MEMORANDUM DECISION                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),                                Jun 20 2018, 6:33 am

this Memorandum Decision shall not be                                      CLERK
                                                                       Indiana Supreme Court
regarded as precedent or cited before any                                 Court of Appeals
                                                                            and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
Madison, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

David E. Proffitt,                                       June 20, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         40A05-1505-CR-473
        v.                                               Appeal from the Jennings Circuit
                                                         Court
State of Indiana,                                        The Honorable Jon W. Webster,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         40C01-1212-FB-48



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018            Page 1 of 18
                                        Statement of the Case
[1]   David E. Proffitt appeals his convictions following a jury trial for three counts

      of dealing in a narcotic drug, as Class B felonies. He presents four issues for

      our review:


              1.       Whether the trial court abused its discretion when it
                       admitted into evidence his statements made during two
                       interrogations.

              2.       Whether application of the incredible dubiosity rule
                       establishes that there is insufficient evidence to support his
                       convictions.

              3.       Whether the trial court committed fundamental error
                       when it admitted allegedly prejudicial character evidence.

              4.       Whether his sentence is inappropriate in light of the nature
                       of the offenses and his character.


[2]   We affirm and remand with instructions.1


                                  Facts and Procedural History
[3]   In early 2012, Jennings County Sheriff’s Lieutenant Brian Talkington received a

      phone call from a woman who claimed to be Proffitt’s sister-in-law. She told

      Lieutenant Talkington that Proffitt was getting “a lot of pills” through his wife’s



      1
        We held oral argument in this case on June 4, 2018, at the Mitchell Opera House in Mitchell, Indiana on
      the 200th anniversary of the first court hearing held in Lawrence County on June 4, 1818. We thank counsel
      for their excellent advocacy, and we thank the Lawrence County Bar Association and the Lawrence County
      Bicentennial Committee for inviting us to hold the oral argument as part of Lawrence County’s Bicentennial
      celebration.

      Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018           Page 2 of 18
      health insurance with the Federal government. Tr. Vol. III at 377. Lieutenant

      Talkington then contacted David White, a Special Agent with the Inspector

      General for the United States Department of Health and Human Services, and

      Agent White stated that he had also been contacted and informed that Proffitt

      was “receiving high volumes of prescription narcotics which seemed beyond the

      scope of medical necessity” for his personal use. Id. at 453. Agent White

      verified that information by checking a database “that basically logs all

      prescription narcotics, how they’re paid for, quantities people get, things like

      that.” Id. at 454. Accordingly, Agent White began investigating Dr. Anthony

      Mims, who had been prescribing the narcotics for Proffitt, and Lieutenant

      Talkington initiated four controlled drug buys between confidential informants

      and Proffitt.


[4]   After the last controlled buy, Lieutenant Talkington concluded that it was time

      to arrest Proffitt. Lieutenant Talkington was concerned for the safety of law

      enforcement if they were to make the arrest at his home. Proffitt had previously

      approached the local jail and offered to provide “pizzas to the inmates on a

      commissary situation [sic].” Id. at 415. Accordingly, Lieutenant Talkington

      arranged for Proffitt to come to the jail on the pretense of making arrangements

      for the pizza sales. When Proffitt arrived at the jail on December 4, 2012,

      Lieutenant Talkington, Agent White, and other law enforcement officers

      introduced themselves, told Proffitt that they were not interested in pizza sales,

      and read him his Miranda rights. Proffitt’s live-in girlfriend, Brandy Caudill,

      had accompanied him inside the jail, and Proffitt’s son waited in the car.


      Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018   Page 3 of 18
      During the first interview, Proffitt denied that he sold pills, but he

      acknowledged that he received approximately 1,000 oxycodone and

      hydrocodone pills every three months. After Agent White interrogated Proffitt,

      Lieutenant Talkington obtained a search warrant for Proffitt’s residence and a

      storage unit and placed him under arrest.


[5]   Approximately six days later, Proffitt notified jail personnel that he wanted to

      talk to “federal agents” and to “cooperate with them[.]” Id. at 422.

      Accordingly, Agent White again read Proffitt his Miranda rights and conducted

      a second interrogation of Proffitt on December 10. Proffitt again denied that he

      sold pills, but he told Agent White that Dr. Mims gave him the prescriptions in

      exchange for gift cards and silver, that Dr. Mims did not examine Proffitt

      during Proffitt’s visits, and that Proffitt would direct Dr. Mims on what

      prescriptions to write.2


[6]   The State charged Proffitt with four counts of dealing in a narcotic drug, as

      Class B felonies; conspiracy to commit dealing in a narcotic drug, as a Class B

      felony; and maintaining a common nuisance, a Class D felony. Prior to trial,

      Proffitt filed a motion to suppress evidence alleging that both of his

      interrogations were conducted under duress and in violation of his “state and




      2
        During his trial testimony, Agent White indicated that, “[a]fter Mr. Proffitt did not cooperate,” there had
      been no further investigation of Dr. Mims; that Dr. Mims had not been charged with any crime, and that
      Agent White had referred the case to a different agency. Id. at 470.

      Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018                Page 4 of 18
      federal protections against self-incrimination[.]” Appellant’s App. Vol. II at

      107. The trial court denied that motion after a hearing.


[7]   At his ensuing jury trial, the State presented as evidence the testimony of the

      two confidential informants, Emma Kiefer and Jessica Johnson; the testimony

      of Lieutenant Talkington; the testimony of Agent White; the audio recordings

      from the four controlled buys; and the audio recordings from the two

      interrogations. Proffitt presented as evidence his testimony and the testimony

      of Caudill.


[8]   At the conclusion of his trial in November 2014, the jury acquitted Proffitt of

      one count of dealing in a narcotic drug, but found him guilty of the remaining

      five counts. The trial court entered judgment of conviction accordingly, but,

      “for the purposes of sentencing only,” the court “vacated” Proffitt’s convictions

      for conspiracy to commit dealing in a narcotic drug and maintaining a common

      nuisance. Appellant’s App. Vol. III at 111 (emphasis in original). And the

      court sentenced Proffitt to an aggregate term of thirty-four years executed. This

      appeal ensued.


                                     Discussion and Decision
                                  Issue One: Admission of Statements

[9]   Proffitt first contends that the trial court abused its discretion when it admitted

      into evidence statements he made during his interrogations with law

      enforcement. Proffitt initially challenged the admission of this evidence

      through a motion to suppress but now appeals following a completed trial.

      Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018   Page 5 of 18
       Thus, the issue is appropriately framed as whether the trial court abused its

       discretion by admitting the evidence at trial. Lanham v. State, 937 N.E.2d 419,

       421-22 (Ind. Ct. App. 2010). A trial court is afforded broad discretion in ruling

       upon the admissibility of evidence, and we will reverse such a ruling only when

       the defendant has shown an abuse of discretion. Id. at 422. An abuse of

       discretion involves a decision that is clearly against the logic and effect of the

       facts and circumstances before the court. Id. We do not reweigh the evidence,

       and we consider conflicting evidence in the light most favorable to the trial

       court’s ruling. Id.


[10]   Proffitt asserts that the admission of his statements at trial violated Article 1,

       Section 14 of the Indiana Constitution, which provides that no person, in any

       criminal prosecution, shall be compelled to testify against himself. In

       particular, he maintains that his statements to law enforcement were made

       under duress and were, therefore, not voluntary. Where, as here, a defendant

       challenges the voluntariness of a confession under the Indiana Constitution, the

       State is required “to prove beyond a reasonable doubt that the defendant

       voluntarily waived his rights and that the confession was voluntarily given.”

       Malloch v. State, 980 N.E.2d 887, 901 (Ind. Ct. App. 2012). “When evaluating a

       claim that a statement was not given voluntarily, the trial court is to consider

       the totality of the circumstances, including whether there is police coercion, the

       length, location, and continuity of the interrogation, and the maturity,

       education, physical condition, and mental health of the defendant.” Id.




       Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018   Page 6 of 18
[11]   Proffitt alleges that his statements during the first interrogation were not

       voluntary because he was promised leniency when officers told him he could

       help himself and because he “was told that he had to talk, and that it was a

       federal crime to lie to law enforcement.” Appellant’s Br. at 18. We must

       disagree. While a confession is inadmissible if it was obtained by promises of

       mitigation or immunity, “vague and indefinite statements by the police that it

       would be in a defendant’s best interest if he cooperated do not render a

       subsequent confession inadmissible.” Clark v. State, 808 N.E.2d 1183, 1191

       (Ind. 2004). “Further, ‘[s]tatements by police expressing a desire that a suspect

       cooperate and explaining the crimes and penalties that are possible results are

       not specific enough to constitute either promises or threats.’” Id. (quoting

       Kahlenbeck v. State, 719 N.E.2d 1213, 1217 (Ind. 1999)). Here, while Lieutenant

       Talkington and Agent White both told Proffitt during the interviews that he

       could help himself, neither officer made any specific promises that Proffitt

       would receive a reduction in his charges or sentence. And Agent White’s

       statement that it is a federal crime to lie to a law enforcement officer was not

       specific enough to constitute a threat. The statements by the officers were an

       attempt to induce Proffitt to provide information, but they did not constitute

       promises of benefits or threats that rendered Proffitt’s statements involuntary.

       See id.


[12]   Proffitt also alleges that his statements during the first interrogation were not

       voluntary because he was worried about the well-being of his son, who was

       sitting in the car outside of the jail. But both Lieutenant Talkington and Agent


       Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018   Page 7 of 18
       White testified that Proffitt never mentioned that his son was sitting alone in the

       car. And nothing in the record persuades us that Proffitt’s statements during

       the first interview were involuntary. Officers read Proffitt his Miranda rights

       and asked Proffitt if he understood his rights, which he indicated he did. And

       Lieutenant Talkington did not observe any behavior during the ninety-minute

       interview that made him believe that Proffitt was not mentally competent.

       Rather, Lieutenant Talkington testified at the hearing on the motion to suppress

       that Proffitt appeared “quite confident.” Tr. Vol. II at 40. And, even though

       Proffitt started to sweat at one point, a nurse examined him and said he was

       “fine.” Id. Similarly, Agent White testified at the suppression hearing that

       Proffitt appeared very lucid at all times and that he was “very calm and

       coherent.” Id. at 61.


[13]   Further, even though Agent White continued to ask Proffitt about selling pills,

       Proffitt maintained his innocence and stated that he never sold any of the pills

       he had been prescribed. Indeed, Proffitt acknowledges on appeal that he “did

       not make any statements during the December 4, 2012, interrogation that were

       of significant inculpatory value.” Appellant’s Br. at 18. Proffitt’s statements

       made during the first interview were not involuntary, and the trial court did not

       abuse its discretion when it admitted those statements.


[14]   Proffitt also asserts that his statements during the second interrogation were

       involuntary because, prior to the second interrogation, he was “subjected to

       abusive action” in the jail, including being choked, tazed, and placed in an

       isolation cell. Id. at 19. He also contends that the statements were involuntary

       Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018   Page 8 of 18
       because he was “under substantial emotional and physical duress” due to the

       “anguish of not knowing the fate of his mentally handicapped child” and due to

       sickness as a result of withdrawal from narcotics. Id. at 20. Proffitt maintains

       that, under these “extraordinary circumstances, no waiver or consent can be

       considered voluntary” and the trial court should have excluded his statements

       at trial. Id.


[15]   But, again, nothing in the record convinces us that Proffitt’s statements during

       the second interview were involuntary. Proffitt initiated the second interview.

       And Proffitt was again advised of his rights and signed a waiver of rights form.

       Further, the interview was not excessive in duration as it only lasted

       approximately one hour. Additionally, Agent White testified during the

       suppression hearing that Proffitt was “very coherent” and “[v]ery calm” during

       the second interview. Tr. Vol. II at 63. Agent White also testified that Proffitt

       did not seem to be in any physical distress and that he did not notice anything

       to make him think that Proffitt was mentally or emotionally unable to answer

       the questions. Further, Agent White testified that it never appeared as though

       Proffitt was under the influence of any opiates or that he was experiencing any

       withdrawal symptoms. Because Proffitt’s statements during the second

       interrogation were not involuntary, the trial court did not abuse its discretion

       when it admitted those statements at trial.


                                 Issue Two: Sufficiency of the Evidence

[16]   Proffitt also contends that the State presented insufficient evidence to support

       his convictions. Initially, we note that the trial court entered judgment of
       Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018   Page 9 of 18
       conviction on all five counts on which the jury entered guilty verdicts. And,

       during the sentencing hearing, both parties agreed that “the conspiracy

       conviction and the maintaining a common nuisance conviction at least for the

       purposes of sentencing are to be vacated because they are part of the other

       crimes.” Tr. Vol. VI at 1054-55. Subsequently the trial court in its sentencing

       order vacated the two convictions “for purposes of sentencing only[.]”

       Appellant’s App. Vol. III at 111.


[17]   However, both the Chronological Case Summary and the abstract of judgment

       indicate that the convictions for Counts V and VI were “merged.” Appellant’s

       App. Vol. II at 18, Appellant’s App. Vol. III at 109. As such, it is apparent that

       the trial court simply merged the convictions for purposes of sentencing but did

       not vacate them. It is well settled that if a trial court enters judgment of

       conviction on a jury’s guilty verdict, “then simply merging the offenses is

       insufficient and vacation of the offense is required.” Kovats v. State, 982 N.E.2d

       409, 414-15 (Ind. Ct. App. 2013). Here, because the trial court entered

       judgment of conviction on all five of the jury’s guilty verdicts and attempted to

       “merge” two of the convictions for purposes of sentencing, we remand with

       instructions for the trial court to vacate Proffitt’s convictions for conspiracy to

       commit dealing in a narcotic drug and maintaining a common nuisance.

       Accordingly, we address only the sufficiency of the evidence to support his

       convictions for three counts of dealing in a narcotic drug.


[18]   For those convictions, Proffitt specifically contends that there was insufficient

       evidence because his convictions were based only on the testimony of Kiefer,

       Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018   Page 10 of 18
       Johnson, and Lieutenant Talkington, and he claims that the testimony from

       each of those witnesses was “incredibly dubious.” Under the incredible

       dubiosity rule, “a court will impinge on the jury’s responsibility to judge the

       credibility of witnesses only when it has confronted ‘inherently improbable’

       testimony or coerced, equivocal, wholly uncorroborated testimony of

       ‘incredible dubiosity.’” Moore v. State, 27 N.E.3d 749, 755 (Ind. 2015) (quoting

       Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994)). For the incredible dubiosity

       rule to apply, “the evidence presented must be so unbelievable, incredible, or

       improbable that no reasonable person could ever reach a guilty verdict based

       upon that evidence alone.” Wolf v. State, 76 N.E.3d 911, 916 (Ind. Ct. App.

       2017). “Application of the incredible dubiosity rule is limited to cases with very

       specific circumstances because we are extremely hesitant to invade the province

       of the jury.” Smith v. State, 34 N.E.3d 1211, 1221 (Ind. 2015). For the

       incredible dubiosity rule to apply, there must be: “1) a sole testifying witness; 2)

       testimony that is inherently contradictory, equivocal, or the result of coercion,

       and 3) a complete absence of circumstantial evidence.” Moore, 27 N.E.3d at

       756.


[19]   Here, Proffitt specifically contends that the testimony from Kiefer and Johnson

       was incredibly dubious because of their drug addictions and because they were

       coerced by the State’s threat of prosecution. And Proffitt contends that

       Lieutenant Talkington’s testimony was incredibly dubious in light of false

       statements he had given in his report and in a previous hearing. But the State




       Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018   Page 11 of 18
       contends that “the invocation of the ‘incredible dubiosity’ rule fails for a

       number of reasons.” Appellee’s Br. at 28. The State is correct.


[20]   First, there was not a “sole testifying witness.” Moore, 27 N.E.3d at 756.

       Rather, the State presented the testimony of Kiefer, Johnson, and Lieutenant

       Talkington as evidence, and each witness’ testimony was consistent with the

       testimony of the other witnesses. Further, there was not “a complete absence of

       circumstantial evidence” as the State presented circumstantial evidence that

       corroborated the witnesses’ testimony, including the audio recordings of the

       controlled buys and the pills that the confidential informants returned to the

       police officers after the buys. Id. As such, the incredible dubiosity rule does not

       apply.3 Proffitt’s arguments on appeal merely seek to have this court reassess

       the weight and credibility of the evidence, which we will not do. The State

       presented sufficient evidence to support Proffitt’s convictions.


                                        Issue Three: Character Evidence

[21]   Proffitt also contends that the trial court committed fundamental error when it

       permitted Caudill’s testimony regarding a houseguest who resided with Proffitt

       and Caudill in 2011. Proffitt acknowledges that his own counsel elicited that




       3
         For the first time at oral argument, Proffitt asserted that the incredible dubiosity rule should apply because,
       at least in regards to the last two controlled buys, Johnson was the only witness to the offense. However, the
       incredible dubiosity rule still does not apply because the State presented as evidence the audio recordings of
       the controlled buys and the pills Johnson purchased, which at least partially corroborated Johnson’s
       testimony.

       Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018                Page 12 of 18
       testimony on direct examination during his case-in-chief, but he does not assert

       a claim of ineffective assistance of counsel.


[22]   As our Supreme Court has explained:


               A claim that has been waived by a defendant’s failure to raise a
               contemporaneous objection can be reviewed on appeal if the
               reviewing court determines that a fundamental error occurred.
               The fundamental error exception is extremely narrow, and
               applies only when the error constitutes a blatant violation of
               basic principles, the harm or potential for harm is substantial,
               and the resulting error denies the defendant fundamental due
               process. The error claimed must either make a fair trial
               impossible or constitute clearly blatant violations of basic and
               elementary principles of due process. This exception is available
               only in egregious circumstances.


       Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (quotation marks and citations

       omitted). “To prove fundamental error,” the appellant must show “that the

       trial court should have raised the issue sua sponte . . . .” Taylor v. State, 86

       N.E.3d 157, 162 (Ind. 2017).


[23]   Specifically, Proffitt maintains that Caudill’s testimony that Proffitt and the

       houseguest had showered together, that the houseguest had requested a sexual

       encounter with Proffitt and Caudill, and that the houseguest’s mother

       threatened to call law enforcement to report that Proffitt had raped the

       houseguest unduly prejudiced him in violation of Indiana Evidence Rule

       404(b). Proffitt contends that the “overwhelming prejudicial effect of Caudill’s

       testimony was to invite the jury to speculate as to Proffitt’s character.”


       Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018   Page 13 of 18
       Appellant’s Br. at 26. He further asserts that “[s]uch a salacious innuendo

       planted in the minds of a jury cannot be harmless and inevitably would have

       directly or indirectly affected the jury’s view of the evidence and consideration

       of the issues.” Id. at 27.


[24]   But, as noted above, Proffitt’s own counsel elicited the challenged testimony

       from Caudill. Accordingly, Proffitt has invited the error, if any. The invited

       error doctrine forbids a party from taking advantage of an error that he

       “commits, invites, or which is the natural consequence of [his] own neglect or

       misconduct.” Brewington v. State, 7 N.E.3d 946, 975 (Ind. 2014) (quoting Wright

       v. State, 828 N.E.2d 904, 907 (Ind. 2005)). And “‘invited error is not

       fundamental error’ and is not subject to appellate review[.]” Cole v. State, 28

       N.E.3d 1126, 1136 (Ind. Ct. App. 2015) (quoting Kingery v. State, 659 N.E.2d

       490, 494 (Ind. 1995)). Because any error in the court’s admission of Caudill’s

       testimony was invited by Proffitt, his fundamental error claim fails.


                                           Issue Four: Sentencing

[25]   Finally, Proffitt contends that his sentence in inappropriate in light of the nature

       of the offenses and his character. Indiana Appellate Rule 7(B) provides that

       “[t]he Court may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, the Court finds that the sentence is

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

       offender.” The Indiana Supreme Court has recently explained that:


               The principal role of appellate review should be to attempt to
               leaven the outliers . . . but not achieve a perceived “correct”
       Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018   Page 14 of 18
               result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
               2008). Defendant has the burden to persuade us that the
               sentence imposed by the trial court is inappropriate. Anglemyer v.
               State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007),
               decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).


       Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).


[26]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we

       regard a sentence as inappropriate at the end of the day turns on “our sense of

       the culpability of the defendant, the severity of the crime, the damage done to

       others, and myriad other factors that come to light in a given case.” Id. at 1224.

       The question is not whether another sentence is more appropriate, but rather

       whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

       268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] 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).


[27]   Proffitt was convicted of three counts of dealing in a narcotic drug, as Class B

       felonies. The sentencing range for a Class B felony is six years to twenty years,

       with an advisory sentence of ten years. Ind. Code § 35-50-2-4.5 (2018). Here,

       the trial court identified as mitigating factors the fact that Proffitt had completed

       many self-help programs while incarcerated and he had been gainfully
       Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018   Page 15 of 18
       employed for most of his adult life. And the trial court identified the following

       aggravating factors: Proffitt’s criminal history, which includes twenty-seven

       felony charges and eighteen misdemeanor charges that resulted in two felony

       convictions and four misdemeanor convictions; that Proffitt was stealing

       taxpayer funds when he dealt drugs paid for by taxpayers; that Proffitt has no

       high school diploma or GED; that Proffitt has had his probation revoked once;

       that there have been several incidents of jail misconduct; that Proffitt’s children

       were in his home during the drug transactions; and that Proffitt’s dealing

       operation was an “ongoing and large scale operation.” Appellant’s App. Vol.

       III at 112. Accordingly, the trial court sentenced Proffitt to an aggregate term

       of thirty-four years with the Department of Correction.


[28]   Proffitt maintains that his sentence is inappropriate in light of the nature of the

       offenses because there was “no evidence that anyone was directly injured or

       harmed by any conduct Proffitt is alleged to have engaged in.” Appellant’s Br.

       at 30. He also asserts that there was no “evidence of violence, substantial

       quantity or prolonged duration[.]” Id. But the evidence shows that Proffitt

       obtained one thousand oxycodone and hydrocodone pills every three months

       and that he would sell those narcotics to individuals within his community. As

       such, he has contributed to the opioid epidemic. Additionally, Proffitt used his

       wife’s government insurance to purchase the pills. And, as the trial court

       found, Proffitt’s children were present in the home during the drug transactions.

       We cannot say that Proffitt’s sentence is inappropriate in light of the nature of

       the offenses.


       Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018   Page 16 of 18
[29]   Proffitt also contends that his sentence is inappropriate in light of his character

       because he was a forty-five-year-old man with “serious medical issues.” Id. at

       28. He also contends that he “had taken advantage of every option available to

       improve his life” and that his “behavior and conduct while incarcerated

       demonstrate a desire to return to a lawful lifestyle as a productive member of

       society.” Id. But Proffitt has not demonstrated that his sentence is

       inappropriate in light of his character. Proffitt has a criminal history that

       includes two prior felony convictions and four prior misdemeanor convictions.

       Additionally, he has had his probation revoked once and he has violated jail

       rules on at least three occasions. Accordingly, we conclude that Proffitt’s

       sentence is not inappropriate and we affirm his sentence.


                                                   Conclusion

[30]   In sum, we hold as follows: the trial court did not abuse its discretion when it

       admitted into evidence statements Proffitt made during two interrogations

       because those statements were not involuntary; the incredible dubiosity rule

       does not apply because there was more than one testifying witness and because

       there was not a complete lack of corroborating evidence; the trial court did not

       commit fundamental error when it admitted Caudill’s testimony because

       Proffitt invited any error; and Proffitt’s sentence is not inappropriate in light of

       the nature of the offenses and his character. But we remand with instructions

       for the trial court to vacate Proffitt’s convictions for conspiracy to commit

       dealing in a narcotic drug and maintaining a common nuisance.


[31]   Affirmed and remanded with instructions.
       Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018   Page 17 of 18
May, J., and Brown, J., concur.




Court of Appeals of Indiana | Memorandum Decision 40A05-1505-CR-473 | June 20, 2018   Page 18 of 18
