MEMORANDUM DECISION                                                 FILED
                                                               Aug 31 2016, 10:06 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                        CLERK
                                                                Indiana Supreme Court
                                                                   Court of Appeals
precedent or cited before any court except for the                   and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Gary A. Cook                                             Gregory F. Zoeller
Peru, Indiana                                            Attorney General of Indiana
                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jackie Butler,                                           August 31, 2016

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         34A04-1512-CR-2238
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable George A. Hopkins,
                                                         Judge
Appellee-Plaintiff.
                                                         Cause No. 34D04-1506-F5-65




Riley, Judge.




Court of Appeals of Indiana | Memorandum Opinion 34A04-1512-CR-2238 | August 31, 2016   Page 1 of 15
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Jackie Butler (Bulter), appeals his conviction and

      sentence for unlawful possession of a firearm by a serious violent felon, a Level

      4 felony.


[2]   We affirm and remand with instructions.


                                                   ISSUES

[3]   Butler raises three issues on appeal, which we restate as the following:

      (1) Whether there was sufficient evidence to support the portion of Butler’s

      conviction for possession of a firearm;

      (2) Whether Butler’s sentence is inappropriate in light of the nature of the

      offense and his character; and

      (3) Whether the trial court committed a sentencing error on the habitual

      offender enhancement.


                           FACTS AND PROCEDURAL HISTORY

[4]   From October 2014, Butler was Jill Wilson’s (Wilson) live-in boyfriend. Also

      living at Wilson’s apartment in Kokomo, Indiana, was her adult son, Dominic

      Wilson (Dominic) and her fifteen-year-old daughter. On June 15, 2015, at

      approximately 3:45 p.m., Dominic came home from work and he violently

      banged on the door. Butler let Dominic in and remarked on Dominic’s errant

      conduct. Wilson, who was at home, heard Butler call Dominic “a punk ass

      bitch,” and Dominic called Butler “a bitch.” (Transcript p. 131). A scuffle

      ensued. Wilson pleaded with Dominic not to fight Butler since he had a

      Court of Appeals of Indiana | Memorandum Opinion 34A04-1512-CR-2238 | August 31, 2016   Page 2 of 15
      pacemaker. When the two stopped fighting, Dominic went upstairs to another

      apartment to help a friend move out, and Butler went to a neighbor’s house

      down the street. During the fight, Dominic’s wallet had fallen on the floor.

      Dominic had just been paid, and when Wilson peeked through his wallet, she

      saw that it was empty. After a short while, Dominic returned to Wilson’s

      apartment to retrieve his wallet, but Wilson informed Dominic that the wallet

      was empty. Dominic then stated, “that bitch ass nigga took my money,” and

      he ran down the street to the neighbor’s house to confront Butler. (Tr. p. 131).


[5]   When Dominic confronted Butler, Butler denied the allegations. Infuriated by

      his denials, Dominic returned to his mother’s apartment and threw Butler’s

      clothes out of the apartment. Shortly thereafter, Butler returned to Wilson’s

      apartment, and Wilson yelled at him for taking Dominic’s money. Annoyed by

      Wilson’s allegations, Butler forced Wilson into the bedroom and threw her on

      the bed. Butler proceeded to choke Wilson. Because he had a pacemaker,

      Wilson did not want to kick Butler, and instead wiggled herself out of Butler’s

      hold and slid off the bed. Butler followed Wilson and tried to smother her with

      a pillow. To free herself, Wilson kicked Butler and escaped from the room.

      Dominic, who was upstairs in another apartment, heard screams and

      commotion originating from his apartment. Accompanied by his friend,

      Dominic opened Wilson’s apartment door and realized that Butler had

      assaulted Wilson. A fight ensued. During the fight, Wilson exited her

      apartment.




      Court of Appeals of Indiana | Memorandum Opinion 34A04-1512-CR-2238 | August 31, 2016   Page 3 of 15
[6]   Once outside her apartment, Wilson encountered Sarah Tomlinson

      (Tomlinson), Dominic’s acquaintance. Wilson was coughing, and Tomlinson

      directed Wilson to get away from her apartment and seek safety in hers. At that

      moment, Tomlinson and Wilson heard two gunshots, and they both ran to

      Tomlinson’s apartment for safety. As they neared Tomlinson’s apartment, they

      saw Butler running toward them, and according to Tomlinson, Butler was

      holding a “very small gun.” (Tr. p. 168). Tomlinson and Wilson entered

      Tomlinson’s apartment, and thereafter Tomlinson called the police.


[7]   Numerous Kokomo Police Department and Howard County Sheriff’s

      Department officers responded to a dispatch of an active shooter at Wilson’s

      apartment complex. The officers knocked on Wilson’s apartment door, and a

      short while later, Butler emerged and was arrested. Afterward, the officers

      entered Wilson’s apartment and conducted a protective sweep and then left. A

      search warrant to search Wilson’s apartment was subsequently obtained, and

      during the search, the officers found a semiautomatic pistol with a loaded

      magazine hidden underneath a mattress in the southeast bedroom. They also

      found an ammunition box with about forty-five bullets. In addition, there was

      a bullet hole in the door, but the officers were unable to find a fired bullet or

      casing.


[8]   On June 11, 2015, the State filed an Information, charging Butler with Count I,

      criminal recklessness, a Level 5 felony; Count II, strangulation, a Level 6

      felony; and Count III, domestic battery, a Class A misdemeanor. On July 9,

      2015, the State added Count IV, unlawful possession of a firearm by a serious

      Court of Appeals of Indiana | Memorandum Opinion 34A04-1512-CR-2238 | August 31, 2016   Page 4 of 15
       violent felon, a Level 4 felony, and at the same time, the State filed a habitual

       offender enhancement.


[9]    On October 20 through October 21, 2015, the trial court conducted Butler’s jury

       trial. The trial was split into three phases. The first phase of trial involved all

       charges except the serious violent felon (SVF) portion of Count IV. At the close

       of the evidence, the jury acquitted Butler of the criminal recklessness charge and

       returned guilty verdicts for strangulation, domestic battery, and possession of a

       firearm. In the second phase, the jury found Butler guilty of unlawful

       possession of a firearm by a SVF. Finally, in the third phase of Butler’s trial,

       the jury adjudicated Butler as an habitual offender.


[10]   On November 20, 2015, the trial court conducted Butler’s sentencing hearing,

       and at the close of the evidence, the trial court imposed concurrent sentences of

       one and one-half years for strangulation, one year for domestic battery, and ten

       years for unlawful possession of a firearm by a SVF. Due to his habitual

       offender adjudication, Butler’s sentence was enhanced by ten years, to be served

       consecutively to his other ten-year sentence. As such, Butler’s aggregate

       executed term was twenty years. In addition, the trial court ordered Butler’s

       instant sentences to run consecutively with his other sentence in Cause Number

       34D04-1507-F4-00080—unlawful possession of a firearm by SVF and resisting

       law enforcement, where the trial court imposed a five-year sentence.


[11]   Butler now appeals. Additional facts will be provided as necessary.




       Court of Appeals of Indiana | Memorandum Opinion 34A04-1512-CR-2238 | August 31, 2016   Page 5 of 15
                                   DISCUSSION AND DECISION

                                        I. Sufficiency of the Evidence

[12]   Butler asserts that there was insufficient evidence to support actual possession

       of the firearm in question. When reviewing a challenge to the sufficiency of the

       evidence, we do not reweigh evidence or judge the credibility of witnesses.

       Duncan v. State, 23 N.E.3d 805, 812 (Ind. Ct. App. 2014), trans. denied. Instead,

       we consider only the evidence and the reasonable inferences supporting the

       verdict. Id. If there is substantial evidence of probative value from which a

       reasonable trier of fact could have found the defendant guilty of the crime

       charged beyond a reasonable doubt, then the judgment will not be disturbed.

       Id. Further, a conviction may be based on circumstantial evidence, and it is not

       necessary that the evidence overcome every reasonable hypothesis of

       innocence. Boggs v. State, 928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans.

       denied.


[13]   The State presented evidence that Butler possessed a firearm. At trial,

       Tomlinson stated that she and Dominic were friends but no longer talked since

       Dominic was serving time in prison. Tomlinson testified that on the day in

       question, she and other residents from her apartment complex were drawn to

       Wilson’s apartment due to an altercation. Tomlinson testified that when she

       arrived at Wilson’s apartment, the back door was wide open and she observed

       Butler smothering Wilson. When Wilson exited her apartment, Tomlinson

       directed Wilson to her apartment for safety. Tomlinson further stated that as

       they were walking to her apartment, they heard gunshots originating from

       Court of Appeals of Indiana | Memorandum Opinion 34A04-1512-CR-2238 | August 31, 2016   Page 6 of 15
       Wilson’s apartment. Both ran to Tomlinson’s apartment for safety. However,

       before going inside, Tomlinson stated that they were met by Butler and he was

       holding a small gun. Tomlinson indicated that Wilson was not paying

       attention to Butler, and once inside her apartment, she informed Wilson that

       Butler was holding a gun. Throughout Butler’s jury trial, Tomlinson

       unequivocally testified that she saw Butler holding a gun and he was about

       fifteen feet from her. In addition, Tomlinson identified the gun found in

       Wilson’s apartment as the same gun she saw Butler holding.


[14]   Butler’s contention is that, Tomlinson, the State’s only eyewitness, was

       incredibly dubious in her testimony because (1) Tomlinson was the only person

       who stated that she saw him with a gun; (2) Tomlinson was in a romantic

       relationship with Dominic, thus making her testimony biased; and (3) Wilson,

       who was beside Tomlinson, did not observe him holding a gun.


[15]   Under the narrow limits of the incredible dubiosity rule, a court may impinge

       upon a jury’s function to judge the credibility of a witness. Gray v. State, 871

       N.E.2d 408, 416 (Ind. Ct. App. 2007), trans. denied. For testimony to be

       disregarded based on a finding of incredible dubiosity, it must be inherently

       contradictory, wholly equivocal, or the result of coercion. Id. Moreover, there

       must also be a complete lack of circumstantial evidence of the defendant’s guilt.

       Id. at 417. The rule is rarely applicable. Id.


[16]   The incredible dubiosity rule applies only if a witness, within her own

       testimony, contradicts herself. Butler’s arguments misapply the incredible


       Court of Appeals of Indiana | Memorandum Opinion 34A04-1512-CR-2238 | August 31, 2016   Page 7 of 15
       dubiosity rule by speculating about Tomlinson’s motive or bias, and the fact

       that Tomlinson’s testimony was contradicted by Wilson, who testified that she

       did not see Butler with a gun. Notwithstanding his claims, we find that the

       evidence supporting Butler’s possession of a firearm is sufficient to support

       Butler’s guilt.


[17]   Possession of a handgun may be established through either actual or

       constructive possession. Wallace v. State, 722 N.E.2d 910, 913 (Ind. Ct. App.

       2000). Actual possession occurs when a person has direct physical control over

       an item. Id. Constructive possession occurs when a person has both the intent

       and the capability to maintain dominion and control over the item. Id.


[18]   Here, the State presented sufficient evidence beyond a reasonable doubt to

       establish constructive possession. Constructive possession can be established if

       the defendant has both the intent and the capability to maintain dominion and

       control over the item. Gee v. State, 810 N.E.2d 338, 340 (Ind. 2004). The proof

       of a possessory interest in the premises on which the item is found is adequate

       to show the capability to maintain dominion and control over the item in

       question. Id. In essence, the law infers that the party in possession of the

       premises is capable of exercising dominion and control over all items on the

       premises. Id. at 340-41. And this is so whether possession of the premises is

       exclusive or not. Id. Here, we find that, even though Butler shared an

       apartment with Wilson and her two children, Butler had a possessory interest in

       the house because he lived there. Butler was capable of maintaining dominion

       and control over the gun because the gun was recovered from the bedroom he

       Court of Appeals of Indiana | Memorandum Opinion 34A04-1512-CR-2238 | August 31, 2016   Page 8 of 15
       shared with Wilson. As such, the State established the capability prong of

       constructive possession.


[19]   However, when a defendant’s possession of the premises where the item is

       found is not exclusive, then the inference of intent to maintain dominion and

       control over the item must be supported by additional circumstances pointing to

       the defendant’s knowledge of the nature of the item and its presence. Id. The

       “additional circumstances” can be shown by various means: (1) incriminating

       statements made by the defendant, (2) attempted flight or furtive gestures, (3)

       location of substances like drugs in settings that suggest manufacturing, (4)

       proximity of the item to the defendant, (5) location of the item within the

       defendant’s plain view, and (6) the mingling of the item with other items owned

       by the defendant. Id.


[20]   At Butler’s jury trial, the State introduced a picture of Wilson’s bedroom as

       Exhibit 2. Wilson testified, “[T]hat’s my bedroom, that’s my bed and that’s the

       gun that they found.” (Tr. p. 161). In addition, Wilson testified that the last

       time she saw Butler, he was in her bedroom. Also, the jury heard evidence that

       the gunshots originated from Wilson’s apartment, and that Dominic informed

       Wilson that it was Butler who fired the shots. In light of the evidence that

       Butler was last seen in Wilson’s bedroom, the gunshots originated from

       Wilson’s apartment, and the fact that the gun was found under his bedroom

       mattress, Butler’s living quarters, we conclude that Butler was capable of

       maintaining dominion and control over the gun.



       Court of Appeals of Indiana | Memorandum Opinion 34A04-1512-CR-2238 | August 31, 2016   Page 9 of 15
[21]   Based on the foregoing, we conclude that the State proved specific facts that

       provided a solid basis to support a reasonable inference that Butler possessed

       the gun, and we therefore reject Butler’s claim that there was insufficient

       evidence.


                                             II. Inappropriate Sentence 1


[22]   Ind. Appellate Rule 7(B) empowers us to independently review and revise

       sentences authorized by statute if, after due consideration, we find the trial

       court's decision inappropriate in light of the nature of the offense and the

       character of the offender. Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007). The

       “nature of offense” compares the defendant’s actions with the required showing

       to sustain a conviction under the charged offense, Cardwell v. State, 895 N.E.2d

       1219, 1224 (Ind. 2008), while the “character of the offender” permits a broader

       consideration of the defendant's character. Douglas v. State, 878 N.E.2d 873,

       881 (Ind. Ct. App. 2007). An appellant bears the burden of showing both

       prongs of the inquiry favor revision of his sentence. Childress v. State, 848




       1
         Pursuant to Indiana Administrative Rule 9(G)(2)(b) and Indiana Code section 35-38-1-13, the presentence
       investigation (PSI) report must be excluded from public access. However, in this case, the information
       contained in the PSI report “is essential to the resolution” of Butler’s claim on appeal. Ind. Admin. Rule
       9(G)(7)(a)(ii)(c). Accordingly, we have included confidential information in this decision only to the extent
       necessary to resolve the appeal

       Court of Appeals of Indiana | Memorandum Opinion 34A04-1512-CR-2238 | August 31, 2016            Page 10 of 15
       N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as appropriate 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 a myriad of other

       considerations that come to light in a given case. Cardwell, 895 N.E.2d at 1224.


[23]   The advisory sentence is the starting point the legislature has selected as an

       appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,

       1019 (Ind. 2012). The sentencing range for a Level 4 felony is two to twelve

       years, with an advisory sentence of six years. Ind. Code § 35-50-2-5.5. In the

       instant case, the trial court sentenced Butler to ten years for unlawful possession

       of a firearm by an SVF, a Level 4 felony.


[24]   Butler’s appellate brief does not make a proper argument challenging his

       sentencing based on his character and nature of the offense. Accordingly, he

       has waived this argument on appeal. Ind. Appellate Rule 46(A)(8)(a). Waiver

       notwithstanding, Butler’s claims fail.


[25]   With respect to the nature of the offense, after Wilson confronted Butler about

       taking Dominic’s money, Butler beat and choked Wilson. Butler again choked

       Wilson with a pillow when she tried to escape. Finally, when Wilson fled from

       her house and was walking to Tomlinson’s house for safety, Butler met them

       and he was holding a gun. Butler’s armed pursuit of Wilson does not render his

       sentence inappropriate.


[26]   With respect to his character, Butler’s entire adult life has been spent

       committing crimes. Butler’s criminal history began in 1995 when he was

       Court of Appeals of Indiana | Memorandum Opinion 34A04-1512-CR-2238 | August 31, 2016   Page 11 of 15
charged with operating a motor vehicle without receiving a license. In the same

year, he was charged with resisting law enforcement, but that charge was later

dismissed. In the following year, 1996, Butler was charged with theft. Two

other outstanding charges for disorderly conduct against Butler were later

dismissed pursuant to his guilty plea to theft. The PSI shows that Butler’s theft

probation was revoked twice. In December of 1997, Butler was convicted of

false informing and he was placed on probation for one year. In 1998, Butler

pleaded guilty to possessing marijuana and he received another year of

probation. In the same month, Butler was charged with dealing in a narcotic

drug and he was sentenced to ten years, with six years executed and the

remainder suspended to probation. In 2001, Butler was charged with operating

a vehicle without having a license and was placed on one year of unsupervised

probation. In March of 2002, Butler was again convicted of operating a motor

vehicle without having been licensed and was sentenced to ten days in jail. In

June of 2002, Butler was charged with resisting law enforcement and was

sentenced to six months of unsupervised probation. In September of 2002,

Butler was charged with domestic battery and false informing, but those charges

were dismissed pursuant to a plea agreement in another cause. In October of

2002, Butler was convicted of possessing cocaine and was sentenced to three

years in the DOC. Two years of Butler’s previously-suspended drug dealing

sentence were revoked based on Butler’s cocaine-possession conviction.

Between 2004 and 2005, Butler was charged with resisting law enforcement,

domestic battery, and false informing. In June 2005, Butler was charged with

possessing marijuana and was sentenced to two years in the DOC with one year
Court of Appeals of Indiana | Memorandum Opinion 34A04-1512-CR-2238 | August 31, 2016   Page 12 of 15
       suspended to probation. In July of 2006, a petition to revoke Butler’s

       marijuana-possession sentence was filed. Later that month, Butler was charged

       with domestic battery. In May of 2007, Butler was again charged with

       domestic battery. In November of 2007, Butler was charged and convicted of

       three Counts of dealing in cocaine, and was sentenced to twelve years in the

       DOC. In 2013, Butler was charged with driving with a suspended license. That

       same month, Butler was charged with criminal trespass and was sentenced to

       one year. Shortly before Butler committed the instant crimes, he was charged

       with unlawful possession of a firearm by an SVF and resisting law enforcement.


[27]   At Butler’s sentencing hearing, the trial court stated that it could not ignore

       Butler’s extensive criminal history. Despite the fact that Butler has received

       lenient sentences in the past, including suspended sentences, fines, and

       probation, none of these measures were sufficient to deter him from committing

       the present offense. Accordingly, we decline to exercise our authority under

       Appellate Rule 7(B) to revise Butler’s ten-year sentence in relation to unlawful

       possession of a firearm by an SVF.


                                   III. Habitual Offender Enhancement

[28]   Lastly, Butler argues, and the State agrees, that the trial court, treated the

       habitual offender enhancement as a separate sentence to be served

       consecutively to his other ten-year sentence.


[29]   We note that habitual offender is a status that results in an enhanced sentence.

       I.C. § 35-50-2-8(j). A habitual offender finding does not constitute a separate


       Court of Appeals of Indiana | Memorandum Opinion 34A04-1512-CR-2238 | August 31, 2016   Page 13 of 15
       crime nor does it result in a separate sentence. Davis v. State, 935 N.E.2d 1215,

       1218 (Ind. Ct. App. 2010), trans. denied. When imposing a habitual offender

       enhancement, the trial court is required to “‘attach the habitual offender

       enhancement to the felony conviction with the highest sentence imposed and

       specify which felony count is being enhanced.’” State v. Arnold, 27 N.E.3d 315,

       321 (Ind. Ct. App .2015) (quoting I.C. § 35-50-2-8(j)), trans. denied.


[30]   The abstract of judgment lists a separate sentence for the habitual offender

       count and does not attach the habitual offender enhancement to Butler’s

       sentences of strangulation, domestic battery or unlawful possession of a firearm

       by an SVF. Because the trial court did not specify which of Butler’s convictions

       was enhanced by his habitual offender adjudication, we remand and instruct the

       trial court to revise the sentencing statement to reflect which conviction is

       enhanced.


                                               CONCLUSION


[31]   In light of the foregoing, we conclude that (1) there was sufficient evidence to

       support Butler’s possession of a firearm; (2) Butler’s sentence for unlawful

       possession of a firearm by an SVF is not inappropriate in light of the nature of

       the offense and his character; and (3) we remand and instruct the trial court to

       revise the sentencing order to indicate which conviction is enhanced by Butler’s

       habitual offender adjudication.


[32]   Affirmed and remanded with instructions.



       Court of Appeals of Indiana | Memorandum Opinion 34A04-1512-CR-2238 | August 31, 2016   Page 14 of 15
[33]   Bailey, J. and Barnes, J. concur




       Court of Appeals of Indiana | Memorandum Opinion 34A04-1512-CR-2238 | August 31, 2016   Page 15 of 15
