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                             Jul 28 2020, 10:43 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
Justin R. Wall                                            Curtis T. Hill, Jr.
Wall Legal Services                                       Attorney General of Indiana
Huntington, Indiana
                                                          Steven Hosler
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Larry Eugene Reust, Jr.,                                  July 28, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          20A-CR-729
        v.                                                Appeal from the Huntington
                                                          Circuit Court
State of Indiana,                                         The Honorable Davin G. Smith,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          35C01-1910-F3-338



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-729 | July 28, 2020                      Page 1 of 8
[1]   Larry Reust, Jr., appeals his conviction and the sentence imposed by the trial

      court for Level 3 Felony Possession of a Narcotic Drug, 1 arguing that the

      evidence was insufficient to support the conviction and that the sentence was

      inappropriate in light of the nature of the offense and his character. Finding the

      evidence sufficient and the sentence not inappropriate, we affirm.


                                                     Facts
[2]   On October 22, 2019, Huntington County Sheriff’s Department Deputy Jamin

      Sands transported Reust to the Huntington County Jail to be booked for an

      unrelated crime. While Deputy Sands was reading Reust the arrest warrant, he

      noticed that Reust “appeared to be adjusting his pants.” Tr. Vol. III p. 114.

      Then, Special Deputy Joshua Platt took Reust to a dressing room so that he

      could change into a jail uniform. Deputy Platt decided to strip search Reust by

      asking him to “bend over and squat and cough.” Id. at 119. After Reust twice

      failed to complete the procedure, he eventually did what Deputy Platt

      requested.


[3]   It was at this point that Deputy Platt “was able to see the end of a plastic baggie

      near his rectum.” Id. Deputy Platt asked Reust to remove the baggie and hand it

      to him; Reust complied. Deputy Platt handed the plastic baggie to Deputy

      Sands, and while doing so, he noticed that the plastic baggie contained a

      “brown substance.” Id. at 120. Deputy Sands then placed the baggie in a secure




      1
          Ind. Code § 35-48-4-6(a), -6(d)(2).


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-729 | July 28, 2020   Page 2 of 8
      evidence locker and eventually sent it off to the Indiana State Police Laboratory

      to be tested. A representative from the lab reported that the substance was a

      combination of heroin and tramadol and that it weighed a total of 13.55 grams.


[4]   On October 23, 2019, the State charged Reust with one count of Level 3 felony

      possession of a narcotic drug due to a prior conviction for dealing in a

      controlled substance. The State also alleged that Reust was an habitual

      offender. On November 3, 2019, Special Deputy Sidney Jeffers spoke with

      Reust on an unrelated matter, and during that conversation, Reust told Deputy

      Jeffers that “when he came to the jail—initially came into the jail—that he had

      brought heroin inside of his butt checks.” Id. at 150-51.


[5]   Following Reust’s March 10-11, 2020, trial, the jury found him guilty as

      charged. Additionally, Reust admitted to being an habitual offender. On March

      24, 2020, the trial court sentenced Reust to twelve years in the Department of

      Correction (DOC) for the Level 3 felony conviction, with an additional thirteen

      years imposed for the habitual offender enhancement, for an aggregate term of

      twenty-five years. Reust now appeals.


                                   Discussion and Decision
                                   I. Sufficiency of Evidence
[6]   First, Reust argues that the evidence was insufficient to support his conviction

      for Level 3 felony possession of a narcotic drug. When reviewing the sufficiency

      of the evidence supporting a conviction, we must affirm if the probative

      evidence and reasonable inferences drawn therefrom could have allowed a

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-729 | July 28, 2020   Page 3 of 8
      reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.

      McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). It is not our job to reweigh

      the evidence or to judge the credibility of the witnesses, and we consider any

      conflicting evidence most favorably to the trial court’s ruling. Wright v. State,

      828 N.E.2d 904, 906 (Ind. 2005).


[7]   To convict Reust of Level 3 felony possession of a narcotic drug, the State was

      required to prove beyond a reasonable doubt that Reust, without having a valid

      prescription or order, knowingly or intentionally possessed a pure or

      adulterated narcotic drug, that the amount of the drug was between ten and

      twenty-eight grams, and that an enhancing circumstance applies. I.C. § 35-48-4-

      6(a), -6(d)(2). Reust contends that the evidence was insufficient to prove that (1)

      he knowingly possessed the narcotics; and (2) the amount of the drug was

      between ten and twenty-eight grams.


[8]   First, regarding the knowingly element, “[a] person engages in conduct

      ‘knowingly’ if, when he engages in the conduct, he is aware of a high

      probability that he is doing so.” Ind. Code § 35-41-2-2(b). It is undisputed that

      when booking Reust, Deputy Sands noticed that Reust “appeared to be

      adjusting his pants.” Tr. Vol. III p. 114. Later, during Reust’s strip search,

      Deputy Platt asked Reust to turn his head and cough. After two failed attempts,

      Reust eventually complied with Deputy Platt’s instructions, which caused

      Deputy Platt to notice the end of a plastic baggie sticking out of Reust’s anus.

      Later on, Reust admitted to Deputy Jeffers that “when he came to the jail—



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-729 | July 28, 2020   Page 4 of 8
       initially came into the jail—that he had brought heroin inside of his butt

       checks.” Id. at 150-51.


[9]    Based on this evidence, we believe a reasonable factfinder could conclude that

       Reust knowingly possessed the narcotics. Not only were the drugs stashed in a

       very intimate area over which no other person besides Reust would have had

       control, but Reust also confessed to bringing the narcotics with him when he

       initially appeared in jail. In other words, it can reasonably be deduced that

       Reust was aware of a high probability that he possessed narcotics. Thus, given

       Reust’s actions during his arrest, the location of the hidden drugs, and his

       confession, we find that the evidence was sufficient to prove the “knowingly”

       element.


[10]   Next, regarding the amount/weight of the drugs in question, Reust argues that

       “it should have been beholden upon the State to prove exactly how much

       controlled substance was in the baggie as it is the precise amount of controlled

       substance that is indicative of the harm to society that would be inflicted upon it

       by the defendant. The State simply failed to do so.” Appellant’s Br. p. 17.

       However, the State has done nothing but present uncontroverted evidence that

       the narcotics in question weighed 13.55 grams. Reust’s demand that we

       reevaluate the narcotics themselves, their amount, and whether the lab report

       was credible amounts to nothing more than a request that we reweigh the

       evidence, which we may not do. A reasonable trier of fact could have

       determined that the amount of the drug in question weighed between ten and

       twenty-eight grams based solely on the results from the laboratory report.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-729 | July 28, 2020   Page 5 of 8
[11]   In sum, the evidence is sufficient.


                                         II. Appropriateness
[12]   Next, Reust argues that the sentence imposed by the trial court is inappropriate

       in light of the nature of the offense and his character.


[13]   Indiana Appellate Rule 7(B) states that a “Court may revise a sentence . . . 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 question is not whether another sentence is more

       appropriate, but whether the defendant’s specific sentence is inappropriate.

       Steinberg v. State, 941 N.E.2d 515, 535 (Ind. Ct. App. 2011). In determining

       whether the sentence is inappropriate, we will consider numerous factors such

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

       others, and a “myriad [of] other factors that come to light in a given case.”

       Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The defendant bears the

       burden of persuading us that his sentence is inappropriate. Childress v. State, 848

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


[14]   For someone who commits the offense of Level 3 felony possession of a

       narcotic drug, the maximum sentence is sixteen years, and the minimum

       sentence is three years. Ind. Code § 35-50-2-5(b). The advisory sentence is nine

       years. Id. Further, for an habitual offender enhancement as applied to someone

       convicted of a Level 3 felony, the trial court may impose an additional fixed

       term of between six and twenty years. I.C. § 35-50-2-8(i)(1). Here, the trial court

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-729 | July 28, 2020   Page 6 of 8
       imposed a twelve-year term for Reust’s Level 3 felony conviction, with an

       additional thirteen years imposed for the habitual offender enhancement, for an

       aggregate twenty-five-year term to be served in the DOC.


[15]   First, as to the nature of the offense, Reust went to great lengths to conceal

       contraband from both Deputies Sands and Platt. Not only did Reust refuse to

       comply with Deputy Platt’s instructions the first two times, but he also hid

       illegal narcotics in a very invasive and private area of his body. We admit that

       the circumstances surrounding Reust’s commission of this crime were not the

       most extreme or egregious. But, when considered in tandem of our analysis of

       Reust’s character, we find that the nature of the offense does not render Reust’s

       sentence inappropriate.


[16]   More to that point, as to Reust’s character, Reust has previously been convicted

       of possession of marijuana, possession of cocaine, possession of a controlled

       substance, dealing in cocaine, operating a vehicle while intoxicated, and

       possession of a controlled substance within 1,000 feet of school property.

       Additionally, he currently has twenty-three criminal charges pending against

       him from four different felony cases. See Bailey v. State, 763 N.E.2d 998, 1004

       (Ind. 2002) (holding that a history of criminal activity can reflect poorly on a

       defendant’s character at sentencing); see also Rutherford v. State, 866 N.E.2d 867,

       874 (Ind. Ct. App. 2007) (holding that “it is appropriate to consider such a

       [criminal] record as a poor reflection on the defendant’s character, because it

       may reveal that he . . . has not been deterred even after having been subjected to

       the police authority of the State[]”). The trial court noted Reust’s serious

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-729 | July 28, 2020   Page 7 of 8
       criminal history during sentencing when it said that the “[a]ggravating

       circumstances are the substantial volume of [Reust’s] criminal history as well as

       the substantial nature of the crimes involved in [Reust’s] criminal history.”

       Appealed Order p. 1.


[17]   While we recognize that the trial court imposed a sentence for Reust’s Level 3

       felony conviction above the advisory sentence, the sheer weight and volume of

       Reust’s criminal background—combined with the sobering fact that Reust was

       charged with some twenty-three crimes after having been charged with the

       current offense—lead us to conclude that Reust’s sentence was not

       inappropriate. And the crimes with which Reust was charged all fall into the

       realm of criminal drug possession, use, intoxication, or distribution. This

       apparent disregard for the rule of law and an unwillingness to rehabilitate his

       behavior demonstrate that Reust has no remorse for the damage he has caused

       to himself and his surrounding community. Thus, we find that Reust’s

       character does not render his sentence inappropriate.


[18]   In sum, we will not revise Reust’s sentence pursuant to Indiana Appellate Rule

       7(B).


[19]   The judgment of the trial court is affirmed.


       Bailey, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-729 | July 28, 2020   Page 8 of 8
