MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                Nov 23 2015, 8:32 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Susan E. Schultz                                         Gregory F. Zoeller
Corydon, Indiana                                         Attorney General of Indiana

                                                         Katherine Modesitt Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
     COURT OF APPEALS OF INDIANA
Walter Davis,                                            November 23, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         31A04-1501-CR-38
        v.                                               Appeal from the Harrison Superior
                                                         Court
State of Indiana,                                        The Honorable Curtis Eskew,
Appellees-Plaintiff                                      Special Judge
                                                         Trial Court Cause No.
                                                         31D01-1312-FB-774



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 31A04-1501-CR-38 | November 23, 2015      Page 1 of 10
                                              Case Summary
[1]   Walter Davis (“Davis”) was convicted after a jury trial of Dealing in a

      Controlled Substance, as a Class B felony.1 He now appeals.


[2]   We affirm.



                                                        Issues
[3]   Davis raises three issues for our review, which we restate as:

                  I.    Whether the trial court engaged in impermissible ex parte
                        communication with the jury;
                II.     Whether there was sufficient evidence to sustain the judgment;
                        and
               III.     Whether Davis’s sentence was inappropriate in light of the
                        nature of his offense and his character.


                               Facts and Procedural History
[4]   In 2012 or 2013, Christopher Mattingly (“Mattingly”) was a subject of a

      Harrison County Sheriff’s Department narcotics investigation. During the

      investigation, Mattingly permitted investigators to enter his home, where

      investigators found narcotic pills for which Mattingly did not have a




      1
        Ind. Code § 35-48-4-2(a)(1)(C). The Indiana General Assembly enacted substantial revisions to Indiana’s
      criminal laws, effective July 1, 2014. We refer at all times to the provisions of the Code in effect at the time
      of Davis’s offense.


      Court of Appeals of Indiana | Memorandum Decision 31A04-1501-CR-38 | November 23, 2015               Page 2 of 10
      prescription. As a result of this episode, Mattingly agreed to work as a

      confidential informant.


[5]   In March 2013, Mattingly identified Davis to Harrison County Sheriff’s

      Detective Steve Coleman (“Detective Coleman”) as a possible source of

      narcotics. Mattingly and Detective Coleman arranged for Mattingly to make a

      controlled purchase of oxycodone pills from Davis on March 5, 2013. A search

      of Indiana Bureau of Motor Vehicles records indicated that Davis lived at 424

      Lemmon Street in Corydon.


[6]   On March 5, 2013, Detective Coleman and another officer met with Mattingly

      at a neutral location, searched Mattingly, and provided him with a $100 bill and

      a hoodie wired with audio-visual recording equipment. Detective Coleman

      then drove with Mattingly to Lemmon Street. Detective Coleman and other

      officers maintained visual surveillance of the street.


[7]   Mattingly exited Detective Coleman’s car and walked to the front porch of 430

      Lemmon Street. Mattingly knocked on the door, and Davis answered. The

      two went inside the home, and Mattingly used the $100 bill to purchase five

      oxycodone tablets from Davis. A third individual was in the residence at some

      point during the transaction, but Mattingly had little interaction with this

      person.

[8]   After completing the purchase of oxycodone, Mattingly left 430 Lemmon Street

      and returned to Detective Coleman’s vehicle. Mattingly turned the pills over to



      Court of Appeals of Indiana | Memorandum Decision 31A04-1501-CR-38 | November 23, 2015   Page 3 of 10
       Detective Coleman, who searched Mattingly for other items and then permitted

       Mattingly to leave.


[9]    On December 9, 2013, the State charged Davis with Dealing in a Controlled

       Substance, as a Class B felony, and Maintaining a Common Nuisance, as a

       Class D felony.2 A warrant was issued for Davis’s arrest; the warrant was

       served and Davis was arrested on December 10, 2013. On January 2, 2014, the

       State alleged Davis to be a Habitual Substance Offender;3 this allegation was

       dismissed before trial.


[10]   On November 18 and 19, 2014, the State tried Davis to a jury. At the

       conclusion of the trial, the jury found Davis guilty of Dealing in a Controlled

       Substance. The jury could not reach a consensus on the charge of Maintaining

       a Common Nuisance; the State moved to dismiss the charge, and the trial court

       granted that motion. A sentencing hearing was conducted on December 29,

       2014. At that hearing, the trial court entered judgment of conviction against

       Davis for Dealing in a Controlled Substance, and sentenced Davis to thirteen

       years imprisonment.


[11]   This appeal ensued.



                                      Discussion and Decision


       2
           I.C. § 35-48-4-13(b).
       3
           I.C. § 35-50-2-10. This provision of the Indiana Code was repealed, effective July 1, 2014.


       Court of Appeals of Indiana | Memorandum Decision 31A04-1501-CR-38 | November 23, 2015            Page 4 of 10
                                    Ex Parte Communication
[12]   In this appeal, Davis first contends that the trial court engaged in ex parte

       communication with the jury in response to a question from the jury regarding

       the meaning of “maintain” as it was used with respect to the charge that Davis

       had committed the offense of Maintaining a Common Nuisance.


[13]   Addressing constitutional claims related to ex parte communication between the

       court and a jury, our supreme court has “repeatedly noted the proper procedure

       for trial courts to follow when a deliberating jury makes a request for additional

       guidance during its deliberations.” Pendergrass v. State, 702 N.E.2d 716, 719

       (Ind. 1998). The court must

               notify the parties so they may be present in court and informed of the
               court's proposed response to the jury before the judge ever
               communicates with the jury. When this procedure is not followed, it
               is an ex parte communication and such communications between the
               judge and the jury without informing the defendant are forbidden.
               However, although an ex parte communication creates a presumption
               of error, such presumption is rebuttable and does not constitute per se
               grounds for reversal. When a trial judge responds to the jury’s request
               by denying it, any inference of prejudice is rebutted and any error
               deemed harmless.
       Pendergrass v. State, 702 N.E.2d 716, 719-20 (Ind. 1998) (quoting Bouye v. State,

       699 N.E.2d 620, 628 (Ind. 1998)). The prohibition against ex parte

       communications is to “‘prevent the jury from being improperly influenced by

       the judge.’” Id. (quoting Bouye, 699 N.E.2d at 629).


[14]   Our review of the record convinces us that there is no appealable issue on this

       point. Davis was not convicted of Maintaining a Common Nuisance; instead,

       Court of Appeals of Indiana | Memorandum Decision 31A04-1501-CR-38 | November 23, 2015   Page 5 of 10
       the jury was hung on this question, and the State dismissed the charge. There is

       thus no basis for an allegation of error from which Davis might argue for

       reversal.


                                  Sufficiency of the Evidence
[15]   Davis’s second issue asks us to consider whether the trial court erred in denying

       his motion for a directed verdict as to his charge for Dealing in a Controlled

       Substance, as a Class B felony. “[I]n order for a trial court to grant a directed

       verdict, there must be a complete lack of evidence on a material element of the

       crime or the evidence must be without conflict and susceptible to only an

       inference in favor of the defendant’s innocence.” Huber v. State, 805 N.E.2d

       887, 890 (Ind. Ct. App. 2004). We accordingly treat Davis’s argument on

       appeal as one challenging the sufficiency of the evidence. Id.


[16]   Our standard of review in such cases is well settled. We consider only the

       probative evidence and reasonable inferences supporting the verdict. Drane v.

       State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of

       witnesses or reweigh evidence. Id. We will affirm the conviction unless “no

       reasonable fact-finder could find the elements of the crime proven beyond a

       reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind.

       2000)). “[T]he evidence is sufficient if an inference may reasonably be drawn

       from it to support the verdict.” Id. (quoting Pickens v. State, 751 N.E.2d 331,

       334 (Ind. Ct. App. 2001)).




       Court of Appeals of Indiana | Memorandum Decision 31A04-1501-CR-38 | November 23, 2015   Page 6 of 10
[17]   Here, Davis was charged with Dealing in a Controlled Substance, as a Class B

       felony. To convict Davis of this offense, the State was required to prove beyond

       a reasonable doubt that Davis delivered or sold oxycodone pills to a

       confidential informant on or about 424 Lemmon Street in Corydon. See I.C. §

       35-48-4-2(a)(1)(C); App’x at 7.


[18]   In his brief, Davis contends that there was insufficient evidence of his

       possession of oxycodone prior to the transaction. In particular, Davis argues

       that the procedure used during the controlled buy was “deficient,” Appellant’s

       Br. at 12, that a third individual was present in the home and could have been

       the source of the drugs, and that Mattingly’s motivations in participating in the

       controlled buy were questionable. Davis thus insists that the entirety of the

       controlled buy, including its surveillance, was so compromised as to render the

       evidence insufficient to sustain a conviction.


[19]   We undertake our review of the record mindful of the standard of review. The

       evidence that favors the verdict is that Mattingly met with Deputy Coleman

       and, during this meeting, Mattingly engaged in a conversation on a

       speakerphone with Davis. During that conversation, Mattingly arranged to

       purchase oxycodone tablets from Davis; the conversation was recorded, and

       both Deputy Coleman and Mattingly testified that Davis’s voice was heard on

       the recording that was played for the jury. Deputy Coleman testified that he

       searched Mattingly thoroughly before and after the controlled buy, and that the

       only difference in Mattingly’s possessions were directly related to the buy:



       Court of Appeals of Indiana | Memorandum Decision 31A04-1501-CR-38 | November 23, 2015   Page 7 of 10
       Mattingly left for the buy with a $100 bill and without drugs on his person, and

       returned without the bill and with five tablets of oxycodone.


[20]   A review of the video recording of the controlled buy itself shows Mattingly

       interacting with an individual that he identified as Davis; Davis was present in

       person at trial, which afforded the jury an opportunity to examine both the

       video and Davis in order to weigh the evidence related to whether Davis had a

       role in the transaction. The video recording shows Davis admit Mattingly to

       the residence at 430 Lemmon Street and escort Mattingly to another room. In

       that room, the two men engage in a transaction, and Davis is shown at various

       times holding a stack of bills and a pill bottle. A third individual was present,

       but there is little or no interaction between Mattingly and that third individual.


[21]   This is sufficient evidence for a jury to infer that Davis sold oxycodone to

       Mattingly. Davis’s arguments to the contrary amount to requests that we

       reweigh evidence, which we cannot do. We accordingly affirm Davis’s

       conviction for Dealing in a Controlled Substance, as a Class B felony.


                                   Inappropriateness Review
[22]   We turn last to Davis’s contention that his sentence is inappropriate.


[23]   The authority granted to this Court by Article 7, § 6 of the Indiana Constitution

       permitting appellate review and revision of criminal sentences is implemented

       through Appellate Rule 7(B), which provides: “The Court may revise a

       sentence authorized by statute if, after due consideration of the trial court’s

       decision, the Court finds that the sentence is inappropriate in light of the nature
       Court of Appeals of Indiana | Memorandum Decision 31A04-1501-CR-38 | November 23, 2015   Page 8 of 10
       of the offense and the character of the offender.” Under this rule, and as

       interpreted by case law, appellate courts may revise sentences after due

       consideration of the trial court’s decision, if the sentence is found to be

       inappropriate in light of the nature of the offense and the character of the

       offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State,

       798 N.E.2d 852, 856-57 (Ind. 2003). The principal role of such review is to

       attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.


[24]   Upon conviction for Dealing in a Controlled Substance, as a Class B felony,

       Davis faced a possible sentencing range running from six to twenty years

       imprisonment, with an advisory term of ten years. I.C. § 35-50-2-5. The trial

       court sentenced Davis to thirteen years imprisonment.

[25]   The nature of Davis’s offense is generally unremarkable. In the context of a

       controlled buy, Davis sold five oxycodone pills to Mattingly for $100.


[26]   Davis’s character, though not the worst of the worst, does not speak well of

       him. Since 1984, Davis has had a series of convictions related to substance

       abuse, including convictions for Public Intoxication, Operating a Vehicle While

       Intoxicated, and Possession of Marijuana; he has also been convicted of Theft

       and Conversion. In several of these cases, Davis was afforded probation in lieu

       of prison sentences; in at least two cases, Davis’s probation was revoked for

       subsequent criminal conduct. The latest prior conviction and probation

       revocation occurred in October 2011, and came about due to a conviction for

       Operating a Vehicle While Intoxicated. Davis’s efforts at rehabilitation during


       Court of Appeals of Indiana | Memorandum Decision 31A04-1501-CR-38 | November 23, 2015   Page 9 of 10
       the trial proceedings are commendable, and we recognize the effect of his

       incarceration upon his family. Nevertheless, in light of a criminal history

       involving substance abuse over a period of nearly thirty years, it is apparent that

       Davis has not benefitted from corrective measures short of incarceration.


[27]   We accordingly conclude that Davis’s thirteen-year sentence is not

       inappropriate.



                                               Conclusion
[28]   Davis lacks any basis for an appeal related to the trial court’s statements to the

       jury. There was sufficient evidence to sustain Davis’s conviction, and his

       sentence is not inappropriate.


[29]   Affirmed.


       Baker, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 31A04-1501-CR-38 | November 23, 2015   Page 10 of 10
