MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                              Aug 30 2018, 9:50 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Valerie K. Boots                                         Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Maurice Webster,                                         August 30, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-336
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Stanley E. Kroh,
Appellee-Plaintiff                                       Magistrate
                                                         Trial Court Cause No.
                                                         49G03-1705-F5-18429



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-336 | August 30, 2018                  Page 1 of 10
                                             Case Summary
[1]   Maurice Webster appeals his convictions, following a jury trial, for level 5

      felony leaving the scene of an accident resulting in death and class C

      misdemeanor operating a vehicle with a schedule I or II controlled substance or

      its metabolite in the body. He contends that the State presented insufficient

      evidence to support his class C misdemeanor conviction. He also asserts that

      the trial court abused its discretion during sentencing and that his five-year

      aggregate sentence, with one year suspended to probation, is inappropriate in

      light of the nature of the offenses and his character. Finding the evidence

      sufficient, no abuse of discretion, and that Webster has not met his burden to

      show that his sentence is inappropriate, we affirm.


                                 Facts and Procedural History
[2]   On May 13, 2017, beginning at 4:30 p.m., Webster was at his brother’s house.

      While there, he drank four beers. He smoked marijuana at around 7:00 p.m.

      He left his brother’s house around 8:30 p.m. At approximately 9:45 p.m.,

      Webster was driving his truck north in the far-right lane around the 2300 block

      of Illinois Street in downtown Indianapolis. As he was approaching 24th

      Street, Webster noticed that the two cars in front of him were slowing down.

      Webster did not slow down, but instead moved over into the left lane to pass

      the other vehicles. Webster’s vehicle struck ninety-year-old Marion Jones as

      she was crossing the street. Although he knew he had hit a pedestrian, Webster

      did not stop but instead drove to his daughter’s house which was nearby. The



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-336 | August 30, 2018   Page 2 of 10
      other motorists remained at the scene and called 911. Jones died at the scene

      from her injuries caused by the accident.


[3]   After the accident, Webster bought a pint of vodka and walked around the

      canal drinking. At around 3:00 a.m. the next morning, Webster turned himself

      in to authorities at the Marion County Jail. He was transported to Eskenazi

      Hospital, where he consented to a blood draw. Subsequent testing of his blood

      indicated the presence of THC and its metabolite.


[4]   The State charged Webster with level 5 felony leaving the scene of an accident

      resulting in death, level 5 felony driving while suspended, class C misdemeanor

      operating a vehicle with a schedule I or II controlled substance or its metabolite

      in the body, and class C misdemeanor operating a vehicle while intoxicated.

      Prior to trial, the State dismissed the driving while suspended charge. A jury

      trial was held on December 7 and 8, 2017. At the close of the State’s evidence,

      the State dismissed the operating while intoxicated charge. The jury found

      Webster guilty of the remaining two charges. The trial court sentenced Webster

      to five years executed with one year suspended to probation for level 5 felony

      leaving the scene of an accident resulting in death. The court imposed a

      concurrent sentence of sixty days for the class C misdemeanor operating a

      vehicle with a schedule I or II controlled substance or its metabolite in the

      body. This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-336 | August 30, 2018   Page 3 of 10
                                     Discussion and Decision

      Section 1 – The State presented sufficient evidence to support
      Webster’s conviction for operating a vehicle with a schedule I
         or II controlled substance or its metabolite in the body.
[5]   Webster first contends that the State presented insufficient evidence to support

      his conviction for class C misdemeanor operating a vehicle with a schedule I or

      II controlled substance or its metabolite in his body. When reviewing a claim

      of insufficient evidence, we neither reweigh the evidence nor assess witness

      credibility. Bell v. State, 31 N.E.3d 495, 499 (Ind. 2015). We look to the

      evidence and reasonable inferences drawn therefrom that support the

      conviction, and will affirm if there is probative evidence from which a

      reasonable factfinder could have found the defendant guilty beyond a

      reasonable doubt. Id. In short, if the testimony believed by the trier of fact is

      enough to support the conviction, then the reviewing court will not disturb it.

      Id. at 500.


[6]   Regarding the challenged conviction, the State was required to prove that

      Webster operated a vehicle with a controlled substance listed in schedule I or

      schedule II of Indiana Code Section 35-48-2 or its metabolite in his body. Ind.

      Code § 9-30-5-1(c). The parties stipulated that the active ingredient in

      marijuana, THC, is listed as a schedule I controlled substance. Webster

      concedes that the State presented evidence that a blood test conducted five to

      six hours after the accident showed the presence of THC and its metabolite in

      his blood. Webster maintains, however, that the State presented insufficient

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-336 | August 30, 2018   Page 4 of 10
      evidence that such substances were in his body when he operated a vehicle. We

      disagree.


[7]   Webster admitted in his own trial testimony that he smoked marijuana at his

      brother’s house earlier in the evening before the accident. In addition, Sergeant

      Michael Duke testified that he interviewed Webster at the hospital just prior to

      the blood draw and that, in response to a specific question regarding whether he

      had ingested any alcohol or drugs, Webster told Sergeant Duke that he drank

      beer and smoked marijuana at his brother’s house before the accident. Webster

      also told Sergeant Duke that he walked around drinking vodka after the

      accident.


[8]   On appeal, Webster argues that the State failed to present toxicology evidence

      connecting the marijuana he smoked before the accident to the THC and its

      metabolite detected in his blood five to six hours after the accident, and thus

      there is no evidence that he had THC or its metabolite in his body when he was

      driving. Indeed, Webster argues that his trial testimony suggests that he also

      smoked marijuana after the accident1 and that it could have been THC and its

      metabolite from this marijuana that was detected in his blood. However,

      Webster made no claim to Sergeant Duke that he also smoked marijuana after

      the accident. It was the jury’s prerogative to resolve any conflicts in the




      1
       Webster’s testimony in this regard was equivocal at best. When specifically asked by his own counsel if he
      smoked marijuana after the accident, Webster replied, “I don’t recall.” Tr. Vol. 3. at 30. When asked again
      about whether he also smoked marijuana while he was walking around drinking alcohol after the accident,
      Webster testified, “I probably took a hit of something. I’m not quite sure.” Id.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-336 | August 30, 2018                  Page 5 of 10
      evidence and to judge the credibility of Webster’s trial testimony in light of his

      statement on the night of the accident. See McAlpin v. State, 80 N.E.3d 157, 163

      (Ind. 2017) (noting that we trust juries to make inferential decisions and to sort

      out conflicting evidence in searching for the truth) (citations omitted). Based on

      the evidence presented, the jury could reasonably infer that the THC and its

      metabolite detected in Webster’s blood five to six hours after the accident was

      from marijuana that he admitted to smoking prior to the accident, and therefore

      was in his blood at the time he was driving. There is sufficient evidence to

      support Webster’s conviction for operating a vehicle with a schedule I or II

      controlled substance or its metabolite in his body.


       Section 2 – The trial court did not abuse its discretion during
                                sentencing.
[9]   Webster next argues that the trial court abused its discretion during sentencing.

      Sentencing decisions rest within the sound discretion of the trial court and are

      reviewed only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482,

      490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. An abuse of discretion occurs

      if the decision is “clearly against the logic and effect of the facts and

      circumstances before the court, or the reasonable, probable, and actual

      deductions to be drawn therefrom.” Id. A trial court abuses its discretion if it:

      (1) fails “to enter a sentencing statement at all”; (2) enters “a sentencing

      statement that explains reasons for imposing a sentence—including a finding of

      aggravating and mitigating factors if any—but the record does not support the

      reasons”; (3) enters a sentencing statement that “omits reasons that are clearly

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-336 | August 30, 2018   Page 6 of 10
       supported by the record and advanced for consideration”; or (4) considers

       reasons that “are improper as a matter of law.” Id. at 490-91. However, the

       relative weight or value assignable to reasons properly found, or those which

       should have been found, is not subject to review for abuse of discretion. Id.


[10]   The trial court found Webster’s remorse and the undue hardship his

       incarceration would place on his children to be mitigating factors. He claims

       that the court abused its discretion in failing to also find his act of turning

       himself in after the accident, albeit delayed, to be mitigating factor. It is well

       settled that a trial court is under no obligation to explain why a proposed

       mitigator does not exist or why the court gave it insignificant weight. Sandleben

       v. State, 22 N.E.3d 782, 796 (Ind. Ct. App. 2014), trans. denied (2015). It is

       understandable here why the trial court may not have found Webster’s

       surrender to be a significant mitigating factor. As noted by the State, by the

       time Webster turned himself in several hours after the accident, authorities had

       already obtained information from eyewitnesses who stayed on the scene, were

       able to locate Webster’s vehicle, and were able to determine that it had been

       involved in the accident. Thus, Webster’s prosecution was inevitable and not

       necessarily facilitated by him. Moreover, Webster’s conscious decision to wait

       several hours before going to authorities caused undue evidentiary problems for

       the State because of the delayed testing of Webster’s blood for alcohol and

       controlled substances, prompting the State’s dismissal of the operating while

       intoxicated charge. Under the circumstances, the trial court did not abuse its

       discretion in failing to find Webster’s act to be a significant mitigating factor.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-336 | August 30, 2018   Page 7 of 10
          Section 3 – Webster has not met his burden to demonstrate
                      that his sentence is inappropriate.
[11]   Webster also claims that his sentence is inappropriate and invites this Court to

       reduce it pursuant to Indiana Appellate Rule 7(B), which provides that we may

       revise a sentence authorized by statute if, after due consideration of the trial

       court’s decision, we find that the sentence “is inappropriate in light of the

       nature of the offense and the character of the offender.” The defendant bears

       the burden to persuade this Court that his or her sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). 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 v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).

       The principal role of appellate review is to attempt to “leaven the outliers.” Id.

       at 1225. 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 facts that come to light in a given

       case.” Id. at 1224.


[12]   We consider all aspects of the penal consequences imposed by the trial court in

       sentencing the defendant, including whether a portion of the sentence is ordered

       suspended “or otherwise crafted using any of the variety of sentencing tools

       available to the trial judge.” Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.

       2010). In conducting our review, we do not look to see whether the defendant’s

       sentence is appropriate or “if another sentence might be more appropriate;

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-336 | August 30, 2018   Page 8 of 10
       rather, the question is whether the sentence imposed is inappropriate.” Fonner

       v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007).


[13]   Regarding the nature of the offense, the advisory sentence is the starting point

       that the legislature has selected as an appropriate sentence for the crime

       committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range

       for a level 5 felony is between one and six years, with the advisory sentence

       being three years. Ind. Code § 35-50-2-6(b). The trial court here imposed a

       five-year sentence, with one year suspended to probation for the level 5 felony.2


[14]   Webster argues that the nature of his offense, leaving the scene of a fatal

       accident, was not especially egregious and thus he was not deserving of a

       sentence above the advisory. However, it is undisputed that Webster operated

       a vehicle after consuming alcohol and smoking marijuana, and he struck a

       pedestrian, resulting in horrific injuries and death. We are not persuaded that

       the nature of this offense warrants sentence reduction.


[15]   We are similarly unpersuaded after a review of Webster’s character. The

       character of the offender is found in what we learn of the offender’s life and

       conduct. Croy v. State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). Included in

       the assessment of a defendant’s character is a review of his criminal history.

       Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied (2016).

       A record of arrests is also relevant to a trial court’s assessment of the


       2
        Webster does not address the appropriateness of his concurrent sixty-day sentence for his class C
       misdemeanor, and neither do we.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-336 | August 30, 2018                   Page 9 of 10
       defendant’s character. Cotto v. State, 829 N.E.2d 520, 528 (Ind. 2005). Webster

       has a lengthy criminal history spanning almost thirty years. While not replete

       with serious crimes or a significant number of convictions, his numerous arrests

       show a clear pattern of alcohol and substance abuse. Webster admits to regular

       marijuana use, and in the instant case, rather than stay at the scene of the

       accident and offer his assistance, he selfishly fled and drank a pint of vodka.

       Webster’s conduct does not reflect positively on his character. In sum, he has

       not met his burden to demonstrate that the sentence imposed by the trial court

       is inappropriate in light of the nature of the offenses or his character.


[16]   Affirmed.


       Najam, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-336 | August 30, 2018   Page 10 of 10
