MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any
                                                                        Jun 04 2020, 11:34 am
court except for the purpose of establishing
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                                   ATTORNEY FOR APPELLEE
Aubrey J. Crist                                          Matthew B. MacKenzie
Beasley & Gilkison, LLP                                  Deputy Attorney General
Muncie, Indiana                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kenneth Garretson,                                       June 4, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2750
        v.                                               Appeal from the Wayne Circuit
                                                         Court
State of Indiana,                                        The Honorable David Kolger,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         89C01-1805-F2-12



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2750 | June 4, 2020                      Page 1 of 13
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Kenneth Garretson (Garretson), appeals following his

      conviction for possession of methamphetamine, a Level 4 felony, Ind. Code §

      35-48-4-6.1(c), and his admission to being an habitual offender, I.C. § 35-50-2-8.


[2]   We affirm.


                                                   ISSUES
[3]   Garretson presents the court with two issues, which we restate as the following:


              (1) Whether the trial court abused its discretion when it admitted
                 certain evidence; and


              (2) Whether the trial court abused its discretion when it
                 identified and weighed the mitigating circumstances at
                 sentencing.


                      FACTS AND PROCEDURAL HISTORY
[4]   On May 18, 2018, around 3:00 a.m., Office Ryan Gray (Officer Gray) of the

      Richmond Police Department was on patrol in his cruiser when he observed a

      red Geo Tracker driving straight toward him going the wrong way down South

      A Street, which had been reduced to one lane due to construction. Officer Gray

      activated his emergency lights, and the driver of the Geo Tracker, later

      identified as Michael Mengedoht (Mengedoht), pulled off into a parking lot to

      avoid hitting Officer Gray’s vehicle. Officer Gray initiated a traffic stop. From

      his vantage point, Officer Gray could see Mengedoht and his passenger,

      Garretson, moving around in the front seat.
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2750 | June 4, 2020   Page 2 of 13
[5]   Officer Gray approached Garretson’s passenger-side window. Garretson would

      not make eye contact with Officer Gray, but he eventually rolled down his

      window. Officer Gray immediately detected the odor of raw marijuana, and he

      observed loose marijuana and rolling papers on Mengedoht’s lap. Garretson

      provided Officer Gray with a name which the officer determined through a

      database check was false. Officer Gray removed Mengedoht and Garretson

      from the vehicle and searched it. Officer Gray discovered 15.81 grams of

      methamphetamine in a baggie hidden under the rubber boot cover protecting

      the vehicle’s gear shift.


[6]   After discovering the methamphetamine, Mengedoht and Garretson were

      separated and provided with their Miranda advisements. Mengedoht denied

      ownership of the methamphetamine and invoked his right to counsel. Officer

      Gray questioned Garretson, who initially denied ownership of the

      methamphetamine. After Officer Gray asked Garretson again about the

      methamphetamine, Garretson told the officer that it was his, he had hidden it

      under the rubber boot without Mengedoht’s knowledge, and that they had

      travelled to Dayton, Ohio, earlier in the day to procure the methamphetamine.

      After Garretson had made these admissions, Officer Gray asked Garretson why

      he and Mengedoht were in Richmond so early in the morning. Garretson

      stated that he did not wish to say anything else.


[7]   On May 18, 2018, the State filed an Information, charging Garretson with

      Level 2 felony dealing in methamphetamine and Level 4 felony possession of

      methamphetamine. The State also alleged that Garretson was an habitual

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2750 | June 4, 2020   Page 3 of 13
      offender. On September 16, 2019, the trial court granted the State’s motion to

      dismiss the dealing charge. Mengedoht had also been charged with

      methamphetamine possession and pleaded guilty to the charge as a Level 5

      felony. As part of Mengedoht’s testimony establishing the factual basis for his

      guilty plea, he stated that he and Garretson had jointly possessed the

      methamphetamine. Thereafter, in a deposition taken in preparation for

      Garretson’s trial, Mengedoht stated that the methamphetamine was his. The

      State subsequently charged Mengedoht with perjury.


[8]   On September 23, 2019, the trial court convened Garretson’s two-day jury trial.

      Garretson did not object when Officer Gray testified about Garretson’s

      admissions during the traffic stop that the methamphetamine was his.

      Garretson called Mengedoht as a witness, but Mengedoht invoked his Fifth

      Amendment right. Garretson had records from Mengedoht’s criminal case

      admitted into evidence showing that Mengedoht had pleaded guilty to Level 5

      felony methamphetamine possession. During closing argument, the deputy

      prosecutor argued that, even though Mengedoht had been convicted of

      possessing the methamphetamine found in the vehicle, two people could jointly

      possess the same drugs, and, thus, the jury could also convict Garretson for

      possessing the methamphetamine. During his closing statements, Garretson’s

      counsel asked the jury several times why Mengedoht would have pleaded guilty

      if the methamphetamine was not his. The jury found Garretson guilty of

      methamphetamine possession, and Garretson admitted that he had the two




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2750 | June 4, 2020   Page 4 of 13
       prior, unrelated felony convictions alleged by the State in the habitual offender

       Information.


[9]    On October 24, 2019, the trial court held Garretson’s sentencing hearing.

       Garretson expressed dissatisfaction with his counsel’s performance, and

       Garretson’s counsel moved to withdraw due to a breakdown of communication

       with his client. After Garretson’s counsel confirmed that he had adequately

       prepared for the hearing and Garretson’s claim that his counsel had withheld

       discovery materials from him was proven to be inaccurate, the trial court denied

       counsel’s motion to withdraw. During his allocution, Garretson stated that at

       the time of his arrest his liver and kidneys were failing and that, as a result, he

       was “delusional” and in an “unstable state of mind[.]” (Transcript p. 213).

       Garretson denied telling Officer Gray that the methamphetamine found in the

       Geo Tracker belonged to him.


[10]   The trial court found as mitigating circumstances that Garretson had admitted

       that he was an habitual offender and that his offense had not caused, nor had it

       threatened to cause, serious harm. The trial court accorded those mitigating

       circumstances minimal weight. The trial court found as an aggravating

       circumstance that Garretson had four prior felony convictions, three of which

       were for drug-related offenses, and that Garretson had failed to take advantage

       of the various forms of rehabilitative sentences that had been accorded him.

       The trial court found as additional aggravating circumstances that Garretson

       was on pre-trial release and probation when he committed the instant offense,

       he was affiliated with a gang, and he had incurred thirty-five major rule

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2750 | June 4, 2020   Page 5 of 13
       violations in jail while awaiting trial. The trial court found that the aggravating

       circumstances “far, far, far exceed[ed]” the mitigators. (Tr. p. 227). The trial

       court sentenced Garretson to eight years for his possession of

       methamphetamine conviction, enhanced by twelve years for being an habitual

       offender.


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


                               DISCUSSION AND DECISION
                                            I. Admission of Evidence

                                             A. Inculpatory Statements

[12]   Although Garretson claims that his inculpatory statements to Officer Gray

       “should have been suppressed” because they were involuntary, this appeal

       occurs after trial, and, therefore, the issue is more properly framed as whether

       the trial court abused its discretion when it admitted those statements into

       evidence at trial. (Appellant’s Br. p. 9). Decisions to admit or exclude evidence

       are within the sound discretion of the trial court. Wright v. State, 108 N.E.3d

       307, 313 (Ind. 2018). Accordingly, we afford those decisions deference and will

       reverse only upon an abuse of the trial court’s discretion and upon that error

       affects the defendant’s substantial rights. Id. However, issues implicating

       constitutional questions, such as the voluntariness of a confession, are reviewed

       de novo. Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). Upon review of a

       challenge to a trial court’s admission of a confession, we do not reweigh the

       evidence, and we examine the record for substantial, probative evidence of


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2750 | June 4, 2020   Page 6 of 13
       voluntariness. Ringo v. State, 736 N.E.2d 1209, 1211 (Ind. 2000). In addition,

       we consider only the evidence most favorable to the trial court’s ruling. Pruitt v.

       State, 834 N.E.2d 90, 115 (Ind. 2005).


[13]   We also observe that Garretson failed to object to the admission of the

       challenged evidence at trial. As a general rule, the failure to object at trial to the

       admission of evidence waives any claims of error unless fundamental error can

       be established. Konopasek v. State, 946 N.E.2d 23, 27 (Ind. 2011). Fundamental

       error is a “very narrow” exception to the waiver rule and consists of error that

       “make[s] a fair trial impossible or constitute[s] a clearly blatant violation of

       basic and elementary principles of due process presenting an undeniable and

       substantial potential for harm.” Kelly v. State, 122 N.E.3d 803, 805 (Ind. 2019).


[14]   Before addressing the voluntariness of Garretson’s statements, we pause to note

       that, in his Statement of the Issues and the caption of his Summary of the

       Arguments, Garretson claims that he was deprived of his right to the effective

       assistance of counsel. However, Garretson did not provide us with a standard

       of review for that claim, as necessitated by Indiana Appellate Rule 46(A)(8)(b),

       nor did he develop any substantive argument supporting that claim in the body

       of his brief. Failure to support an argument with cogent reasoning and citations

       to legal authority or the record results in waiver of a claim. Ind. Appellate Rule

       46(A)(8)(a); Griffith v. State, 59 N.E.3d 947, 958 n.5 (Ind. 2016). We conclude

       that Garretson has waived his ineffective assistance of counsel claim.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2750 | June 4, 2020   Page 7 of 13
[15]   As to the substance of his argument, Garretson contends that his statements

       were “coerced.” (Appellant’s Br. p. 9). The Fifth Amendment’s privilege

       against self-incrimination applies to the states through the Fourteenth

       Amendment. Withrow v. Williams, 507 U.S. 680, 689, 113 S.Ct. 1745, 123

       L.Ed.2d 407 (1993). In addition, Article I, Section 14 of our state constitution

       provides that “[n]o person, in any criminal prosecution, shall be compelled to

       testify against himself.” Part of these constitutional protections is that, in order

       for a defendant’s statement to be admissible at trial against him, it must have

       been given voluntarily. Wright v. State, 916 N.E.2d 269, 277 (Ind. Ct. App.

       2009), trans. denied. Under state law, when a defendant challenges the

       voluntariness of his confession, the State must prove beyond a reasonable doubt

       that the confession was given voluntarily. Jackson v. State, 735 N.E.2d 1146,

       1153 n.4 (Ind. 2000). The voluntariness of a defendant’s statement is

       determined by examining the totality of the circumstances, including any

       violence, threats, promises or other improper influences brought to bear to bring

       about the statement. Luckhart v. State, 736 N.E.2d 227, 229 (Ind. 2000).

       Factors to be considered are “‘any element of police coercion; the length,

       location, and continuity of the interrogation; and the maturity, education,

       physical condition, and mental health of the defendant.’” Weisheit v. State, 26

       N.E.3d 3, 18 (Ind. 2015) (quoting Wilkes v. State, 917 N.E.2d 675, 680 (Ind.

       2009)).


[16]   Here, Garretson made his statements to Officer Gray during a brief

       conversation after having been provided with his Miranda advisements.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2750 | June 4, 2020   Page 8 of 13
       Garretson contends that his confession was involuntary because “he was under

       an immense amount of stress and pressure due to an ongoing issue with his

       mother and his own ongoing health problems” and because he was intoxicated.

       (Appellant’s Br. p. 7). However, Garretson does not support either of these

       contentions with citations to the record. Our own review of the trial transcript

       and exhibits uncovered no evidence of Garretson’s mental health, physical

       health, or intoxication that was introduced at trial.


[17]   Garretson also contends that his confession was involuntary because Officer

       Gray continued to question him after he initially denied the methamphetamine

       belonged to him and after Mengedoht invoked his right to counsel. However,

       Garretson did not invoke his right to remain silent or indicate to Officer Gray in

       any way that he did not wish to continue to speak to the officer after he had

       initially denied ownership of the methamphetamine. The right to silence must

       be enunciated; it is not self-executing. See Wilkes, 917 N.E.2d at 682 (“An

       assertion of the Miranda right to remain silent must be clear and unequivocal.”).

       In addition, Garretson does not explain how Mengedoht’s invocation of his

       right to counsel made Garretson’s statements involuntary, and we are unaware

       of any legal support for this contention. Accordingly, we conclude that there

       was no evidence before the trial court that indicated that Garretson’s statements

       were involuntary and, therefore, Garretson has failed to establish fundamental

       error occurred.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2750 | June 4, 2020   Page 9 of 13
                                    B. References to Mengedoht’s Conviction

[18]   Garretson argues that the State impermissibly used evidence of Mengedoht’s

       conviction to convict him. Garretson contends that Mengedoht’s “admission

       and conviction on the underlying possession of methamphetamine charge was

       brought up quite frequently throughout trial.” (Appellant’s Br. p. 11).

       However, the only evidence of Mengedoht’s conviction introduced at trial was

       done so by Garretson himself to further his defense theory that only Mengedoht

       possessed the methamphetamine. Contrary to Garretson’s assertion on appeal,

       Officer Gray did not refer to Mengedoht’s conviction in his direct testimony.

       Because it was Garretson who introduced the evidence he now challenges on

       appeal, we do not find his argument to be persuasive. See Kingery v. State, 659

       N.E.2d 490, 494 (Ind.1995) (“A party may not invite error, then later argue that

       the error supports reversal, because error invited by the complaining party is not

       reversible error.”).


[19]   In this portion of his argument, Garretson also contends that the State

       improperly emphasized Mengedoht’s conviction during closing statements

       when the deputy prosecutor argued to the jury that he and Mengedoht jointly

       possessed the methamphetamine. Garretson did not object to this argument at

       trial, request an admonishment, or move for a mistrial, and so it is waived.

       Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014). On appeal, Garretson does not

       argue that the now-challenged references to Mengedoht’s conviction constituted

       fundamental error. In addition, Garretson does not provide us with a standard

       of review for a claim of prosecutorial misconduct, nor does he support his


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2750 | June 4, 2020   Page 10 of 13
       argument with cogent reasoning or legal authority. We conclude, therefore,

       that Garretson has also waived this claim for failing to adequately develop his

       appellate argument. See App. R. 46(A)(8)(a). His waiver of the issue

       notwithstanding, the deputy prosecutor’s argument was a correct statement of

       the law. See Massey v. State, 816 N.E.2d 979, 989 (Ind. Ct. App. 2004)

       (observing that possession of contraband by a defendant need not be exclusive

       and that it can be possessed jointly). The deputy prosecutor’s argument was

       also in direct response to Garretson’s defense theory and repeated arguments to

       the jury that Mengedoht would not have pleaded guilty to possession of

       methamphetamine if the drugs had not been his and, therefore, any claimed

       error was also invited. See Kingery, 659 N.E.2d at 490.


                                                  II. Sentencing

[20]   Garretson challenges the sentence imposed by the trial court. Although he cites

       our authority under the Indiana constitution and Indiana Appellate Rule 7(B)

       to independently review the inappropriateness of his sentence, he develops no

       substantive argument regarding the nature of his offenses and his character.

       Garretson also challenges his sentence on the ground that the trial court erred

       when it refused to allow his sentencing counsel to withdraw prior to his

       sentencing hearing. Garretson utterly fails to support this argument with any

       citation to legal authority or citations to the record. Given his failure to

       adequately support these appellate arguments with cogent reasoning and

       citations to legal authority or the record, Garretson has waived any claim

       regarding the inappropriateness of his sentence or the propriety of the trial


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2750 | June 4, 2020   Page 11 of 13
       court’s decision to refuse to allow his counsel to withdraw. See App. R.

       46(A)(8)(a).


[21]   The gravamen of Garretson’s remaining argument regarding his sentence is that

       the trial court abused its discretion when it identified and weighed the

       mitigating circumstances. Under our current sentencing scheme, so long as a

       sentence imposed by a trial court is within the statutory range for the offense, it

       is subject to review 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 (Ind. 2007). An

       abuse of the trial court’s sentencing discretion occurs if its 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. 868

       N.E.2d at 490. One way that a trial court may abuse its discretion is when its

       sentencing statement omits reasons that are clearly supported by the record and

       advanced for consideration. Id. at 490-91. However, because trial courts are no

       longer required to weigh aggravating and mitigating circumstances, the weight

       accorded to those circumstances is no longer subject to our review. Id. at 491.


[22]   Garretson argues that the trial court should have accorded more weight to the

       fact that his offense did not cause, nor did it threaten to cause, serious harm.

       However, the trial court recognized this factor as mitigating, although it

       declined to extend it much significance for sentencing. We cannot credit

       Garretson’s argument because we no longer review the relative weight assigned

       by a trial court to mitigating circumstances. Id.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2750 | June 4, 2020   Page 12 of 13
[23]   Garretson also contends that the trial court improperly turned his cooperation

       with law enforcement from a mitigator into an aggravator and that more weight

       should have been accorded to his poor physical health. Our review of the trial

       court’s sentencing statement revealed that the trial court considered and

       rejected both proposed mitigators. The trial court observed that Garretson

       initially provided Officer Gray with an inaccurate name and that, although

       Garretson stated during his allocution that he suffered from kidney and liver

       failure at the time of the offenses, he did not report any physical issues to the

       pre-sentence investigator. Therefore, we cannot say that these factors were

       clearly supported by the record or that the trial court abused its discretion by

       failing to identify them as mitigating circumstances. Id. at 490-91.


                                             CONCLUSION
[24]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion when it admitted the challenged evidence at trial or when it identified

       and weighed the mitigating circumstances at sentencing.


[25]   Affirmed.


[26]   Mathias, J. and Tavitas, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2750 | June 4, 2020   Page 13 of 13
