MEMORANDUM DECISION
                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                 Mar 24 2016, 9:15 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                            CLERK
                                                                 Indiana Supreme Court
court except for the purpose of establishing                        Court of Appeals
                                                                      and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jane Ann Noblitt                                         Gregory F. Zoeller
Columbus, Indiana                                        Attorney General of Indiana

                                                         Karl Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

David A. Swift,                                          March 24, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         03A01-1509-CR-1456
        v.                                               Appeal from the Bartholomew
                                                         Superior Court
State of Indiana,                                        The Honorable James D. Worton,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         03D01-1504-F4-2096



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 03A01-1509-CR-1456 | March 24, 2016    Page 1 of 7
                                           Case Summary
[1]   David A. Swift challenges the sufficiency of evidence supporting his conviction

      for level 4 felony dealing in methamphetamine (“meth”). He also asserts that

      his sentence is inappropriate in light of the nature of the offense and his

      character. We affirm both his conviction and his sentence.


                              Facts and Procedural History
[2]   The evidence most favorable to the verdict is as follows. Late one night in

      October 2014, Columbus Police Department Narcotics Detectives Joshua

      McCrary and Jeremy Coomes were contacted by a confidential informant (“the

      CI”) about a possible purchase of meth from Swift in a controlled buy. The

      detectives met the CI in a parking lot near Swift’s apartment. They strip-

      searched the CI and searched his vehicle immediately before the sale,

      inventorying the contents. No contraband was found. The detectives equipped

      the CI with electronic monitoring equipment and an audio recording device.

      They gave him $250 in previously photocopied bills and instructed him to

      purchase an “eight ball,” or one-eighth of an ounce, of meth.


[3]   The detectives followed the CI to Swift’s apartment, parked at a safe distance,

      and watched as the CI approached and entered the apartment. Via their

      monitoring equipment, the detectives listened as the CI and Swift talked. Swift

      weighed the meth on a scale and gave it to the CI, who gave him $250 in

      exchange. During the controlled buy, the audio recording picked up the sounds



      Court of Appeals of Indiana | Memorandum Decision 03A01-1509-CR-1456 | March 24, 2016   Page 2 of 7
      of a small child, later determined to be Swift’s three-year-old daughter, who was

      present in the room.


[4]   When the CI exited Swift’s apartment, the detectives followed closely behind

      him to a nearby restaurant parking lot, where the CI relinquished the meth rock

      that he had purchased from Swift. The detectives again searched the CI’s

      person and vehicle and found no contraband or change in inventory since their

      previous searches. The detectives submitted the meth rock to the Indiana State

      Police Laboratory, where it was confirmed to contain meth and have a net

      weight of 3.39 grams.


[5]   The State charged Swift with level 4 felony dealing in methamphetamine. A

      jury found him guilty as charged. The trial court sentenced him to ten years,

      with eight executed to the Department of Correction (“DOC”) and two

      suspended to probation. The court found the aggravating circumstances to

      include Swift’s extensive criminal history, probation violations, and failures to

      successfully complete drug and alcohol treatment programs. During the

      sentencing hearing, the trial court noted that it was bothered by the presence of

      Swift’s young daughter during the drug deal. The trial court specifically found

      no mitigating circumstances.


[6]   Swift now appeals his conviction and sentence. Additional facts will be

      provided as necessary.




      Court of Appeals of Indiana | Memorandum Decision 03A01-1509-CR-1456 | March 24, 2016   Page 3 of 7
                                  Discussion and Decision
            Section 1 – The evidence is sufficient to support Swift’s
                                  conviction.
[7]   Swift maintains that the evidence is insufficient to support his conviction for

      dealing in methamphetamine. When reviewing a challenge to the sufficiency of

      evidence, we neither reweigh evidence nor judge witness credibility. Drane v.

      State, 867 N.E.2d 144, 146 (Ind. 2007). Rather, we consider only the evidence

      and reasonable inferences most favorable to the verdict and will affirm the

      conviction “unless no reasonable fact-finder could find the elements of the

      crime proven beyond a reasonable doubt.” Id. It is therefore not necessary that

      the evidence “overcome every reasonable hypothesis of innocence.” Id.

      (citation omitted).


[8]   A jury convicted Swift of level 4 felony dealing in methamphetamine. “A

      person who … knowingly or intentionally … delivers … methamphetamine,

      pure or adulterated … commits dealing in methamphetamine …. a Level 4

      felony if the amount of the drug involved is at least one (1) gram but less than

      five (5) grams.” Ind. Code § 35-48-4-1.1(a)(1)(C), -(c)(1).


[9]   At trial, the audio recording of the controlled buy was admitted into evidence.

      Among other information, the recording captured Swift’s request to his

      girlfriend to get a scale followed by the terms “two-fifty” and “three-fours.”

      State’s Ex. 1. See also Tr. at 49, 68 (“three-fours” refers to gram equivalent of an

      “eight ball”). The detectives testified concerning their use of the audio


      Court of Appeals of Indiana | Memorandum Decision 03A01-1509-CR-1456 | March 24, 2016   Page 4 of 7
       recording equipment as well as their observations of the CI and searches of his

       person and vehicle. The CI testified that while he was inside Swift’s apartment,

       Swift weighed an “eight ball” of meth and gave it to the CI in exchange for

       $250.


[10]   Swift essentially asks that we reweigh evidence and give credence to one of his

       two versions of the events. On the one hand, he claims that the recording

       actually captured a transaction in which the CI sold him marijuana and a gold

       necklace for forty-five dollars. Tr. at 150-51. On the other hand, he asserts that

       “two-fifty” refers to two dollars and fifty cents, which he allegedly gave to the

       CI in partial repayment of a ten-dollar debt, and that “three-fours” was a

       reference to the serial numbers on the dollar bills. Tr. at 149, 152, 159-60.

       Notably, the detectives’ searches of the CI produced nothing to substantiate

       either claim. More importantly, we remind Swift that we may not invade the

       jury’s province by reweighing evidence or judging witness credibility. We must

       decline his invitation to do so. The evidence most favorable to the verdict is

       sufficient to support Swift’s conviction.


         Section 2 – Swift has failed to demonstrate that his ten-year
                          sentence is inappropriate.
[11]   Swift asks that we reduce his sentence pursuant to Indiana Appellate Rule 7(B),

       which states that we “may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, [this] Court finds that the sentence is

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

       offender.” When a defendant requests appellate review and revision of his

       Court of Appeals of Indiana | Memorandum Decision 03A01-1509-CR-1456 | March 24, 2016   Page 5 of 7
       sentence, we have the power to affirm or reduce the sentence. Akard v. State,

       937 N.E.2d 811, 813 (Ind. 2010). In conducting our review, we do not look to

       see whether the defendant’s sentence is appropriate or if another sentence might

       be more appropriate; rather, the test is whether the sentence is “inappropriate.”

       Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). A defendant bears

       the burden of persuading this Court that his sentence meets the

       inappropriateness standard. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

       2007), clarified on reh’g, 875 N.E.2d 218.


[12]   In considering the nature of a defendant’s offense, “the advisory sentence is the

       starting point the Legislature has selected as an appropriate sentence.”

       Anglemyer, 868 N.E.2d at 494. Swift was sentenced to ten years pursuant to

       Indiana Code Section 35-50-2-5.5, which states that the sentencing range for a

       person convicted of a level 4 felony is two to twelve years, with an advisory

       term of six years. Although he correctly points out that the drug deal itself did

       not cause or threaten serious harm to any person or property, 1 the legislature

       designated the level of his offense based on the quantity of the drug sold, not on



       1
         To the extent that Swift now raises this as an allegedly overlooked mitigator, we emphasize that abuse of
       discretion and Rule 7(B) revision are separate analyses. King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App.
       2008). Swift has conflated these analyses in his brief. With respect to the nonviolent nature of his offense, he
       neither advanced this alleged mitigator for consideration at sentencing nor raised it here as an issue separate
       from his Rule 7(B) claim. Thus, he has waived this as a separate issue for our consideration, and we address
       the nonviolent nature of the offense only as it pertains to our Rule 7(B) analysis. Anglemyer, 875 N.E.2d at
       220 (Ind. 2007) (recognizing that except in certain circumstances involving guilty pleas, defendant is
       precluded from advancing mitigators for first time on appeal), opinion on reh’g. Similarly, waiver applies to
       Swift’s overlooked mitigator claim concerning the “victim” inducing or facilitating his offense. Appellant’s
       Br. at 8. Even so, we emphasize that a court may impose any sentence that is authorized by statute and
       permissible under the Indiana Constitution regardless of the presence or absence of aggravating or mitigating
       circumstances. Ind. Code § 35-38-1-7.1(d).

       Court of Appeals of Indiana | Memorandum Decision 03A01-1509-CR-1456 | March 24, 2016               Page 6 of 7
       the presence or absence of violence. We note, however, that the audio

       recording of the drug deal indicates that Swift conducted the sale in the

       presence of his three-year-old daughter, which was properly a cause for the trial

       court’s concern.


[13]   As for Swift’s character, his extensive criminal history includes convictions for

       violent offenses, including felony strangulation and misdemeanor domestic

       battery. He has numerous other misdemeanor convictions as well as probation

       violations, no-contact orders, and failures to appear for legal proceedings and

       drug and alcohol treatment. The presentence investigation report, to which he

       specifically directed the trial court’s attention, includes an entry indicating

       pending felony charges against him for dealing in narcotics, carrying a handgun

       with a prior felony conviction, and possession of an altered handgun.

       Appellant’s App. at 120; Tr. at 300. Simply put, for over a decade, Swift has

       repeatedly broken the law. He committed the present offense in the presence of

       his three-year-old daughter. His chronic failure to respond positively to

       leniency when offered does not bode well for his future success with sentencing

       alternatives outside the DOC. He has failed to demonstrate that his ten-year

       sentence is inappropriate. Consequently, we affirm.


[14]   Affirmed.


       Najam, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 03A01-1509-CR-1456 | March 24, 2016   Page 7 of 7
