-FA-15



                                        August 15, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

       Tondalay Brown appeals her convictions for possession of cocaine with intent to

deliver, as a Class A felony, and possession of marijuana, as a Class A misdemeanor,

following a jury trial. Brown presents three issues for our review:

       1.     Whether the State presented sufficient evidence to support her
              conviction for possession of cocaine with intent to deliver.

       2.     Whether the trial court abused its discretion when it sentenced her.

       3.     Whether her sentence is inappropriate in light of the nature of the
              offenses and her character.

       We affirm.

                      FACTS AND PROCEDURAL HISTORY

       On July 26, 2011, Brown was driving a car owned by her boyfriend’s cousin, and

her boyfriend, Ronald Colbert, was riding in the car as a passenger. Brown was driving

on I-65 in Tippecanoe County when Officer Ryan French with the Lafayette Police

Department observed her speeding and swerving. Officer French, who had a K-9 unit

with him, initiated a traffic stop. Colbert did not have a driver’s license, but produced a

birth certificate and a social security card. Using that identifying information, and after

an assisting officer arrived at the scene, Officer French determined that Minnesota had

issued a warrant for Colbert’s arrest and that Colbert had been charged with dealing in

cocaine in Delaware County and was out on bond.

       Officer French asked Brown and Colbert to exit the car, and they complied.

Officer French then conducted a “K-9 sniff” of the exterior of the car. Transcript at 20.

In the course of that “sniff” the police dog “alerted to the odor of narcotics” coming from


                                             2
inside the car. Id. at 21. That alert provided probable cause to Officer French to search

the interior of the car, which he proceeded to do. Immediately prior to the search, Brown

informed another police officer at the scene that there was marijuana belonging to her

located inside the car. Officer French found marijuana located in a tray below the car

radio. Officer French then removed the “insert” located inside the center console of the

car and found what was later determined to be 16.24 grams of crack cocaine. Id. at 24.

Also during the course of the search, Officer French found several personal items

belonging to Brown in the car, including receipts, medical bills, electric bills, and a

federal housing application.

        The State charged Brown with possession of cocaine with intent to deliver, as a

Class A felony; possession of cocaine, as a Class C felony; maintaining a common

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

Following trial, a jury found Brown guilty as charged. The trial court entered judgment

and sentence for possession of cocaine with intent to deliver, as a Class A felony, and

possession of marijuana, as a Class A misdemeanor.1 The trial court sentenced Brown to

concurrent terms of twenty-five years and one year, respectively, for an aggregate

sentence of twenty-five years with fifteen years executed. This appeal ensued.

                                DISCUSSION AND DECISION

                            Issue One: Sufficiency of the Evidence

        Brown first contends that the State did not present sufficient evidence to support

her conviction for possession of cocaine with intent to deliver. When the sufficiency of

        1
           Our review of the record does not reveal that the trial court entered judgment of conviction on
all four charges. At sentencing, however, the trial court “merged” the Class C and Class D felony counts
with the other two counts. Appellant’s App. at 10; see Green v. State, 856 N.E.2d 703, 704 (Ind. 2006).
                                                    3
the evidence to support a conviction is challenged, we neither reweigh the evidence nor

judge the credibility of the witnesses, and we affirm if there is substantial evidence of

probative value supporting each element of the crime from which a reasonable trier of

fact could have found the defendant guilty beyond a reasonable doubt. Wright v. State,

828 N.E.2d 904, 905-06 (Ind. 2005). It is the job of the fact-finder to determine whether

the evidence in a particular case sufficiently proves each element of an offense, and we

consider conflicting evidence most favorably to the trial court’s ruling. Id. at 906.

        To prove possession of cocaine with intent to deliver, as a Class A felony, the

State had to show that Brown knowingly or intentionally possessed with intent to deliver

cocaine in an amount weighing three grams or more. See Ind. Code § 35-48-4-1. On

appeal, Brown contends that the State presented insufficient evidence to prove the

possession and intent to deliver elements of the offense. We address each contention in

turn.

                                        Possession

        Possession of contraband may be either actual or constructive. See Henderson v.

State, 715 N.E.2d 833, 835 (Ind. 1999). As our Supreme Court has explained:

        Actual possession occurs when a person has direct physical control over the
        item. Walker v. State, 631 N.E.2d 1, 2 (Ind. Ct. App. 1994). Constructive
        possession occurs when somebody has “the intent and capability to
        maintain dominion and control over the item.” Id. We suggested in
        Woods[ v. State, 471 N.E.2d 691, 694 (Ind. 1984),] that knowledge is a key
        element in proving intent:

              When constructive possession is asserted, the State must
              demonstrate the defendant’s knowledge of the contraband.
              This knowledge may be inferred from either the exclusive
              dominion and control over the premise[s] containing the
              contraband or, if the control is non-exclusive, evidence of
                                             4
                 additional circumstances pointing to the                    defendant’s
                 knowledge of the presence of the contraband.

       ([C]itations omitted). Proof of dominion and control of contraband has
       been found through a variety of means: (1) incriminating statements by the
       defendant, (2) attempted flight or furtive gestures, (3) location of
       substances like drugs in settings that suggest manufacturing, (4) proximity
       of the contraband to the defendant, (5) location of the contraband within the
       defendant’s plain view, and (6) the mingling of the contraband with other
       items owned by the defendant. Carnes v. State, 480 N.E.2d 581, 586 (Ind.
       Ct. App. 1985).

Id. at 835-36.

       Here, again, police found 16.24 grams of crack cocaine located beneath an insert

inside the center console of the car Brown had been driving. Brown contends that the

State cannot prove either actual or constructive possession of the cocaine because: she

did not own the car; Colbert was riding as a passenger in the car; and the cocaine was not

in plain view. We cannot agree.

       The State presented evidence that several of Brown’s personal belongings were

found in different parts of the car, supporting a reasonable inference that she used the car

as her own despite the fact that someone else owned the car. In particular, the State

presented evidence that the following items belonging to Brown were found in the car:

marijuana, found in a small, open cubby “underneath the radio” and “in front of the

[gear] shifter[;]” and various documents found in the glove compartment, including a

pawn shop ticket, a utility bill, and a public housing application. 2 Transcript at 23. In

addition, police found the crack cocaine inside the center console, which was close in

proximity to Brown’s marijuana, as well as easily accessible by Brown while she was



       2
           Police also found a “big bag of women’s clothing” in the trunk of the car. Transcript at 38.
                                                     5
driving the car. We hold that the evidence is sufficient to prove Brown’s constructive

possession of the crack cocaine. See, e.g., Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999)

(holding evidence sufficient to show constructive possession of contraband found in

trunk of car where defendant did not own car, but had a key to the trunk and had several

personal belongings throughout the car).

                                     Intent to Deliver

       Brown next contends that the State presented insufficient evidence to prove that

she had intent to deliver the crack cocaine found in the car. As we stated in Love v.

State, 741 N.E.2d 789, 792 (Ind. Ct. App. 2001),

       [b]ecause intent is a mental state, triers of fact generally must resort to the
       reasonable inferences arising from the surrounding circumstances to
       determine whether the requisite intent exists. Circumstantial evidence
       showing possession with intent to deliver may support a conviction.
       Possessing a large amount of a narcotic substance is circumstantial
       evidence of intent to deliver. The more narcotics a person possesses, the
       stronger the inference that he intended to deliver it and not consume it
       personally.

(Internal citations omitted).

       Here, the State presented evidence that possession of crack cocaine in an amount

more than three and a half grams is indicative of dealing. Again, the crack cocaine found

in the center console of the car Brown was driving weighed 16.24 grams. And the State

presented evidence that the way the crack cocaine was packaged in this case is indicative

of dealing, as well. Brown’s contention on appeal amounts to a request that we reweigh

the evidence, which we will not do. The State presented sufficient evidence to support a

reasonable inference that Brown had the intent to deliver the cocaine that she possessed.



                                             6
And the evidence is sufficient to support Brown’s conviction for possession of cocaine

with intent to deliver.

                      Issue Two: Abuse of Discretion in Sentencing

       Brown contends that the trial court abused its discretion when it sentenced her.

Sentencing 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 other grounds on reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of

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

circumstances before the court, or the reasonable, probable, and actual deductions to be

drawn therefrom. Id.

       One way in which a trial court may abuse its discretion is failing to enter a
       sentencing statement at all. Other examples include entering a sentencing
       statement that explains reasons for imposing a sentence—including a
       finding of aggravating and mitigating factors if any—but the record does
       not support the reasons, or the sentencing statement omits reasons that are
       clearly supported by the record and advanced for consideration, or the
       reasons given are improper as a matter of law . . . .

              [However, b]ecause the trial court no longer has any obligation to
       “weigh” aggravating and mitigating factors against each other when
       imposing a sentence, . . . a trial court can not now be said to have abused its
       discretion in failing to “properly weigh” such factors.

Id. at 490-91.

       Here, the trial court’s sentencing statement reads as follows:

       the court now finds that a mitigating circumstance is that Ms. Brown is now
       pregnant and that she has one other child that is dependent upon her,
       although the court notes that that child has been in the custody of its [sic]
       father and that Ms. Brown has not been active in supporting that child. A
       second mitigating circumstance is her relatively low score on the Indiana
       Risk assessment evaluation and that she has a low to moderate risk [of] re-
       offending. An aggravating circumstance is the criminal history. The court
                                             7
       notes one prior misdemeanor conviction and several negative contacts with
       law enforcement. That’s not a big aggravator. In fact, it’s a very low
       weight aggravator. A second aggravating circumstance is [Brown’s]
       history of illegal drug use, a third aggravating circumstance is that [Ms.
       Brown has] not taken responsibility for [her] actions.

Transcript at 188.

       Brown maintains that the trial court abused its discretion when it identified her

alleged failure to take responsibility for her actions as an aggravating circumstance.

Specifically, Brown contends that she is innocent, and that, in effect, this aggravator

punishes her for consistently maintaining her innocence.       Our review of the record

supports Brown’s conclusion that there is no evidence independent of her assertion of

innocence on which the trial court could base this aggravator. As such, we agree with

Brown that this aggravator is invalid. However, when a court has relied on valid and

invalid aggravators the standard of review is whether we can say with confidence that,

after balancing the valid aggravators and mitigators, the sentence enhancement should be

affirmed. See, e.g., Trusley v. State, 829 N.E.2d 923, 927 (Ind. 2005).

       Here, while the trial court stated that Brown’s criminal history had “very low

weight” as an aggravator, it also gave mitigating weight to the fact that Brown has a child

despite also noting that she “has not been active in supporting that child.” Transcript at

188. When we exclude from consideration the invalid aggravator of Brown’s alleged

failure to take responsibility for her actions, and we consider the mitigators and valid

aggravators, we can say with confidence that the trial court would have imposed the same

sentence even without the improper aggravator. The trial court imposed a twenty-five

year sentence, five years below the advisory sentence for a Class A felony, with ten years


                                            8
suspended to probation. The trial court did not abuse its discretion when it sentenced

Brown.

                         Issue Three: Inappropriate Sentence

       Finally, Brown contends that her sentence is inappropriate in light of the nature of

the offenses and her 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 v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007)

(alteration original). This appellate authority is implemented through Indiana Appellate

Rule 7(B). 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 offenses 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 more recently 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


                                             9
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.

       With respect to the nature of the offenses, Brown contends only that “[t]here was

nothing particularly aggravating or mitigating regarding the nature of the offense[s].”

Brief of Appellant at 20. Thus, Brown does not advance any argument to support a

reduction in her sentence on that basis. Brown was convicted of possessing with intent to

deliver more than five times the amount of crack cocaine necessary to enhance the

offense to a Class A felony. We hold that Brown’s sentence is not inappropriate in light

of the nature of the offenses.

       Brown contends that her sentence is inappropriate in light of her character. She

points out that her criminal history consists of a single misdemeanor offense, which

occurred “years before the instant offense.” Id. And she states that she was regularly

employed and studied nursing in recent years. In addition, Brown points out that her

“substance abuse background was minimal” and that she “cooperated with the authorities

after her arrest.” Id. But the State emphasizes Brown’s ongoing relationship with

Colbert, a known cocaine dealer, who was the father of her unborn child at the time of

sentencing. And despite a history of marijuana abuse, Brown has never sought substance

abuse treatment. We also note that Brown was pregnant at the time of the instant

offenses and was not active in supporting another child dependent, which reflects poorly




                                            10
on her character. We hold that Brown’s sentence is not inappropriate in light of her

character.

       Affirmed.

KIRSCH, J., and MAY, J., concur.




                                        11
