MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                               FILED
regarded as precedent or cited before any                                       Jun 12 2019, 6:29 am
court except for the purpose of establishing
                                                                                    CLERK
the defense of res judicata, collateral                                         Indiana Supreme Court
                                                                                   Court of Appeals
estoppel, or the law of the case.                                                    and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ryan M. Gardner                                          Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Colton T. Vibbert,                                       June 12, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2122
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D05-1712-F2-41



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2122 | June 12, 2019                      Page 1 of 13
                                             Case Summary
[1]   Colton T. Vibbert appeals his conviction and sentence for dealing in

      methamphetamine, a Level 2 felony, and his adjudication for being a habitual

      offender. We affirm.


                                                     Issues
[2]   Vibbert raises two issues on appeal, which we restate as follows:


              I.       Whether the trial court improperly admitted evidence that
                       was obtained after Vibbert’s girlfriend consented to a
                       search of her home, where Vibbert occasionally stayed.


              II.      Whether the trial court abused its sentencing discretion by
                       failing to find that Vibbert’s mental health history was a
                       significant mitigating factor.


                                                     Facts
[3]   This case involves consent to a police search and the admissibility of evidence

      that law enforcement recovered in executing the search. Vibbert’s girlfriend,

      Veronica Grear, owned a trailer located in Fort Wayne. On November 9, 2017,

      Fort Wayne Police Department detectives interviewed Grear and Vibbert

      regarding an ongoing homicide investigation. During the interview, Grear

      indicated that Vibbert occasionally stayed at her trailer and gave her written

      consent to a police search of the trailer to Detective Craig Gregory. See App.

      Vol. II p. 121. Detective Jeff Marsee interviewed Vibbert, who admitted that he




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2122 | June 12, 2019   Page 2 of 13
      had stayed with Grear and left his vehicle at Grear’s trailer the night before the

      interview.


[4]   Later that afternoon, Detective Alan Garriott searched the trailer, pursuant to

      Grear’s consent to search. 1 In the kitchen, Detective Garriott observed a “clear

      food storage container” on a metal folding chair “in the approximate center of

      the kitchen floor.” Tr. Vol. II p. 106.


[5]   Inside the clear container, officers found baggies containing a powdery

      substance, scales, and a box of unused food storage bags. The baggies

      contained methamphetamine and inositol, a cutting agent.


[6]   On December 11, 2017, Detective Juan Carlos Gutierrez of the Vice and

      Narcotics Bureau arrested Vibbert for dealing in methamphetamine. Detective

      Gutierrez read Vibbert his Miranda rights and conducted a recorded interview.

      Vibbert initially stated that the methamphetamine recovered from the trailer

      belonged to Grear; however, Vibbert “finally admitted that the

      [methamphetamine] belonged to him.” Id. at 135.


[7]   On December 14, 2017, the State charged Vibbert with dealing in

      methamphetamine, a Level 2 felony; and maintaining a common nuisance, a




      1
       Detective Garriott was unaware of any limitation(s) in the scope of his search of Grear’s home. See Supp.
      Tr. p. 17.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2122 | June 12, 2019                   Page 3 of 13
      Level 6 felony. The State subsequently dismissed the latter charge. In a

      separate information, the State alleged that Vibbert was a habitual offender.


[8]   On May 17, 2018, Vibbert filed a motion to suppress evidence, in which he

      alleged that Grear did not freely and voluntarily give consent to the police

      search; and that Grear consented to a limited scope search seeking “guns,

      ammo, holsters, [ ] any bloody clothing[,]” and “evidence from the homicide.”

      Supp. Tr. pp. 6, 28. The trial court conducted a hearing on Vibbert’s motion to

      suppress on May 31, 2018 and denied the motion on June 19, 2019. See App.

      Vol. III p. 39.


[9]   Vibbert was tried by jury on June 21, 2018. The jury convicted Vibbert of

      dealing in methamphetamine, a Level 2 felony. The parties subsequently

      stipulated that Vibbert was a habitual offender. At Vibbert’s sentencing hearing

      on July 13, 2018, defense counsel asked the trial court to consider, as

      mitigating, that Vibbert “was diagnosed with bipolar, ADHD, and depression

      at a very young age, but he has not received any treatment[.]” Tr. Vol. II p.

      178. Acknowledging Vibbert’s significant criminal history, defense counsel

      argued as follows that Vibbert had found himself in a “vicious cycle” of

      “serving executed time, [but] not getting any mental health treatment[,]”:


              I would submit to the Court that the untreated mental health
              problems would create the situation, so to speak, where the prior
              attempts at rehabilitation have failed. When people have
              untreated mental health issues, they struggle, especially when
              you’re talking about bipolar and ADHD, where that person,
              because of the untreated mental health issues, struggles to stay in

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2122 | June 12, 2019   Page 4 of 13
               compliance with the expectations of the authority figures, of
               Probation, of Parole, of alternative sentencing programs and,
               therefore, they don’t succeed in those programs. I – and I don’t
               know that [it is fair] to call that prior attempt at rehabilitation
               having been failed when that mental health issue wasn’t being
               treated.


       Id.


[10]   The trial court declined to find Vibbert’s mental health issues to be mitigating

       stating:


               The higher courts have been pretty clear [ ] that there has to be a
               connection between the charged offense and the alleged
               mitigating circumstance and I see no connection between the
               mental health issues that you claim to suffer from and the charge
               of dealing in methamphetamine, so I decline to find that as a
               mitigating circumstance.


       Id. at 188. Finding Vibbert’s criminal history to be “significant[ly]

       aggravating,” the trial court sentenced Vibbert to thirty years in the Department

       of Correction (“DOC”) for dealing in methamphetamine and enhanced that

       sentence by twenty years for the habitual offender adjudication, for an

       aggregate sentence of fifty years. Id. The trial court further ordered that

       Vibbert’s sentence should be served consecutively to his sentences in other

       causes. Vibbert now appeals.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2122 | June 12, 2019   Page 5 of 13
                                                       Analysis
                                            I.       Admission of Evidence

[11]   Vibbert argues that the trial court improperly admitted evidence that was

       obtained in violation of his rights under the Fourth Amendment to the United

       States Constitution.2 “The general admission of evidence at trial is a matter we

       leave to the discretion of the trial court.” Clark v. State, 994 N.E.2d 252, 259-60

       (Ind. 2013). “We review these determinations for abuse of that discretion and

       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. at 260.


[12]   The Fourth Amendment to the United States Constitution protects citizens

       against unreasonable searches and seizures by prohibiting them without a

       warrant supported by probable cause. U.S. Const. amend. IV. “The

       fundamental purpose of the Fourth Amendment to the United States

       Constitution is to protect the legitimate expectations of privacy that citizens

       possess in their persons, their homes, and their belongings.” Taylor v. State, 842

       N.E.2d 327, 330 (Ind. 2006). This protection has been “extended to the states

       through the Fourteenth Amendment.” Bradley v. State, 54 N.E.3d 996, 999

       (Ind. 2016). “As a deterrent mechanism, evidence obtained in violation of this

       rule is generally not admissible in a prosecution against the victim of the




       2
         Vibbert does not argue that the search violated Article 1, Section 11 of the Indiana Constitution; we,
       therefore, deem that issue waived.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2122 | June 12, 2019                      Page 6 of 13
       unlawful search or seizure absent evidence of a recognized exception.” Clark,

       994 N.E.2d at 260.


[13]           One exception to the warrant requirement occurs when consent
               is given to the search. A valid consent to search may be given by
               the person whose property is to be searched or a third party who
               has common authority or an adequate relationship to the
               premises to be searched. When showing that a third party has
               authority to consent, the State must demonstrate mutual use of
               the property by persons generally having joint access or control
               for most purposes, so that it is reasonable to recognize that “any
               of the co-inhabitants has the right to permit the inspection in his
               own right and that the others have assumed the risk that one of
               their number might permit the common area to be searched.”


               While a defendant typically is without standing to challenge the
               voluntariness of a third party’s consent, an individual may do so
               when that consent involves an area in which the defendant held a
               reasonable expectation of privacy. Also, a third party may
               consent to the search of the premises or property of another if
               actual authority exists. Establishing actual authority requires a
               showing that there is a sufficient relationship to or mutual use of
               the property by persons generally having joint access or control
               for most purposes. However, if actual authority cannot be
               shown, then facts demonstrating that the consenting party had
               apparent authority to consent could prove a lawful search. Krise
               v. State, 746 N.E.2d [957,] 967 [(Ind. 2001)]. Under the apparent
               authority doctrine, a search is lawful if the facts available to the
               officer at the time would warrant a man of reasonable caution to
               believe that the consenting party had authority over the property.
               However, our Supreme Court has observed that persons sharing
               premises may nonetheless retain areas or objects within their
               exclusive control that are not subject to search based on consent of
               one of the co-occupants. A co-occupant may deny joint access
               over an object by keeping it in a place devoted to the owner’s

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2122 | June 12, 2019   Page 7 of 13
               exclusive use or where the object is one over which only one
               person normally exercises control and authority or which
               “normally hold[s] highly personal items.”


       Peel v. State, 868 N.E.2d 569, 575-76 (Ind. Ct. App. 2007) (citations and

       footnote omitted).


[14]   Vibbert argues that Grear lacked authority to consent to a search of the

       container. He relies heavily upon our Supreme Court’s analysis in Krise and

       Halsema v. State, 823 N.E.2d 668 (Ind. 2005). Our Supreme Court summarized

       Krise as follows in Halsema:


               In Krise v. State, 746 N.E.2d 957 (Ind. 2001)[,] the defendant
               shared a house with a roommate. The roommate consented to a
               general search of the house, which ultimately led to the discovery
               and search of the defendant’s purse. That search, in turn,
               revealed marijuana and a white powdery substance later
               identified as methamphetamine. After a careful and exhaustive
               review of what we characterized as the “twists and turns of
               Fourth Amendment law” with respect to warrantless searches,
               this Court ultimately reversed the defendant’s conviction of
               possession of a controlled substance within 1000 feet of a public
               park on the ground that the defendant’s roommate lacked
               authority to consent to a warrantless search of the defendant’s
               purse. We held “the inspection of closed containers that
               normally hold highly personal items requires the consent of the
               owner or a third party who has authority—actual or apparent—
               to give consent to the search of the container itself.”
               Acknowledging that we had previously addressed cases involving
               third-party consent searches of a shared home and its contents,
               we noted, “none of these cases dealt with a third-party’s
               authority to consent to search something like a purse, i.e., a



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2122 | June 12, 2019   Page 8 of 13
               closed container that normally holds highly personal items,
               located within the home.”


       Halsema, 823 N.E.2d at 676 (citing Krise, 746 N.E.2d at 961, 968-69) (internal

       citations omitted).


[15]   In Halsema, the defendant was pulled over in a vehicle and arrested for

       possession of marijuana. A vehicle search yielded individually-wrapped

       baggies of methamphetamine, controlled substances, scales, and drug

       paraphernalia. When police officers went to the address that the defendant

       provided, a resident told officers that the defendant had been staying in a

       bedroom in her house and had exclusive use of certain drawers in the bedroom

       dresser, which the resident had specifically emptied for the defendant’s use.

       The resident then consented to a police search of the house, which yielded

       methamphetamine in the defendant’s dresser drawer. After the defendant was

       convicted of various offenses, he argued on appeal that the resident lacked

       authority to consent to a search of his dresser drawer. We reversed the

       conviction on other grounds, and our Supreme Court granted transfer.


[16]   Citing Krise, the Supreme Court concluded that “[t]he dresser drawer . . . [wa]s

       analogous to the purse in Krise—a closed container normally holding highly

       personal items.” Halsema, 823 N.E.2d at 676. Ultimately, the Halsema Court




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2122 | June 12, 2019   Page 9 of 13
       concluded that the resident lacked actual or apparent authority[ 3] to consent to

       a search of the dresser drawer, reasoning:


                 [the defendant] enjoyed the exclusive use of at least one of the
                 dresser drawers in [the resident]’s bedroom and because [the
                 resident] specifically advised the officers of that fact, [the
                 resident] did not have actual authority to consent to a search of
                 the drawer where the methamphetamine was found, nor could an
                 officer reasonably believe that she had such authority.


       Id. Thus, the Court vacated the defendant’s conviction and concluded that

       “the warrantless search of the [dresser] drawer without [the defendant]’s

       consent violated his Fourth Amendment right against unreasonable search and

       seizure”; and that the trial court “erred by admitting the seized drugs into

       evidence.” Id.


[17]   The instant case differs from Krise and Halsema. The container: (1) was not

       stored in a place that was devoted to Vibbert’s exclusive use; (2) is not the sort

       of container that is used to store highly personal items; (3) is not the sort of

       object “over which only one person normally exercises control”; (4) is




       3
           Our Supreme Court has defined “actual authority” and “apparent authority” as follows:

                  Actual authority “requires a showing that there is a sufficient relationship to or ‘mutual
                  use of the property by persons generally having joint access or control for most
                  purposes.’” As for apparent authority, “a search is lawful if the facts available to the
                  officer at the time would ‘warrant a man of reasonable caution in the belief that the
                  consenting party had authority over the premises.’”


       Halsema, 823 N.E.2d at 676 (citations omitted).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2122 | June 12, 2019                       Page 10 of 13
       transparent—thus, its contents were openly visible to any viewer; and (5) was

       found in the kitchen, which typically is the most heavily-trafficked common

       area of a home. See Krise, 746 N.E.2d at 961, 968-69. These are not the

       qualities of a vessel, similar to a purse or a dresser drawer, which we imbue

       with heightened Fourth Amendment protections in cases involving third

       parties’ consent to searches.


[18]   For the foregoing reasons, we find that the trial court did not err in admitting

       the evidence recovered pursuant to Grear’s consent to search her home. Grear

       had actual and apparent authority to consent to a search of her kitchen,

       including impersonal items that were in plain view.


                                       II. Overlooked Mitigating Factor

[19]   Next, Vibbert argues that the trial court overlooked a significant mitigating

       factor—namely, his alleged mental health history. Specifically, Vibbert argues

       that it was “error” for the trial court “[t]o not consider [his mental health

       conditions]” as a mitigating factor and that “the trial court’s imposed sentence

       is not warranted.” Appellant’s Br. p. 17.


[20]   Sentencing decisions rest within the sound discretion of the trial court.

       McElfresh v. State, 51 N.E.3d 103, 107 (Ind. 2016). As long as the sentence is

       within the statutory range, it is subject to review only for an abuse of discretion.

       Id. An abuse of discretion will be found where 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.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2122 | June 12, 2019   Page 11 of 13
[21]   A trial court is not obligated to accept a defendant’s claim as to what constitutes

       a mitigating circumstance. Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000). A

       trial court has discretion to determine whether the factors are mitigating, and it

       is not required to explain why it does not find the defendant’s proffered factors

       to be mitigating. Haddock v. State, 800 N.E.2d 242, 245 (Ind. Ct. App. 2003). A

       claim that the trial court failed to find a mitigating circumstance requires the

       defendant to establish that the mitigating evidence is both significant and clearly

       supported by the record. Anglemyer v. State, 868 N.E.2d 482, 493 (Ind. 2007),

       clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). A trial court’s sentencing order

       may not be challenged as reflecting an improper weighing of aggravating or

       mitigating circumstances. Id. at 491.


[22]   “Mental illness is not necessarily a significant mitigating factor; ‘rather, [it] is a

       mitigating factor to be used in certain circumstances, such as when the evidence

       demonstrates longstanding mental health issues or when the jury finds that a

       defendant is mentally ill.’” Townsend v. State, 45 N.E.3d 821, 831 (Ind. Ct. App.

       2015), trans. denied. “[I]n order for a [defendant’s] mental history to provide a

       basis for establishing a mitigating factor, there must be a nexus between the

       defendant’s mental health and the crime in question.” Weedman v. State, 21

       N.E.3d 873, 894 (Ind. Ct. App. 2014), trans. denied; see also Archer v. State, 689

       N.E.2d 678, 685 (Ind. 1997).


[23]   Here, the trial court considered Vibbert’s mental health history and explicitly

       deemed it to lack mitigating weight due to the lack of a nexus between Vibbert’s

       offenses and his alleged mental health conditions. Vibbert presented no

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2122 | June 12, 2019   Page 12 of 13
       argument or evidence that: (1) supports his diagnoses; (2) reflects he was

       suffering from the conditions when he committed the instant offenses; or (3)

       indicates that the mental health conditions affected his ability to control his

       impulses, impaired his faculties, or had some relationship to the crimes at issue.


[24]   In the absence of any evidence of a mental disease or diagnosis, with the

       exceptions of Vibbert’s self-serving 4 statements proffered at sentencing, and no

       evidence of a nexus between Vibbert’s crimes and his mental state, we conclude

       that the trial court did not abuse its sentencing discretion in refusing Vibbert’s

       proffered mitigator. See Corralez v. State, 815 N.E.2d 1023, 1026 (Ind. Ct. App.

       2004) (requiring a nexus between defendant’s mental health and the crimes in

       question for mental history to be deemed mitigating).


                                                    Conclusion
[25]   The trial court did not err in admitting evidence recovered pursuant to a

       consent to search and did not overlook a significant mitigating factor. We

       affirm.


[26]   Affirmed.


       Crone, J., and Bradford, J., concur.




       4
         Vibbert’s pre-sentence investigation report provides that “[t]he defendant reported he was diagnosed with
       Bipolar Disorder, Depression, and Attention Deficit Hyperactivity Disorder, as a juvenile. He advised he
       was treated with medication; however, he has not been prescribed any medication for his mental health
       issues since age 13.” App. Vol. III p. 91.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2122 | June 12, 2019                   Page 13 of 13
