MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                       FILED
regarded as precedent or cited before any
court except for the purpose of establishing                      May 11 2017, 5:44 am

the defense of res judicata, collateral                                CLERK
                                                                   Indiana Supreme Court
estoppel, or the law of the case.                                     Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Alan K. Wilson                                          Curtis T. Hill, Jr.
Muncie, Indiana                                         Attorney General of Indiana

                                                        Caryn N. Szyper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jason C. Amonett,                                       May 11, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A04-1609-CR-2126
        v.                                              Appeal from the Delaware Circuit
                                                        Court
State of Indiana,                                       The Honorable Linda Ralu Wolf,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        18C03-1205-FA-9



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A04-1609-CR-2126 | May 11, 2017        Page 1 of 10
                                             Case Summary
[1]   Jason Amonett appeals his convictions and sentence for Class A felony dealing

      in a schedule II controlled substance within 1,000 feet of a youth program

      center, Class C felony possession of a controlled substance, and Class A

      misdemeanor possession of paraphernalia. We affirm.


                                                    Issues
[2]   Amonett raises three issues, which we restate as:


                    I.         whether the trial court properly admitted
                               evidence of marijuana and oxycodone found
                               during a search of Amonett’s house;

                   II.         whether the trial court properly admitted
                               Amonett’s statement to police; and

                  III.         whether the forty-year sentence is
                               inappropriate.


                                                     Facts
[3]   On May 1, 2012, Officer Michael Nickens with the Muncie Police Department

      arranged for a confidential informant to participate in a controlled drug buy at

      Amonett’s residence. The confidential informant was given buy money, which

      had been photographed, and was fitted with audio/video recording equipment.

      At Amonett’s residence, the confidential informant used buy money to

      purchase morphine. The next day, the same confidential informant again

      participated in a controlled drug buy at Amonett’s residence. The confidential

      informant again used buy money to purchase morphine.

      Court of Appeals of Indiana | Memorandum Decision 18A04-1609-CR-2126 | May 11, 2017   Page 2 of 10
[4]   Two hours after the last controlled buy, the police executed a search warrant for

      Amonett’s residence. Amonett and Sarah Lipscomb were taken into custody.

      Money from the second controlled buy was recovered from the residence along

      with significant amounts of morphine, some marijuana, four oxycodone pills,

      and paraphernalia. Amonett waived his Miranda rights and was interviewed by

      officers. Amonett admitted that he had been dealing pills out of his residence

      since December 2011 and that he could be making $30,000 per month if he and

      Lipscomb were not also using the pills.


[5]   The State charged Amonett with: Count I, Class A felony dealing in a schedule

      II controlled substance within 1,000 feet of a youth program center for

      Amonett’s actions on May 1; Count II, Class A felony dealing in a schedule II

      controlled substance within 1,000 feet of a youth program center for Amonett’s

      actions on May 2; Count III, Class C felony possession of a controlled

      substance (Opana); Count IV, Class C felony possession of a controlled

      substance (morphine); and Count V, Class A misdemeanor possession of

      paraphernalia. The State later moved to dismiss Count III, which the trial court

      granted. At Amonett’s jury trial, the trial court admitted both the marijuana

      and the oxycodone that were found in Amonett’s house even though he was not

      charged with possession of either substance. The trial court also admitted the

      recording of Amonett’s statement to the officers. The jury was unable to reach

      a verdict on Count I but found Amonett guilty as charged of Counts II, IV, and

      V. The trial court sentenced Amonett to forty years for Count II, six years for




      Court of Appeals of Indiana | Memorandum Decision 18A04-1609-CR-2126 | May 11, 2017   Page 3 of 10
      Count IV, and one year for Count V to be served concurrently for an aggregate

      sentence of forty years. Amonett now appeals.


                                                  Analysis
                             I. Admission of Marijuana and Oxycodone

[6]   Amonett argues that the trial court erred by admitting the marijuana and

      oxycodone that were found in his residence. Amonett points out that none of

      his charges related to the marijuana or oxycodone, and he argues that the

      admission of the evidence violated Indiana Evidence Rule 404(b).


[7]   Amonett, however, failed to object on the grounds of Evidence Rule 404(b).

      When the items were offered as evidence, Amonett’s only objection was that

      the marijuana and oxycodone were “irrelevant to this proceeding.” Tr. Vol. I

      p. 242. Where a defendant fails to object to the introduction of evidence, makes

      only a general objection, or objects only on other grounds, he waives the claim.

      Moore v. State, 669 N.E.2d 733, 742 (Ind. 1996).


[8]   Waiver notwithstanding, the trial court has broad discretion to rule on the

      admissibility of evidence. Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). We

      review its rulings for abuse of that discretion. Id. We will reverse only when

      admission is clearly against the logic and effect of the facts and circumstances

      and the error affects a party’s substantial rights. Id.; Ind. Trial Rule 61. The

      improper admission of evidence is harmless if there is substantial independent

      evidence of guilt. Davis v. State, 907 N.E.2d 1043, 1056 (Ind. Ct. App. 2009).



      Court of Appeals of Indiana | Memorandum Decision 18A04-1609-CR-2126 | May 11, 2017   Page 4 of 10
[9]    Here, even if the trial court abused its discretion by admitting the marijuana and

       oxycodone found at Amonett’s residence during the search, any error was

       harmless. During an audio/video recorded controlled buy, Amonett sold

       morphine to a confidential informant. When Amonett’s residence was

       searched pursuant to the search warrant, police found substantial amounts of

       morphine and the money from the second controlled buy. The evidence

       regarding Amonett’s dealing of morphine was overwhelming. Because there

       was substantial independent evidence of Amonett’s guilt, any error in the

       admission of the marijuana and oxycodone was harmless.


                                    II. Amonett’s Statement to Police

[10]   Next, Amonett argues that the trial court abused its discretion by admitting the

       statement that he made to police. We review the trial court’s rulings on the

       admissibility of evidence for abuse of discretion. Guilmette, 14 N.E.3d at 40.

       We will reverse only when admission is clearly against the logic and effect of

       the facts and circumstances and the error affects a party’s substantial rights. Id.;

       T.R. 61. The improper admission of evidence is harmless if there is substantial

       independent evidence of guilt. Davis, 907 N.E.2d at 1056.


[11]   According to Amonett, the statement contained evidence of prior dealing

       activity rather than evidence of the May 1st or May 2nd allegations, and the

       statement was inadmissible under Indiana Evidence Rule 404(b). Amonett

       argues that the evidence was “extraordinarily prejudicial and could hardly have

       helped but turn the jurors’ attitudes against” him. Appellant’s Br. p. 10. Prior

       to trial, Amonett filed a motion to suppress the statement pursuant to Indiana
       Court of Appeals of Indiana | Memorandum Decision 18A04-1609-CR-2126 | May 11, 2017   Page 5 of 10
       Evidence Rule 404(b), which the trial court denied. At the trial, Amonett

       objected to the admission of the statement “for the reasons stated” in the

       motion to suppress, but the trial court overruled the objection. Tr. Vol. II p. 12.


[12]   The State argues, in part, that the statement was “related to an ongoing drug

       dealing operation that was the subject of the instant investigation and not prior

       unrelated conduct.” Appellee’s Br. p. 21. The State contends that the

       statement was “inextricably intertwined with the crimes charged.” Id. at 22.

       The State had alleged that Amonett was dealing morphine from his residence

       on May 1st and May 2nd. In the statement to police, Amonett admitted that he

       had been dealing morphine out of his residence since December 2011 and that

       he could be making $30,000 per month if he and Lipscomb were not also using

       the pills. Rule 404(b) does not bar evidence of uncharged criminal acts that are

       “intrinsic” to the charged offense. Kyle v. State, 54 N.E.3d 439, 444 (Ind. Ct.

       App. 2016). “Intrinsic” means “those offenses occurring at the same time and

       under the same circumstances as the crimes charged.” Id. “Evidence of such

       conduct is admissible because it does not concern ‘other’ crimes, wrongs, or

       acts, and it is not offered for the purpose of creating an inference as to the

       accused’s character or propensity.” Id. Evidence of Amonett dealing morphine

       from his residence was part of the charged crime. The evidence did not concern

       Amonett’s “other” wrongdoings and was not offered as evidence of his

       character or propensity to commit the crime. We conclude that the trial court

       did not abuse its discretion by admitting the statement.




       Court of Appeals of Indiana | Memorandum Decision 18A04-1609-CR-2126 | May 11, 2017   Page 6 of 10
[13]   Moreover, even if the trial court abused its discretion by admitting the

       statement, we conclude that any error was harmless. For the same reasons we

       discussed regarding the admission of the marijuana and oxycodone, the

       evidence regarding Amonett’s dealing of morphine was overwhelming.

       Because there was substantial independent evidence of Amonett’s guilt, any

       error in the admission of the statement was harmless.


                                        III. Inappropriate Sentence

[14]   Amonett argues that his forty-year sentence is inappropriate under Indiana

       Appellate Rule 7(B). Appellate Rule 7(B) 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

       offenses and the character of the offender. When considering whether a

       sentence is inappropriate, we need not be “extremely” deferential to a trial

       court’s sentencing decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.

       App. 2007). Still, we must give due consideration to that decision. Id. We also

       understand and recognize the unique perspective a trial court brings to its

       sentencing decisions. Id. Under this rule, the burden is on the defendant to

       persuade the appellate court that his or her sentence is inappropriate. Childress

       v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[15]   The principal role of Rule 7(B) 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.
       Court of Appeals of Indiana | Memorandum Decision 18A04-1609-CR-2126 | May 11, 2017   Page 7 of 10
       2008). We “should focus on the forest—the aggregate sentence—rather than

       the trees—consecutive or concurrent, number of counts, or length of the

       sentence on any individual count.” Id. When reviewing the appropriateness of

       a sentence under Rule 7(B), we may consider all aspects of the penal

       consequences imposed by the trial court in sentencing the defendant, including

       whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010).


[16]   Amonett makes no specific argument regarding the nature of his offenses or his

       character. Rather, the focus of Amonett’s argument is that, if he had been

       sentenced under the revised criminal code, which went into effect on July 1,

       2014, his maximum sentence would have been two and one-half years. Under

       the criminal code in effect at the time of the offense, the maximum sentence for

       Amonett’s offense was fifty years with an advisory sentence of thirty years. See

       Ind. Code § 35-50-2-4. Amonett concedes that the doctrine of amelioration

       does not apply here, but he requests that we revise his sentence to twenty years.

       We have previously rejected this argument. See Marley v. State, 17 N.E.3d 335,

       340 (Ind. Ct. App. 2014) (declining to take into consideration the lesser

       penalties of the new criminal code in addressing the appropriateness of the

       defendant’s sentence), trans. denied; Schaadt v. State, 30 N.E.3d 1, 4 (Ind. Ct.

       App. 2015) (declining to reduce the defendant’s forty-year sentence based on a

       consideration of the lesser penalties of the new criminal code), trans. denied.

       Rather, we must review Amonett’s sentence based solely on the nature of the

       offense and the character of the offender.


       Court of Appeals of Indiana | Memorandum Decision 18A04-1609-CR-2126 | May 11, 2017   Page 8 of 10
[17]   The nature of the offense is that Amonett sold morphine to a confidential

       informant from his residence. When police searched the residence, they found

       more than one hundred and fifty morphine pills and paraphernalia. Amonett

       admitted that he had been selling morphine out of his residence since December

       2011 and that he could have been making $30,000 per month if he and

       Lipscomb had not been using the pills too.


[18]   As for the character of the offender, at the time of the offense, Amonett was

       thirty-eight years old. He had accumulated a significant criminal history,

       including a 1994 conviction for minor consumption of alcohol, a 1994

       conviction for Class A misdemeanor conversion, a 1995 conviction for driving

       while suspended, a 1996 conviction for driving while suspended, a 1997

       conviction for visiting a common nuisance, a 1997 conviction for criminal

       conversion, a 1998 conviction for driving while suspended, a 2000 conviction

       for Class D felony receiving stolen property, 2001 convictions for two counts of

       Class D felony theft, a 2003 conviction for driving while suspended, 2005

       convictions for Class C felony forgery, Class D felony resisting law

       enforcement, and Class D felony receiving stolen property, a 2015 conviction

       for Class D felony theft, and a 2015 conviction for criminal conversion.


[19]   The trial court acknowledged that Amonett was remorseful, had strong family

       support, and suffered from significant health conditions. However, the trial

       court also noted that Amonett had not taken advantage of substance abuse

       treatment offered to him and that prior attempts at rehabilitation had been

       unsuccessful. Given Amonett’s significant criminal history and the ongoing

       Court of Appeals of Indiana | Memorandum Decision 18A04-1609-CR-2126 | May 11, 2017   Page 9 of 10
       morphine dealing operation that he was running out of his residence, we cannot

       say that the forty-year sentence imposed by the trial court is inappropriate.


                                                 Conclusion
[20]   Any error in the admission of the marijuana, oxycodone, or Amonett’s

       statement to police was harmless. The forty-year sentence imposed by the trial

       court is not inappropriate in light of the nature of the offense and the character

       of the offender. We affirm.


[21]   Affirmed.


       Kirsch, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A04-1609-CR-2126 | May 11, 2017   Page 10 of 10
