MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             FILED
regarded as precedent or cited before any                                   Aug 20 2020, 8:36 am

court except for the purpose of establishing                                      CLERK
the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Brandon E. Murphy                                        Curtis T. Hill, Jr.
Cannon Bruns & Murphy, LLC                               Attorney General of Indiana
Muncie, Indiana
                                                         Myriam Serrano
                                                         Samantha M. Sumcad
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joseph Hicks,                                            August 20, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2168
        v.                                               Appeal from the Jay Circuit Court
                                                         The Honorable Brian D. Hutchison,
State of Indiana,                                        Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         38C01-1810-F2-16



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2168 | August 20, 2020                     Page 1 of 16
                                           Case Summary
[1]   Joseph Hicks (“Hicks”) appeals his convictions and aggregate sentence for

      Dealing in Methamphetamine, as a Level 2 felony,1 Dealing in Marijuana, as a

      Level 6 felony,2 and Neglect of a Dependent, as a Level 5 felony.3 We affirm

      the dealing convictions and sentence and reverse the neglect conviction.


                                                    Issues
[2]   Hicks presents two issues for review:


                 I.        Whether his convictions are supported by sufficient
                           evidence; and


                 II.       Whether his sentence is inappropriate.


                                    Facts and Procedural History
[3]   On October 10, 2018, Jay County Sheriff’s Deputy Tony Lennartz (“Deputy

      Lennartz”) was dispatched to serve a summons upon Chevelle Ruhl (“Ruhl”) at

      an address in Portland, Indiana. Deputy Lennartz learned that the summons

      had an incorrect address, but he proceeded to a nearby address because he

      believed that Ruhl could be located with her mother, Amanda Oliver

      (“Oliver”). Deputy Lennartz knocked at the door and Oliver answered,



      1
          Ind. Code § 35-48-4-1.1(a)(2).
      2
          I.C. § 35-48-4-10(a)(2).
      3
          I.C. § 35-46-1-4(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2168 | August 20, 2020   Page 2 of 16
      holding an infant.4 Oliver called out to Ruhl to come and get the summons.

      During the exchange, Deputy Lennartz detected a strong odor of marijuana.

      Concerned for the infant, Deputy Lennartz applied for a search warrant for the

      house, averring that Ruhl controlled the property.5


[4]   Approximately forty-five minutes later, Deputy Lennartz returned to the

      residence with a search warrant, accompanied by Sheriff Dwayne Ford, parole

      agent Dwight Albrecht, and Chief Deputy Patrick Wells (“Deputy Wells”).

      The officers knocked, received no response, and entered through an unlocked

      door. Oliver, holding the infant, emerged from the southwest bedroom; no one

      else was present.


[5]   The officers executed the search warrant, focusing primarily upon the bedroom

      from which Oliver had emerged. Inside that bedroom and a closet, they found

      an insurance policy and a bank statement with the name of Joseph Hicks.

      From a closet shelf, the officers retrieved a thermos. There were “items down

      inside” the thermos that “appeared to be” methamphetamine and marijuana.

      (Tr. at 76-77, 80.) A small pouch containing a substance was found inside

      Oliver’s purse. This also “appeared to be” methamphetamine. (Id. at 74.) The

      officers seized scales, straws, baggies, a pestle, smoking pipes, and a razor



      4
       In the charging Information, the infant was referred to as A.A. At the trial, Deputy Wells testified that the
      child was Oliver’s granddaughter. (Tr. at 56.)
      5
       At trial, there was no documentary evidence produced to show who owned or leased the residence.
      However, officers observed that all three bedrooms appeared to be occupied. Attorney commentary and
      witness references suggested that the residents may have included all or some of the following persons:
      Oliver, Hicks, Ruhl, Ruhl’s child, Travis Stone, and Alex Blankenship.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2168 | August 20, 2020                    Page 3 of 16
      blade. Deputy Lennartz believed that he had found a “mobile delivery kit.”

      (Id. at 126). He packaged and sealed for transport the substances that he

      believed to be contraband.


[6]   When Hicks arrived at the residence in response to a call from Oliver, he was

      “taken into custody.” (Tr. at 108.) He then “became agitated” and demanded

      that the deputies “leave his property.” (Id. at 109.) Hicks yelled out to Oliver

      to “keep her mouth shut.” (Id.) Oliver was also arrested.


[7]   Hicks was charged with Dealing in Methamphetamine, Dealing in Marijuana,

      and Neglect of a Dependent. On October 15, 2018, the State filed a Notice of

      Intent to call an expert witness, pursuant to Indiana Code Section 35-36-11-1

      and Hicks filed a demand for in-court cross-examination. He renewed the

      demand on May 8, 2019 but filed a withdrawal request dated June 11, 2019.

      Hicks’s first trial ended in a mistrial due to insufficient jurors.


[8]   On August 1, 2019, Hicks was brought to trial before a jury. Relying upon

      Hicks’s earlier withdrawal of his demand for in-court cross-examination, the

      State elected not to present live expert testimony. The State called two

      witnesses, Deputy Lennartz and Deputy Wells.6 The jury convicted Hicks of all

      charges against him. On September 6, 2019, Hicks was given an aggregate

      sentence of twenty-two years, consisting of twenty-two years for Dealing in




      6
       Hicks recalled Deputy Lennartz to testify as the sole defense witness. Oliver had been granted use
      immunity to testify as a State witness, but the grant was withdrawn, and Oliver did not testify.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2168 | August 20, 2020                 Page 4 of 16
       Methamphetamine, a concurrent two-year sentence for Dealing in Marijuana,

       and a concurrent five-year sentence for Neglect of a Dependent. Hicks now

       appeals.



                                  Discussion and Decision
                                  Sufficiency of the Evidence
[9]    Hicks contends that the State presented insufficient evidence to support any of

       his convictions. Our standard of review for sufficiency is clear: we will

       consider only the evidence most favorable to the verdicts and the reasonable

       inferences to be drawn therefrom. Leonard v. State, 73 N.E.3d 155, 160 (Ind.

       2017). We will affirm a conviction if there is probative evidence from which a

       reasonable jury could have found the defendant guilty beyond a reasonable

       doubt. Id. We will neither reweigh the evidence nor reassess the credibility of

       witnesses. Id.


[10]   To convict Hicks of Neglect of a Dependent, as charged, the State was required

       to establish beyond a reasonable doubt that Hicks, having the care of A.A. (who

       was alleged by the State to be Hicks’s dependent), knowingly or intentionally

       placed A.A. in a situation that endangered A.A.’s life or health. I.C. § 35-46-1-

       4(a)(1); App. Vol. II, pg. 11. The requisite mens rea is the defendant’s

       “subjective[ ] aware[ness] of a high probability that he placed the dependent in

       a dangerous situation.” Gross v. State, 817 N.E.2d 306, 308 (Ind. Ct. App.

       2004). The danger to the dependent must be “actual and appreciable.” Id. at

       309.
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2168 | August 20, 2020   Page 5 of 16
[11]   The State presented evidence that Oliver had been holding an infant, later

       identified in the charging information as A.A., at the same time that an odor of

       marijuana emanated from the residence. Even assuming that this situation

       endangered A.A.’s life or health, the State presented no evidence that Hicks

       ever had the care of A.A. In closing, the State urged the jury to convict Hicks

       because he had been a “de facto grandparent” of A.A. (Tr. at 128.) But this

       contention had no testimonial support. Indeed, Deputy Wells testified that “the

       child was seen with no one but Oliver.” (Id. at 113.) Deputy Lennartz testified

       that he did not see Hicks with the child; he had seen only Oliver, Ruhl, and the

       infant when serving the summons and only Oliver and the infant were present

       at the execution of the search warrant.


[12]   The State argues that “a jury could reasonably infer Hicks was there during the

       first visit” because his truck was present. Appellee’s Brief at 18. From Deputy

       Lennartz’s testimony that he recognized Hicks’s truck the jury could have

       inferred that Hicks was present and unseen when the summons was served.

       This inference would in turn raise the prospect that Hicks was assisting Oliver

       with the care of the infant. But there is no proof either that Hicks was home on

       that specific occasion or that he ever assisted in A.A.’s care. Speculation and

       mere inferences do not satisfy the State’s burden of proof. See C.T. v. State, 28

       N.E.3d 304, 309 (Ind. Ct. App. 2015) (recognizing that inference stacking

       without proof of a predicate fact is not constitutionally adequate proof beyond a

       reasonable doubt), trans. denied. The State did not provide sufficient evidence

       from which a reasonable jury could conclude beyond a reasonable doubt that


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2168 | August 20, 2020   Page 6 of 16
       Hicks had the care of A.A. and knowingly or intentionally placed A.A. in

       danger. This conviction must be reversed.


[13]   To convict Hicks of Dealing in Methamphetamine, as charged, the State was

       required to establish beyond a reasonable doubt that Hicks knowingly or

       intentionally possessed methamphetamine, pure or adulterated, in an amount

       of at least ten grams, with intent to deliver the methamphetamine. I.C. § 35-48-

       4-1.1(a)(2); App. Vol. II, pg. 11.7 To convict Hicks of Dealing in Marijuana, as

       charged, the State was required to establish beyond a reasonable doubt that

       Hicks knowingly or intentionally possessed marijuana, pure or adulterated, in

       an amount of at least thirty grams, with intent to deliver the marijuana. I.C. §

       35-48-4-10(a)(2); App. Vol. II, pg. 11.8




       7
           This statute provides in relevant part:

                  (a) A person who:
                            (1) knowingly or intentionally:
                  (A) delivers; or
                  (B) finances the delivery of;
       methamphetamine, pure or adulterated; or
       (2) possesses, with intent to:
                  (A) deliver; or
                  (B) finance the delivery of;
       methamphetamine, pure or adulterated;
       commits dealing in methamphetamine, a Level 5 felony, except as provided in subsections (b) through (e).
       The offense is elevated to a Level 2 felony if the amount involved is over 10 grams.
       8
         Indiana Code Section 35-48-4-10(a)(2) provides: “A person who: … possesses, with intent to: … deliver …
       marijuana, hash oil, hashish, or salvia, pure or adulterated; commits dealing in marijuana, hash oil, hashish,
       or salvia, a Class A misdemeanor, except as provided in subsections (b) through (d). Subsection (b) provides
       that a person may be convicted of an offense under the foregoing subsection (a)(2) only if: “(1) there is


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2168 | August 20, 2020                   Page 7 of 16
[14]   It is elementary that, to secure convictions for dealing contraband, the State

       bears the burden of showing that a substance is contraband. However, the State

       is not required in every case to elicit in-court testimony from a forensic analyst

       to establish the chemical composition of a substance. With regard to

       marijuana, an officer’s training and experience in recognizing its characteristic

       smell and appearance may permit officer identification. Our Indiana Supreme

       Court has observed: “It does not take much to recognize the incriminating

       character of marijuana.” Gray v. State, 957 N.E.2d 171, 175 (Ind. 2011). With

       regard to substances lacking such distinctiveness, analytical evidence assists the

       jury with reaching a reasonable conclusion as to the composition of the

       substance. Examples may include an officer’s testimony of field test results,

       expert testimony, or laboratory results.9




       evidence in addition to the weight of the drug that the person intended to manufacture, finance the
       manufacture of, deliver, or finance the delivery of the drug[.]” Pursuant to subsection (c)(2)(A), the offense
       of Dealing in Marijuana is elevated from a Class A misdemeanor to a Level 6 felony if the amount involved
       is at least 30 grams of marijuana.
       9
         Here, in accordance with Indiana Code Section 35-36-11-2, et. Seq., the State introduced a Certificate of
       Analysis. Indiana Code Section 35-36-11-2 provides: “If the prosecuting attorney intends to introduce a
       laboratory report9 as evidence in a criminal trial, the prosecuting attorney must file a notice of intent to
       introduce the laboratory report not later than twenty (20) days before the trial date, unless the court
       establishes a different time.” Indiana Code Section 35-36-11-3 provides: “If the defendant wishes for the
       person who prepared the laboratory report to be present at the trial for cross-examination, the defendant must
       file a demand for cross-examination not later than ten (10) days after the defendant receives the notice filed
       under section 2 of this chapter, unless the court establishes a different time.” If the prosecuting attorney is
       non-compliant, the State cannot submit the laboratory report into evidence without the testimony of the
       person who conducted the test and prepared the laboratory report. I.C. § 35-36-11-4. If the defendant does
       not file a demand, he “waives the right to confront and cross-examine the person who prepared the
       laboratory report.” I.C. § 35-36-11-5.
       Hicks notified the trial court in writing that he wished to withdraw his statutory demand. Hicks expressed no
       contrary intent as the parties proceeded to the second trial setting; thus, Hicks arguably waived his right to
       conduct in-court cross examination of a laboratory report preparer. That said, the statutory scheme is not a


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2168 | August 20, 2020                    Page 8 of 16
[15]   Here, the State introduced as substantive evidence in lieu of live testimony

       State’s Exhibit 14, a document captioned as a Certificate of Analysis from the

       Indiana State Police Laboratory, Fort Wayne Regional Laboratory. Hicks

       made no objection to the document’s admission into evidence. Evidence Rule

       901(a) provides:


                To satisfy the requirement of authenticating or identifying an
                item of evidence, the proponent must produce evidence sufficient
                to support a finding that the item is what the proponent claims it
                is.


       It appears that State’s Exhibit 14 was offered pursuant to Evidence Rule 902,

       whereby certain public documents and public records may be offered into

       evidence as self-authenticating evidence.10 We have examined the document

       and it does not comport with Evidence Rule 902. That said, there was no

       objection to its admission.


[16]   Deputy Lennartz was the sponsoring witness for State’s Exhibit 14. He testified

       that his training and experience led him to believe that the packages retrieved



       means for lessening the State’s burden of proof. See Marley v. State, 747 N.E.2d 1123, 1129 (Ind. 2001)
       (recognizing that a statute may not impermissibly shift the burden of proof as to an element of a crime
       because “federal due process requires the State to bear the burden of proof on every element of a criminal
       offense” (citing In re Winship, 397 U.S. 358, 364, 90 (1970)). Rather, we view the enactment by our
       Legislature as procedural legislation intended to promote cost savings and efficiency in the trial process.
       10
          Pursuant to this Rule, a self-authenticating document may be a domestic public document sealed and
       signed, Rule 902(1), a domestic public document signed and certified, Rule 902(2), a foreign public
       document, Rule 902(3), a certified copy of a public record, Rule 902(4), an official publication, Rule 902(5), a
       newspaper or periodical, Rule 902(6), a trade inscription, Rule 902(7), a notarized document, Rule 902(8),
       commercial paper, Rule 902(9), a document declared by statute to be presumptively genuine or authentic,
       Rule 902(10), a certified domestic record of a regularly conducted activity, Rule 902(11), or a certified foreign
       record of a regularly conducted activity, Rule 902(12).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2168 | August 20, 2020                     Page 9 of 16
       from inside the thermos contained crystal methamphetamine and marijuana.

       He had anticipated having those items analyzed following the seizure.

       According to Deputy Lennartz, he had placed the bags from the thermos in

       larger packaging and sealed the larger package for placement in an evidence

       locker and eventual transport to the “Fort Wayne State Lab.” (Id.) Deputy

       Lennartz had not transported the materials, but offered that “typically, the

       Chief Deputy does the transport.” (Id. at 81.) He testified “there’s some

       markings” related to transport and he had “then received this stuff back” and it

       had been kept “in the evidence area at the Sheriff’s Department.” (Id.)

       Although lacking some detail, Deputy Lennartz’s testimony strongly suggests

       that the seized items remained in an undisturbed condition in official custody. 11


[17]   Prior to the admission of State’s Exhibit 14, Deputy Lennartz was shown

       State’s Exhibit 10 and testified that it had “the look and smell of unburnt

       marijuana.” (Tr. at 77.) Deputy Lennartz stated that he was familiar with the

       appearance and smell of marijuana, because of his training and experience.

       Given Deputy Lennartz’s background, experience, and training, he provided

       adequate identification testimony to permit a reasonable jury to conclude that

       the deputies had seized marijuana. Next, we consider whether the State

       established that the deputies also seized methamphetamine.




       11
         To establish a proper chain of custody, the State must give reasonable assurances that the evidence
       remained in an undisturbed condition. Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002). However, the State
       need not establish a perfect chain of custody, and once the State “strongly suggests” the exact whereabouts of
       the evidence, any gaps go to the weight of the evidence and not to admissibility. Id.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2168 | August 20, 2020                 Page 10 of 16
[18]   Deputy Lennartz was asked to examine State’s Exhibit 12, a physical exhibit.

       He testified that he recognized that particular exhibit as an “item found during

       the search at this State Road 67 residence” and “it appears to be

       methamphetamine, crystal methamphetamine.” (Id. at 80.) Because of Hicks’s

       waiver of cross-examination, the State was not required to call the preparer of

       State’s Exhibit 14 as a witness and Deputy Lennartz was asked to explain its

       contents.


               State: And I’m going to show you what’s been marked as State’s
               exhibit number 14. … These items were analyzed – these three
               individual items and the result indicates what with regard to
               State’s exhibit number 12?


               Deputy Lennartz: Net weight – it was found to contain
               methamphetamine, a controlled substance. Net weight thirteen
               point nine three grams. …


               State: And State’s exhibit number 10 the – what the items you
               believed to be marijuana. What was or that [sic] you preliminary
               [sic] identified [as] marijuana, what was the lab report – what did
               that say? … Was it found to be marijuana?


               Deputy Lennartz: Yes. …


               State: Okay. And what was the weight on – on State’s exhibit
               number 10?


               Deputy Lennartz: Two point two six grams [and] seventy five
               point eight seven grams. …




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2168 | August 20, 2020   Page 11 of 16
               State: And State’s exhibit number 8, this would’ve been the little
               pouch here in Amanda Oliver’s purse. That was item number
               (inaudible) report. What was that?


               Deputy Lennartz: It was found to contain methamphetamine, a
               controlled substance. Net weight of point six three grams.


       (Tr. at 81-84.)


[19]   The evidence is sufficient to permit the jury to draw an inference that the seized

       items were those submitted for analysis and found to be contraband.


[20]   We next consider whether the State established that Hicks possessed the

       contraband. The State proceeded on the theory that Hicks had constructive

       possession. Possession of contraband may be either actual or constructive. See

       Gee v. State, 810 N.E.2d 338, 340 (Ind. 2004). A person actually possesses an

       item when he has direct physical control over it. Gray v. State, 957 N.E.2d 171,

       174 (Ind. 2011). But when the State cannot show actual possession, a

       conviction for possessing contraband may rest upon proof of constructive

       possession. Id. A person constructively possesses something when the person

       has the capability to maintain dominion and control over the item and the

       intent to maintain dominion and control over it. Id.


[21]   When a possessory interest is not exclusive, the State must show additional

       circumstances as to the defendant’s knowledge of the presence and the nature of

       the item. Id. Some possible, non-exclusive examples include: (1) a defendant’s

       incriminating statements; (2) a defendant’s attempting to leave or making


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2168 | August 20, 2020   Page 12 of 16
       furtive gestures; (3) the location of contraband like drugs in settings suggesting

       manufacturing; (4) the item’s proximity to the defendant; (5) the location of

       contraband within the defendant’s plain view; and (6) the mingling of

       contraband with other items the defendant owns. Id. at 175. “[F]inding

       contraband hidden from plain view on premises in which a defendant has a

       nonexclusive possessory interest when the defendant was not even present will

       not, without more, support a conviction on a theory of constructive

       possession.” Id.


[22]   The deputies testified that they had found a bank statement and insurance

       policy bearing the name of Joseph Hicks, lying upon a bedroom dresser and a

       closet shelf, respectively. The insurance policy was found in close proximity to

       the thermos. This discovery, together with Hicks’s insistence that officers leave

       “his” premises, suggested that Hicks resided there and had some control. Hicks

       also demanded that Oliver remain quiet. The State presented sufficient

       evidence from which the jury could find that Hicks constructively possessed

       contraband.


[23]   When a possessory offense is elevated based upon intent to deliver:


               the State must prove that appellant had the intent to deliver in
               order to gain a conviction of possession of [contraband] with
               intent to deliver. Because intent is a mental state, and because it
               is often the case that an actor does not verbally express intent, the
               trier of fact must usually resort to reasonable inferences based on
               examination of the surrounding circumstances to determine the
               existence of the requisite intent.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2168 | August 20, 2020   Page 13 of 16
       Chandler v. State, 581 N.E.2d 1233, 1237 (Ind. 1991).


[24]   The State presented evidence from which the jury could reasonably determine

       that Hicks had intent to deliver. That is, the deputies found the contraband in

       packaging as if it were to be offered for individual sale, they found scales, and

       they found something that appeared to be a “mobile delivery kit.” (Tr. at 126.)


                                                  Sentence
[25]   Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent

       appellate review and revision of a sentence imposed by a trial court. Sanders v.

       State, 71 N.E.3d 839, 843 (Ind. Ct. App. 2017), trans. denied. This appellate

       authority is embodied in Indiana Appellate Rule 7(B). Id. Under 7(B), the

       appellant must demonstrate that his sentence is inappropriate in light of the

       nature of his offense and his character. Id. (citing Ind. Appellate Rule 7(B)). In

       these instances, deference to the trial courts “should prevail unless overcome by

       compelling evidence portraying in a positive light the nature of the offense (such

       as accompanied by restraint, regard, and lack of brutality) and the defendant’s

       character (such as substantial virtuous traits or persistent examples of good

       character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[26]   The Indiana Supreme Court has explained that the principal role of appellate

       review is an attempt to leaven the outliers, “not to achieve a perceived ‘correct’

       result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). The

       question is not whether another sentence is more appropriate, but whether the



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2168 | August 20, 2020   Page 14 of 16
       sentence imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct.

       App. 2008).


[27]   A defendant convicted of a Level 2 felony is subject to a sentencing range of ten

       to thirty years, with seventeen and one-half years as the advisory sentence. I.C.

       § 35-50-2-4.5. A defendant convicted of a Level 6 felony is subject to a

       sentencing range of six months to two and one-half years, with an advisory

       sentence of one year. I.C. § 35-50-2-7(b). For his crimes, Hicks received

       concurrent sentences of twenty-two years and two years. He contends that the

       nature of the offenses and his character do not support his aggregate sentence.

       In particular, he emphasizes that possession is not a crime of violence and he

       has regularly been gainfully employed to provide for his dependents.


[28]   First, we look to the nature of the offenses. As he observes, Hicks did not

       commit crimes of violence by possessing contraband. However, he was not

       sentenced for a violent crime. He possessed 13.92 grams of methamphetamine

       and 75.87 grams of marijuana, significantly more than that necessary to support

       the elevation of the offenses.


[29]   Next, we consider the defendant’s character. Hicks has a history of

       employment. He also has a history of substance abuse and probation

       violations. Hughes was twice adjudicated a delinquent, for possessing

       marijuana and committing what would be theft if committed by an adult. He

       has an extensive criminal history consisting of eight prior convictions as an

       adult. In addition to six misdemeanors, Hicks has felony convictions for


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2168 | August 20, 2020   Page 15 of 16
       Battery with bodily injury and Criminal Recklessness while armed with a

       deadly weapon. While out on bond in the instant case, Hicks was charged with

       Domestic Battery causing serious bodily injury and Possession of

       Methamphetamine.


[30]   Hicks has not presented compelling evidence that portrays in a positive light the

       nature of the offenses or his character. Absent such evidence, we are

       unpersuaded that his sentence is inappropriate.



                                               Conclusion
[31]   There is a lack of constitutionally adequate proof beyond a reasonable doubt to

       support the conviction for Neglect of a Dependent. However, the State

       provided sufficient evidence that Hicks committed the charged offenses of

       Dealing in Methamphetamine and Dealing in Marijuana. His aggregate

       sentence for the dealing convictions is not inappropriate. We remand with

       instructions to the trial court to vacate the conviction for Neglect of a

       Dependent and the concurrent five-year sentence.


[32]   Affirmed in part; reversed in part; and remanded with instructions.


       Crone, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2168 | August 20, 2020   Page 16 of 16
