                                                                       Feb 16 2016, 9:34 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                        Gregory F. Zoeller
Anderson, Indiana                                          Attorney General of Indiana
                                                           Ian McLean
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Frantz Jerry Sainvil,                                      February 16, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           82A05-1505-CR-345
        v.                                                 Appeal from the Vanderburgh
                                                           Circuit Court
State of Indiana,                                          The Honorable David D. Kiely,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           82C01-1412-F3-5435



Pyle, Judge.




Court of Appeals of Indiana | Opinion 82A05-1505-CR-345 | February 16, 2016                   Page 1 of 15
                                        Statement of the Case
[1]   Appellant/Defendant, Frantz Jerry Sainvil (“Sainvil”), appeals his convictions

      of, and sentences for, Level 4 felony possession of cocaine;1 Class A

      misdemeanor possession of a controlled substance; 2 Class A misdemeanor

      possession of paraphernalia;3 Class A misdemeanor resisting law enforcement;4

      and Class A misdemeanor possession of marijuana.5 On appeal, he argues that

      the prosecutor committed misconduct that amounted to fundamental error

      during his rebuttal closing argument by commenting on Sainvil’s failure to

      testify. In addition, Sainvil argues that his sentences were inappropriate under

      Indiana Appellate Rule 7(B) in light of the nature of his offenses and his

      character. Because we conclude that Sainvil’s prosecutorial misconduct

      argument is moot and that Sainvil’s sentence was not inappropriate, we affirm

      the trial court’s decision.


[2]   We affirm.


                                                      Issues
                 1. Whether the prosecutor improperly commented on Sainvil’s
                 failure to testify.




      1
          IND. CODE § 35-48-4-6(a).
      2
          I.C. § 35-48-4-7(a).
      3
          I.C. § 35-48-4-8.3(a)(1).
      4
          I.C. § 35-44.1-3-1(a)(3).
      5
          I.C. § 35-48-4-11(a)(1).


      Court of Appeals of Indiana | Opinion 82A05-1505-CR-345 | February 16, 2016   Page 2 of 15
              2. Whether Sainvil’s sentence was inappropriate.


                                                       Facts
[3]   At 1:15 a.m. on December 23, 2014, Officers Todd Allan Mattingly (“Officer

      Mattingly”) and Sarah Gibson (“Officer Gibson”) with the Evansville Police

      Department were working the third shift motor patrol for the police department

      when they encountered a vehicle with an extremely dark window tint.

      Believing that the tint was dark enough to constitute a violation, the officers

      stopped the car and gathered the occupants’ identifications (“IDs”). They

      discovered that Lidia White (“White”) was driving the car, Michael Jackson

      (“Jackson”) was sitting in the front passenger seat of the car, and Sainvil was

      sitting in a rear passenger seat of the car.


[4]   After taking the occupants’ IDs, the officers told them to stay in their vehicle

      and then returned to their patrol car to check the IDs. When they got into the

      patrol car, however, Officer Mattingly saw the rear passenger door of the

      stopped vehicle open and Sainvil “stumble out into traffic.” (Tr. 13). Sainvil

      then reached towards the waistband of his pants and “took off” running down

      the middle of the street. (Tr. 14).


[5]   Officer Mattingly pursued Sainvil on foot while Officer Gibson stayed within

      sight of the stopped car. During the pursuit, Officer Mattingly commanded

      Sainvil to “stop,” but he did not do so. (Tr. 14). However, Sainvil fell while he

      was running, and Officer Mattingly began to catch up to him. When the officer

      was close enough to Sainvil, he deployed his taser twice, although both


      Court of Appeals of Indiana | Opinion 82A05-1505-CR-345 | February 16, 2016   Page 3 of 15
      deployments were unsuccessful. Officer Mattingly then deployed the taser a

      third time, and that time successfully hit Sainvil, who dropped to the ground.

      As Sainvil fell, he drew his arms in and “started to dig at his [waistband].” (Tr.

      17). Officer Mattingly struggled to get Sainvil into handcuffs, and during this

      struggle, he saw Sainvil “[fling] his right arm out from the side of him[.]” (Tr.

      18). “[S]everal bags and what appeared to be a cell phone [flew] off to the right

      side[.]” (Tr. 18).


[6]   Soon thereafter, other police officers arrived at the scene. Officer Mattingly was

      then able to leave Sainvil to retrieve the items that Sainvil had flung to the

      ground. These items included bags with twenty-seven grams of “an off white

      rock[-]like substance” that eventually tested positive for cocaine, as well as 13½

      white oblong pills that Indiana Poison Control later identified as hydrocodone

      mixed with acetaminophen. (Tr. 19). Officer Mattingly also searched Sainvil

      and retrieved a bag containing a green leafy substance that was later identified

      as marijuana, a glass pipe, and a drug ledger. During this search, Officer

      Mattingly observed that Sainvil “appear[ed] to be intoxicated.” (Tr. 24).


[7]   While the officers were still at the scene, Sainvil lost consciousness. The

      officers tried several different techniques to wake him up, including a sternum

      rub and the application of cuticle pressure, but none of the techniques worked.

      Eventually, they transported him to a hospital. In the meantime, Officer

      Mattingly instructed officers to search along the path that Sainvil had taken to

      flee the officers. He believed that there was a high probability that Sainvil had

      discarded a firearm somewhere based on a recent spike in gun violence in the

      Court of Appeals of Indiana | Opinion 82A05-1505-CR-345 | February 16, 2016   Page 4 of 15
      area, the amount of narcotics he had found on Sainvil, and the amount of

      money other officers had found on Jackson. The officers searched Sainvil’s

      path and found a gun within five feet of the location where Sainvil had first

      fallen. That location was twenty-five to thirty feet from the spot where Officer

      Mattingly had eventually detained Sainvil.


[8]   On December 29, 2014, the State charged Sainvil with Count 1, Level 3 felony

      possession of cocaine; Count 2, Level 5 felony carrying a handgun without a

      license; Count 3, Level 5 felony possession of a narcotic drug; Count 4, Class A

      misdemeanor possession of paraphernalia; Count 5, Class A misdemeanor

      resisting law enforcement; and Count 6, Class A misdemeanor possession of

      marijuana. The State then added an habitual offender enhancement for Counts

      1, 2, and 3 on February 13, 2013.6


[9]   The trial court held a jury trial on March 9 and 10, 2015.7 At trial, the issue of

      whether Sainvil owned the gun that was found at the scene was extensively

      contested. Sainvil’s defense theory was that someone else owned the gun and

      had previously dropped or placed it in the empty lot before his arrest. Officer

      Mattingly testified and admitted that he had not, at any point, seen Sainvil

      carrying a gun, although he said that Sainvil’s movements towards his

      waistband had raised his suspicions that Sainvil had possessed one. Officer




      6
          I.C. § 35-50-2-8.
      7
       On the first day of trial, the State amended the habitual offender enhancement over Sainvil’s objection to
      correct the date of one of his previous convictions. The State also amended Count 3 to a Level 6 felony.

      Court of Appeals of Indiana | Opinion 82A05-1505-CR-345 | February 16, 2016                       Page 5 of 15
       Gibson also testified that she had not seen Sainvil with a gun. However, she

       said that she had not seen anyone else around that evening in the area where

       the gun had been discovered.


[10]   Officer James Delano (“Officer Delano”), the officer with the Evansville Police

       Department who had found the gun, also testified. He stated that he had

       originally seen the firearm “on top of a pile of leaves.” (Tr. 113). The State

       introduced a photograph of the scene taken by an officer with the police

       department’s crime scene unit and asked Officer Delano, “Officer, in this

       picture to me it appears that there is a leaf or two on top of the gun[.] [H]ow

       did it appear when you found it first?” (Tr. 114). Officer Delano then restated,

       “Whenever I first found it[,] it was on top of the leaves[.] [T]here [were] no

       leaves that I could see on it[.] I could see pretty much the whole gun.” (Tr.

       115). He also said that in the area where he had found the gun, it “looked like

       someone had either slid or [fallen].” (Tr. 117).


[11]   At the conclusion of the evidence, the parties presented their closing arguments.

       Sainvil’s counsel argued that the State had not proved that the gun belonged to

       Sainvil. Instead, she asserted that it was possible someone else had previously

       placed or dropped the gun there. In support of this theory, she focused on the

       facts that Sainvil’s fingerprints had not been found on the gun, the officers had

       not seen Sainvil with a gun, and no one could prove how long the gun had been

       on the ground prior to its discovery. She asserted that the gun’s location—an

       empty lot—would have been “a great place” for other residents of the town “to

       dump a weapon for a variety of reasons,” (Tr. 184), and she told the jury to

       Court of Appeals of Indiana | Opinion 82A05-1505-CR-345 | February 16, 2016   Page 6 of 15
       “look at the photo of [the gun]” and observe that “it [was] covered” with leaves.

       (Tr. 188). She argued that Sainvil would not have had time to conceal the

       weapon under those leaves as he fell, so the gun must have already been there.

       With respect to Officer Delano’s testimony that the gun had not been covered

       with leaves when he found it, she asserted:


               I’m sure that [Officer Delano] heartedly believes, oh when I
               found that gun it was, it was completely uncovered[.] [M]aybe
               that’s his memory of it, but that’s not what the evidence suggests.
               We asked several of the officers what the conditions were, [and]
               not one of them said it was windy[.] [T]hey said it was wet, it
               was cold, but nobody said anything about it being windy. Well[,]
               if none of the officers can testify that they actually saw Mr.
               Sainvil trying to cover up or obscure an item on the ground, and
               if none of the officers can testify that it was windy, how did all of
               those leaves cover it up[?] [H]ow did all of those leaves get on
               that gun[?] [H]ow did all of that mud get all over that gun[?]
               You know, it didn’t happen if it was just dropped suddenly and
               moments before[.] [T]he gun was already there.


       (Tr. 189-90).


[12]   In response, the prosecutor argued in his rebuttal closing argument:

               Officer Delano searched it, and the only testimony you have
               about the presence of that gun on the closest time period from . . .
               when the defendant fell on the gun was Officer Delano saying,
               [“]that leave [sic] wasn’t there[.] I could see it pretty easily[.]
               [T]hat’s the only evidence you have.


       (Tr. 197). Sainvil did not object to the prosecutor’s argument.



       Court of Appeals of Indiana | Opinion 82A05-1505-CR-345 | February 16, 2016   Page 7 of 15
[13]   Subsequently, the jury found Sainvil guilty of the lesser-included offense of

       Level 4 felony possession of cocaine on Count 1; not guilty of Count 2; guilty of

       the lesser-included offense of Class A misdemeanor possession of a controlled

       substance on Count 3; and guilty of Counts 4 through 6. The trial court

       sentenced Sainvil to twelve (12) years for Count 1; one (1) year each for Counts

       3, 4, and 5; and 180 days for Count 6. The trial court enhanced Count 1 by

       eight (8) years because Sainvil had pled guilty to being an habitual offender.

       The court also ordered the sentences to run concurrently, for a total sentence of

       twenty (20) years executed at the Department of Correction. Sainvil now

       appeals.


                                                     Decision
[14]   On appeal, Sainvil raises two issues: (1) whether the prosecutor committed

       misconduct amounting to a fundamental error when he stated in his rebuttal

       closing argument that Officer Delano’s testimony was the only evidence

       regarding the placement of the leaves on the gun; and (2) whether his sentence

       was inappropriate under Indiana Appellate Rule 7(B) in light of the nature of

       his offense and his character. We will address each of these issues in turn.


       1. Prosecutorial Misconduct

[15]   Sainvil’s defense theory at trial was that the gun discovered by police belonged

       to someone else who had placed or abandoned the gun in the lot prior to

       Sainvil’s arrest. In support of this theory, his counsel noted during closing

       argument that the State’s crime scene photograph of the gun depicted the gun


       Court of Appeals of Indiana | Opinion 82A05-1505-CR-345 | February 16, 2016   Page 8 of 15
       covered in leaves as if it had previously been concealed. The prosecutor

       disputed this contention in his rebuttal closing argument, stating:


               Officer Delano searched it, and the only testimony you have
               about the presence of that gun on the closest time period from . . .
               when the defendant fell on the gun was Officer Delano saying,
               [“]that leave [sic] wasn’t there[.] I could see it pretty easily[.]
               [T]hat’s the only evidence you have.


       (Tr. 197).


[16]   Sainvil now asserts that this argument constituted prosecutorial misconduct

       because it highlighted the lack of testimony, other than Officer Delano’s

       testimony, regarding whether there were leaves on top of the gun. Because the

       issue of whether there were leaves on the gun related to whether Sainvil owned

       the gun, Sainvil claims that he is the only person that could have testified to

       contradict Officer Delano by stating that he did not own the gun. Therefore, he

       argues that the prosecutor’s statement was a comment on his failure to testify.

       As prosecutors are prohibited from making such comments under the Fifth

       Amendment to the United States Constitution, Sainvil contends that the

       prosecutor committed misconduct and that his convictions should be reversed.

       See Rowley v. State, 285 N.E.2d 646, 648 (Ind. 1972) (holding that the Fifth

       Amendment prohibits a prosecutor from commenting on a defendant’s failure

       to testify).


[17]   However, we conclude that Sainvil’s argument is moot. In Breedlove v. State, 20

       N.E.3d 172, 174 (Ind. Ct. App. 2014) (quoting Jones v. State, 847 N.E.2d 190,


       Court of Appeals of Indiana | Opinion 82A05-1505-CR-345 | February 16, 2016   Page 9 of 15
       200 (Ind. Ct. App. 2006) (internal citations and quotations omitted), trans.

       denied), trans. denied, we stated the following standard for determining when an

       issue is moot:

               Where the principal questions at issue cease to be of real
               controversy between the parties, the errors assigned become
               moot questions and this court will not retain jurisdiction to
               decide them. Stated differently, when we are unable to provide
               effective relief upon an issue, the issue is deemed moot, and we
               will not reverse the trial court’s determination where absolutely
               no change in the status quo will result.


[18]   Here, Sainvil argues that the prosecutor improperly commented on his failure to

       testify regarding his ownership of the gun, and he requests that we reverse his

       convictions. However, the jury did not find Sainvil guilty of his charge of

       felony carrying a handgun without a license. Accordingly, we cannot provide

       “effective relief” to Sainvil because he was never convicted of the charge that

       the prosecutor’s statement concerned. Therefore, we determine that Sainvil’s

       argument is moot.8


[19]   Although we do not usually review moot issues, “Indiana courts have long

       recognized that a case may be decided on its merits under an exception to the

       general rule when the case involves questions of ‘great public interest.’” Id.




       8
        Sainvil acknowledges that he was acquitted of carrying a handgun without a license, but he suggests that the
       prosecutor’s statement prejudiced the jury against him with regard to his other charges. However, we are not
       persuaded by this argument because the prosecutor’s statement did not implicate Sainvil’s other charges and
       was not a direct comment on his failure to testify.

       Court of Appeals of Indiana | Opinion 82A05-1505-CR-345 | February 16, 2016                    Page 10 of 15
       “‘Cases in this category typically raise important policy concerns and present

       issues that are likely to recur.’” Id. (quoting Mosley v. State, 908 N.E.2d 599, 603

       (Ind. 2009)). This case does not present an important policy question, so we

       will not review Sainvil’s argument on the merits. Id. (finding that an appeal

       merely reviewing an alleged error did not present an important policy question).


       2. Appellate Rule 7(B)

[20]   Next, Sainvil argues that his sentence was inappropriate under Appellate Rule

       7(B) based on the nature of his offense and his character. He claims that he

       received the maximum sentence for each of his convictions. He also argues that

       the nature of his sentence did not warrant the maximum because his offenses

       were non-violent and because the jury rejected the State’s argument that he had

       possessed a gun during his offenses. Further, Sainvil asserts that his sentences

       were inappropriate in light of his character because, even though he had a

       criminal history, he had never been convicted of a violent crime, and all of his

       offenses were the result of his substance abuse problems.


[21]   While sentencing decisions rest within the sound discretion of the trial court, a

       reviewing court may revise a sentence pursuant to Appellate Rule 7(B) if, “after

       due consideration of the trial court’s decision,” it finds that the sentence is

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

       offender. Childress v. State, 848 N.E.2d 1073, 1079-80 (Ind. 2006) (quoting Ind.

       App. R. 7(B)). This Court is not required to use “great restraint,” but we

       nevertheless exercise deference to a trial court’s sentencing decision, both

       because Appellate Rule 7(b) requires that we give “due consideration” to that

       Court of Appeals of Indiana | Opinion 82A05-1505-CR-345 | February 16, 2016   Page 11 of 15
       decision and because we recognize the unique perspective a trial court has when

       making decisions. Stewart v. State, 866 N.E.2d 858, 865-66 (Ind. Ct. App.

       2007). The “principal role of appellate review should be to attempt to leaven

       the outliers and identify some guiding principles for trial courts and those

       charged with improvement of the sentencing statutes, but not to achieve a

       perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225

       (Ind. 2008).


[22]   Sainvil was convicted of a Level 4 felony, being an habitual offender, and four

       Class A misdemeanors.9 He was sentenced to twelve (12) years for his Level 4

       felony conviction, which was enhanced by eight (8) years for his conviction for

       being an habitual offender. The trial court then sentenced him to one (1) year

       each for three of his Class A misdemeanor convictions and to 180 days for his

       fourth Class A misdemeanor conviction. The sentencing range for a Level 4

       felony is two (2) to twelve (12) years, with an advisory sentence of six (6) years.

       I.C. § 35-50-2-5.5. The sentencing range for a habitual offender conviction is

       between six (6) and twenty (20) years. I.C. § 35-50-2-8(i)(1). Finally, a person

       convicted of a Class A misdemeanor “shall be imprisoned for a fixed term of

       not more than one (1) year.” I.C. § 35-50-3-2. Accordingly, the trial court did

       not, as Sainvil claims, sentence him to the maximum possible sentence for each

       of his convictions. His sentence enhancement for his habitual offender




       9
        Sainvil claims that Count 6 was a Class B misdemeanor, but the record reflects that this conviction was
       enhanced to a Class A misdemeanor.

       Court of Appeals of Indiana | Opinion 82A05-1505-CR-345 | February 16, 2016                    Page 12 of 15
       conviction was twelve (12) years less than the maximum, and his sentence for

       one of his Class A misdemeanor convictions was 180 days, rather than a full

       year as allowed by INDIANA CODE § 35-50-3-2.


[23]   Moreover, we do not find that Sainvil’s sentences were inappropriate. With

       respect to the nature of his offense, Sainvil asserts that his sentences should

       have been lower because his actions were non-violent and because the jury

       determined that he did not possess a gun when he fled the police. We

       acknowledge that the nature of Sainvil’s offense was not horrendous, but he did

       attempt to flee police officers by leading them through the middle of a traveled

       street, and he also attempted to discard and hide the drugs he was carrying.


[24]   Regardless of the nature of his offense, however, we conclude that his sentence

       was not inappropriate based on his character. Sainvil has multiple prior

       convictions for the same types of offenses he was convicted of here. In 2000,

       Sainvil was convicted of Class D felony possession of cocaine. His sentence

       was suspended to the Drug Abuse Probation Service Program, but his probation

       in that cause was “closed unsatisfactorily.” (Sentencing Tr. 16). In 2002,

       Sainvil was convicted of Class D felony dealing in cocaine, and he was again

       enrolled in Drug Abuse Probation Services. His probation in that cause was

       also revoked. In 2007, Sainvil was convicted of purchasing a controlled

       substance in Georgia. Subsequently, in 2010, Sainvil was convicted of Class C

       felony possession of cocaine and was given the opportunity to be on the

       Forensic Diversion Program. However, he was revoked from that program.

       Finally, in 2013, Sainvil was convicted of two counts of Class D felony

       Court of Appeals of Indiana | Opinion 82A05-1505-CR-345 | February 16, 2016   Page 13 of 15
       possession of a narcotic drug and two counts of Class A misdemeanor resisting

       law enforcement. In addition, between 2000 and 2014, Sainvil was convicted of

       multiple misdemeanor offenses, including Class A misdemeanor driving while

       suspended with a prior conviction within ten years; Class B misdemeanor

       visiting a common nuisance; and Class A misdemeanor resisting law

       enforcement.


[25]   Sainvil argues that the trial court should have considered the fact that, although

       he had a prior criminal history, most of his offenses resulted from his substance

       abuse problems. However, Sainvil has previously been granted the leniency he

       now requests, and such leniency has not reformed his behavior. Instead, he has

       continued to repeatedly purchase, possess, and deal drugs, as well as resist

       arrest. All of these actions show a disrespect for the law that does not reflect

       well on his character. Although, as Sainvil argues, substance abuse problems

       may at times mitigate evidence of repeated drug convictions, that is not always

       the case. See Hape v. State, 903 N.E.2d 977, 1002 (Ind. Ct. App. 2009) (holding

       that, where a defendant is aware of a substance abuse problem but has not

       taken appropriate steps to treat it, the sentence did not warrant a reduction),

       trans. denied.


[26]   Based on the facts that Sainvil’s criminal career has spanned sixteen years; that

       the trial court has shown him leniency multiple times, with unsuccessful results;

       and that Sainvil’s offenses demonstrate a lack of respect for the law, we

       conclude that his sentence was not inappropriate in light of the nature of his

       offense and his character.

       Court of Appeals of Indiana | Opinion 82A05-1505-CR-345 | February 16, 2016   Page 14 of 15
[27]   Affirmed.


       Baker, J., and Bradford, J., concur.




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