MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                         Feb 25 2019, 9:25 am
court except for the purpose of establishing
                                                                       CLERK
the defense of res judicata, collateral                            Indiana Supreme Court
                                                                      Court of Appeals
estoppel, or the law of the case.                                       and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
K. Aaron Heifner                                         Curtis T. Hill, Jr.
Heifner Law, Inc.                                        Attorney General of Indiana
Anderson, Indiana
                                                         Matthew B. MacKenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Shian S. Mendenhall,                                     February 25, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1613
        v.                                               Appeal from the
                                                         Madison Circuit Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Thomas Newman, Jr., Judge
                                                         Trial Court Cause No.
                                                         48C03-1711-F3-2909



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1613 | February 25, 2019          Page 1 of 13
[1]   Shian S. Mendenhall (“Mendenhall”) was convicted after a jury trial of battery

      by means of a deadly weapon,1 a Level 5 felony, and criminal confinement2 as a

      Level 3 felony and was sentenced to concurrent terms of six years for her

      battery conviction and sixteen years for her criminal confinement conviction.

      On appeal, Mendenhall raises the following restated issues:


                 I.        Whether the trial court abused its discretion when it
                           admitted Mendenhall’s red purse into evidence; and


                 II.       Whether the trial court abused its discretion in sentencing
                           Mendenhall by declining to find Mendenhall’s mental
                           health to be a mitigating factor.


[2]   We affirm.


                                       Facts and Procedural History
[3]   On November 22, 2017, Adam Richardson (“Adam”) returned home from

      work and discovered that Mendenhall, who had been a foster child cared for by

      Richardson’s family for several months in 2012-2013, had entered his home

      without permission. Tr. Vol. I at 212-13; Tr. Vol. II at 5-6. Although

      Mendenhall was not invited, Adam and his wife, Mindi Richardson (“Mindi”)

      (together, “the Richardsons”) welcomed her into the home. Tr. Vol. I at 214.

      Mendenhall told the Richardsons that she was looking for help finding a job,




      1
          See Ind. Code § 35-42-2-1(c)(1), (g)(2).
      2
          See Ind. Code § 35-42-3-3(a), (b)(2)(A).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1613 | February 25, 2019   Page 2 of 13
      wanted a place to stay, and wanted to borrow a car. Id. The Richardsons

      allowed Mendenhall to spend the night with them and invited her to join them

      for Thanksgiving the next day. Id. at 215. At the time Mendenhall entered the

      Richardsons’ house, she had a red purse with her. Id. at 214; Tr. Vol. II at 8.


[4]   The next day, the Richardsons prepared food in the kitchen before going out for

      the Thanksgiving meal. M.R., the Richardsons’ daughter, observed

      Mendenhall go into the kitchen, hunch over her bag, and put something inside

      the bag. Tr. Vol. II at 32. The Richardsons and Mendenhall went to Mindi’s

      parents’ home to eat the Thanksgiving meal, and Mendenhall took her red

      purse with her. Id. at 10. After eating, the Richardsons drove Mendenhall to

      her grandmother’s home because there was no room for her to stay at their

      home. Tr. Vol. I at 215, 217; Tr. Vol. II at 10.


[5]   When the Richardsons and Mendenhall arrived at the home where

      Mendenhall’s grandmother, Judy Norris (“Judy”), lived, Mendenhall insisted

      that only Mindi accompany her inside the house and wanted Mindi to explain

      to Judy why Mendenhall did not spend Thanksgiving with Judy. Tr. Vol. I at

      218, 220; Tr. Vol. II at 15. Although Mindi agreed to go inside the house alone

      with Mendenhall, Adam waited outside the door for her. Tr. Vol. I at 220; Tr.

      Vol. II at 16. Mendenhall had her red purse with her when she entered the

      home with Mindi, and after they were inside the house, Mendenhall shut and

      locked the door behind them. Tr. Vol. II at 15-16. Mendenhall persuaded

      Mindi to enter the main area of the house first, and “[a]s soon as [Mindi] turned

      [her] back the next thing [she] knew [she] felt a blade sharp [sic] pulling back at

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1613 | February 25, 2019   Page 3 of 13
      [her] throat.” Tr. Vol. I at 222. Mendenhall said nothing as she put the knife to

      Mindi’s throat, and Mindi grabbed the knife with both hands and dropped to

      her knees on the floor. Id. at 222. Mindi was able to gain control of the knife

      from Mendenhall while she yelled for Adam, who kicked open the locked door,

      allowing Mindi to escape. Tr. Vol. I at 223-24; Tr. Vol. II at 16-18. Mindi,

      Adam, and M.R. ran back to their truck, locked the doors, and called the

      police. Tr. Vol. I at 225; Tr. Vol. II at 19. Once in the truck, Mindi attempted to

      stop the blood coming from a cut in her throat and cuts on her hands. Tr. Vol. I

      at 225. Both Adam and Mindi recognized the knife that Mindi had wrestled

      away from Mendenhall as one of their own kitchen knives. Id. at 231; Tr. Vol.

      II at 22.


[6]   Mindi was taken to the hospital for treatment of the cuts on her throat and

      hands. Tr. Vol. I at 229; Tr. Vol. II at 39. Deputy Tyler McKean (“Deputy

      McKean”) of the Madison County Sheriff’s Department spoke with Mindi at

      the hospital and learned that Mendenhall had a red purse, which may have

      been used to transport the knife, that was still at the home where Judy lived.

      Tr. Vol. II at 67. Deputy McKean went back to the residence and spoke with

      Mendenhall’s uncle, Anthony Norris (“Anthony”), who was the owner of the

      home, and Anthony signed a consent to search form. Id.; State’s Ex. 28.

      Anthony led Deputy McKean to the back bedroom where the purse was

      located, and Deputy McKean collected it and placed it into evidence. Tr. Vol. II

      at 67, 72; State’s Ex. 29.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1613 | February 25, 2019   Page 4 of 13
[7]   On November 27, 2017, the State charged Mendenhall with one count of

      battery by means of a deadly weapon, a Level 5 felony, and one count of

      criminal confinement, a Level 3 felony. Appellant’s App. Vol. 2 at 16-19. On

      May 15, 2018, a hearing was conducted to determine whether Mendenhall was

      competent to stand trial. At the hearing, Dr. Ned Masbaum (“Dr. Masbaum”)

      testified that he diagnosed Mendenhall with “Major Depressive Disorder,

      Depressive Disorder, Conduct Disorder, Suicidal Idealization and Behavior”

      and gave a second diagnosis of “probable Borderline Personality Disorder.” Tr.

      Vol. I at 18. He further testified that she was competent to understand the

      proceedings and to assist in her defense. Id. at 18-19. Dr. Frank Krause (“Dr.

      Krause”) also testified that his “recommendation was that [Mendenhall] was

      competent to stand trial,” and noted that Mendenhall did not appear to be

      acting under any type of delusion or psychosis and was not taking any

      medication. Id. at 24-25.


[8]   On May 20, 2018, the night before the jury trial was to begin, Mendenhall filed

      a motion to suppress the admission of her red purse into evidence at trial.

      Appellant’s App. Vol. 2 at 31-32. In her written motion, Mendenhall claimed that

      Anthony did not have the authority to allow the search of the residence and

      seizure of her purse. Id. On May 21, 2018, before the trial commenced, the

      trial court allowed argument on Mendenhall’s motion, and at that time,

      Mendenhall argued that there was nothing incriminating inside the purse, but

      that “the bag itself is the incriminating thing” because she was seen with it in

      her possession on the day of the crimes. Tr. Vol. I at 32. Mendenhall stated that


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1613 | February 25, 2019   Page 5 of 13
      she did not object to witnesses testifying about her possession of the purse but

      that she thought that “[the State] should be precluded from admitting the purse

      . . . as an exhibit.” Id. at 33. The State argued that Anthony, the homeowner,

      had signed a consent to search form, that they separately obtained a search

      warrant for the contents of the purse, which revealed nothing of relevance, and

      that the bag was only being admitted as a physical exhibit. Id. at 34. The trial

      court denied the motion to suppress, and the purse was admitted at trial. Id. at

      35; Tr. Vol. II at 33.


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

      Vol. II at 243. At sentencing, Mendenhall requested that the trial court take

      judicial notice of the competency hearing diagnosis by Dr. Masbaum, who had

      concluded that Mendenhall might have borderline personality disorder, as a

      mitigating factor. Tr. Vol. III at 2. The trial court found as aggravating

      circumstances Mendenhall’s criminal history, the fact that she violated

      probation when she committed the present crimes, the nature of the crime,

      Mendenhall’s commission of prior violent acts, her violation of a position of

      trust, and her unremorseful demeanor. Id. at 14. The trial court found no

      mitigating circumstances and sentenced Mendenhall to an aggregate sentence of

      sixteen years in the Department of Correction. Id. Mendenhall now appeals.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1613 | February 25, 2019   Page 6 of 13
                                      Discussion and Decision

                                     I.       Admission of Evidence
[10]   Mendenhall argues that the trial court abused its discretion when it admitted

       her red purse into evidence at trial. Mendenhall first challenged the admission

       of evidence through a motion to suppress but now appeals following a

       completed trial. Therefore, the issue is appropriately framed as whether the

       trial court abused its discretion by admitting the evidence at trial. Sugg v. State,

       991 N.E.2d 601, 606 (Ind. Ct. App. 2013), trans. denied. The admission and

       exclusion of evidence falls within the sound discretion of the trial court, and we

       review the admission of evidence only for abuse of discretion. Id. An abuse of

       discretion occurs where the decision is clearly against the logic and effect of the

       facts and circumstances. Id. at 606-07. Even if the trial court’s decision was an

       abuse of discretion, we will not reverse if the admission of evidence constituted

       harmless error. Id. at 607. Error is harmless if it does not affect the substantial

       rights of the defendant. Id.


[11]   The Fourth Amendment to the United States Constitution protects an

       individual’s privacy and possessory interests by prohibiting unreasonable

       searches and seizures. Veerkamp v. State, 7 N.E.3d 390, 394 (Ind. Ct. App.

       2014), trans. denied. Generally, a search warrant is a prerequisite to a

       constitutionally proper search and seizure. Sugg, 991 N.E.2d at 607. When a

       search is conducted without a warrant, the State has the burden of proving that

       an exception to the warrant requirement existed at the time of the search.

       Holloway v. State, 69 N.E.3d 924, 930 (Ind. Ct. App. 2017), trans. denied. A
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1613 | February 25, 2019   Page 7 of 13
       warrantless search based on lawful consent is consistent with both the Indiana

       and United States Constitutions. Browder v. State, 77 N.E.3d 1209, 1216 (Ind.

       Ct. App. 2017), trans. denied. “‘A consent to search is valid except where it is

       procured by fraud, duress, fear, intimidation, or where it is merely a submission

       to the supremacy of the law.’” Id. at 1217 (quoting Navarro v. State, 855 N.E.2d

       671, 675 (Ind. Ct. App. 2006)). Whether consent to search was voluntary is a

       question of fact determined from the totality of the circumstances. Id.


[12]   Here, although Mendenhall appears to argue that the admission of her red

       purse was an abuse of discretion because the search violated the Fourth

       Amendment, she does not provide this court with a proper basis to determine

       her contention. The only Fourth Amendment law she cites is in reference to

       inventory searches, which did not occur in the present case. Appellant’s Br. at

       12-13. At trial, Mendenhall objected to the admission of the red purse and

       stated she was objecting based on the same reasoning as her motion to suppress,

       which was that the search exceeded the scope of the consent. Tr. Vol. II at 33;

       Appellant’s App. Vol. 2 at 31-32. Here, Mendenhall makes no argument that the

       consent was not valid nor cites any law regarding consent searches. Therefore,

       Mendenhall has waived this issue for failure to make a cogent argument or to

       cite to legal authority as required by Indiana Appellate Rule 46(A)(8). Burnell v.

       State, 110 N.E.3d 1167, 1171 (Ind. Ct. App. 2018).


[13]   Waiver notwithstanding, the purse was properly admitted because it was

       obtained through a valid consent search. During his investigation, Deputy

       McKean learned that Mendenhall had a red purse in her possession on the day

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1613 | February 25, 2019   Page 8 of 13
       that the crimes occurred and that the red purse may have been used by

       Mendenhall to transport a kitchen knife belonging to the Richardsons’ from

       their house. Tr. Vol. II at 67. Deputy McKean returned to the house where the

       crime occurred and spoke with Anthony, who was the owner of the house. Id.

       Anthony consented to a search of the house and took Deputy McKean to a

       back bedroom where Mendenhall’s red purse was located. Id. at 67, 72. The

       record showed that not only did Anthony sign a consent to search form, he

       accompanied Deputy McKean to the bedroom where the purse was located, did

       not oppose the search, and actively assisted in the search. Id. at 67, 72; State’s

       Ex. 28. We, therefore, conclude that Anthony’s consent was voluntary, and the

       purse was discovered through a valid consent search. Browder, 77 N.E.3d at

       1216-17. The seizure of the red purse did not violate the Fourth Amendment,

       and the trial court did not abuse its discretion in admitting it into evidence at

       trial.


                                               II.      Sentencing
[14]   Mendenhall argues that the trial court abused its discretion when it sentenced

       her because it declined to find her mental health to be a mitigating

       circumstance. Sentencing decisions are within the sound discretion of the trial

       court. Weedman v. State, 21 N.E.3d 873, 892 (Ind. Ct. App. 2014) (citing

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

       218), trans. denied. However, a trial court may be found to have abused its

       sentencing discretion in a number of ways, including: (1) failing to enter a

       sentencing statement at all; (2) entering a sentencing statement that explains

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1613 | February 25, 2019   Page 9 of 13
       reasons for imposing a sentence where the record does not support the reasons;

       (3) entering a sentencing statement that omits reasons that are clearly supported

       by the record and advanced for consideration; and (4) entering a sentencing

       statement in which the reasons given are improper as a matter of law.

       Anglemyer, 868 N.E.2d at 490-91. The reasons or omission of reasons given for

       choosing a sentence are reviewable on appeal for an abuse of discretion.

       Weedman, 21 N.E.3d at 893. The weight given to particular aggravators or

       mitigators is not subject to appellate review. Id.


[15]   The determination of mitigating circumstances is within the discretion of the

       trial court. Townsend v. State, 45 N.E.3d 821, 830 (Ind. Ct. App. 2015), trans.

       denied. The trial court is not obligated to accept the defendant’s argument as to

       what constitutes a mitigating factor, and a trial court is not required to give the

       same weight to proffered mitigating factors as does a defendant. Id. An

       allegation that a trial court abused its discretion by failing to find a mitigating

       factor requires an appellant to establish that the mitigating evidence is

       significant and clearly supported by the record. Id. at 830-31. “Mental illness is

       not necessarily a significant mitigating factor; ‘rather, [it] is a mitigating factor

       to be used in certain circumstances, such as when the evidence demonstrates

       longstanding mental health issues or when the jury finds that a defendant is

       mentally ill.’” Id. at 831 (quoting Ousley v. State, 807 N.E.2d 758, 762 (Ind. Ct.

       App. 2004).


[16]   Mendenhall contends that it was an abuse of discretion for the trial court to

       decline to find her mental health issues to be a mitigating circumstance. She

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1613 | February 25, 2019   Page 10 of 13
       asserts that evidence of her mental health issues was clearly supported by the

       record and that the evidence showed that she suffered from several disorders.

       She further claims that her interview with the police and her recounting of the

       events of the crimes to the police demonstrated the extent of her mental health

       issues. Based on this evidence, Mendenhall maintains that the trial court

       ignored a clear mitigating circumstance and abused its discretion when it

       sentenced her.


[17]   Our Supreme Court has held there is “the need for a high level of discernment

       when assessing a claim that mental illness warrants mitigating weight.”

       Covington v. State, 842 N.E.2d 345, 349 (Ind. 2006). The Supreme Court

       identified several factors to consider in weighing the mitigating force of a

       mental health issue, including “the extent of the inability to control behavior,

       the overall limit on function, the duration of the illness, and the nexus between

       the illness and the crime.” Id. Here, Mendenhall presented no evidence

       concerning the extent of her inability to control her behavior, the overall limit

       on her ability to function, or the nexus between her mental health and her

       offenses. Given the lack of evidence on these factors, Mendenhall has not

       shown that her mental health was significant or clearly supported by the record.

       The trial court did not abuse its discretion when it did not recognize

       Mendenhall’s mental health as a mitigating circumstance.


[18]   Even if the trial court had abused its discretion by declining to find

       Mendenhall’s mental health to be a mitigating circumstance, any error was

       harmless. When the trial court abuses its discretion in sentencing, we will

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1613 | February 25, 2019   Page 11 of 13
       remand if we cannot say with confidence that the trial court would have

       imposed the same sentence. Webb v. State, 941 N.E.2d 1082, 1090 (Ind. Ct.

       App. 2011), trans. denied. Here, the trial court found numerous aggravating

       circumstances, including Mendenhall’s criminal history, the fact that she

       violated probation when she committed the present crimes, the nature of the

       crimes she committed, her commission of prior violent acts, her violation of a

       position of trust, and her unremorseful demeanor. Tr. Vol. III at 14. The trial

       court sentenced Mendenhall to six years for her Level 5 felony battery by means

       of a deadly weapon conviction and sixteen years for her Level 3 felony criminal

       confinement conviction and ordered the sentences to be served concurrently for

       an aggregate sentence of sixteen years executed. Because of the presence of

       significant aggravating factors, we conclude that the trial court would have

       imposed the same sentence even if it had found Mendenhall’s mental health to

       be a mitigating factor. See Scott v. State, 840 N.E.2d 376, 384 (Ind. Ct. App.

       2006) (holding that while the trial court erred in failing to find the defendant’s

       mental illness as a mitigating factor, that error was harmless in light of multiple

       valid aggravating factors), trans. denied.3


[19]   Affirmed.




       3
         To the extent Mendenhall cites to Indiana Appellate Rule 7(B), any appropriateness challenge is waived for
       failure to make a cogent argument. Mendenhall fails to make any argument based on the appropriateness of
       her sentence under Appellate Rule 7(B) and does not conduct an analysis of the nature of the crime or the
       character of the offender as required by the rule. Appellant’s Br. at 13-18. See Ind. Appellate Rule 7(B).
       Because she has failed to make a cogent argument, Mendenhall has waived this issue on appeal. Burnell v.
       State, 110 N.E.3d 1167, 1171 (Ind. Ct. App. 2018).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1613 | February 25, 2019              Page 12 of 13
Riley, J., and Robb, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1613 | February 25, 2019   Page 13 of 13
