MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                             Feb 06 2018, 9:52 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Carlos I. Carrillo                                       Curtis T. Hill, Jr.
Greenwood, Indiana                                       Attorney General of Indiana

                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jessica Mitchell,                                        February 6, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A02-1708-CR-2023
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Randy J. Williams,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79D01-1611-F6-1009



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1708-CR-2023 | February 6, 2018        Page 1 of 12
                                       Statement of the Case
[1]   Jessica Mitchell appeals her convictions and sentence for neglect of a

      dependent, as a Level 6 felony, and possession of a synthetic drug or a synthetic

      drug lookalike substance, as a Class A misdemeanor. Mitchell raises the

      following four issues for our review:


              1.       Whether the State presented sufficient evidence to support
                       Mitchell’s conviction for possession.


              2.       Whether the trial court committed fundamental error
                       when it admitted certain evidence.


              3.       Whether Mitchell’s convictions violate Indiana’s
                       prohibitions against double jeopardy.


              4.       Whether Mitchell’s three-year aggregate sentence, with
                       180 days executed and the remainder to be served on
                       home detention, is inappropriate in light of the nature of
                       the offenses and her character.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On November 8, 2016, Mitchell, while pushing her two-month-old infant in a

      stroller, collapsed in the lobby of the Quality Inn Suites in Lafayette. Toby

      Gregory, a hotel clerk, observed Mitchell fall multiple times and that she

      “appear[ed] to be out of it.” Appellant’s App. Vol. II at 11. Gregory contacted

      the Lafayette Police Department. While officers were en route to the scene,


      Court of Appeals of Indiana | Memorandum Decision 79A02-1708-CR-2023 | February 6, 2018   Page 2 of 12
      Charles Kalinowski, a hotel guest, observed Mitchell “laying [sic] on the

      ground” next to a stroller. Tr. Vol. II at 18. Kalinski observed that Mitchell

      was “completely incoherent” and speaking “gibberish.” Id. at 19. Kalinski

      further noticed a “very pungent[,] acrid odor” that he had “never . . . come

      across” before. Id. at 18.


[4]   Lafayette Police Department Officers William Snider and Brian Landis arrived

      on the scene. The officers observed that Mitchell had droopy eyes, poor motor

      skills, slurred and hard-to-understand speech, and slow movements. When

      Officer Snider asked Mitchell for identification, Mitchell “almost fell asleep”

      while producing it. Id. at 8. Officer Landis, who has more than fourteen years

      of police experience, believed the Mitchell’s impairment was due to “something

      other than alcohol.” Id. at 28.


[5]   The officers asked Mitchell if she had taken any drugs, and Mitchell initially

      denied any drug use. The officers then asked if she had taken any prescription

      medications specifically, and Mitchell stated that she had taken some

      hydrocodone and an antibiotic. She denied any use of alcohol or illegal drugs.


[6]   The officers then took turns reviewing the hotel’s surveillance video. After

      Officer Landis had reviewed that video, he told Mitchell that “it was apparent

      that she was impaired on something.” Id. at 29. Mitchell then admitted that

      “she had smoked spice,” or synthetic marijuana, earlier that day. Id.


[7]   The officers then placed Mitchell under arrest for neglect of a dependent.

      Incident to her arrest, the officers searched her purse and stroller, which were

      Court of Appeals of Indiana | Memorandum Decision 79A02-1708-CR-2023 | February 6, 2018   Page 3 of 12
      near Mitchell’s person in the hotel lobby. In the stroller, the officers found a

      burnt, homemade cigarette that contained within it a leafy substance. Based on

      his training and experience, Officer Landis concluded that that substance

      “appeared . . . to be some type of synthetic drug,” namely, synthetic marijuana.

      Id. at 30. The officers also found plastic bags that contained the same

      substance. The State then charged Mitchell with neglect of a dependent, as a

      Level 6 felony, and with possession of a synthetic drug or a synthetic drug

      lookalike substance, as a Class A misdemeanor. The trial court found Mitchell

      guilty after a bench trial.


[8]   The court then held a sentencing hearing. Following that hearing, the court

      found as aggravating circumstances Mitchell’s criminal history and her history

      of substance abuse. The court also found Mitchell’s history of not cooperating

      with the probation department and her child support arrearage to be

      aggravating circumstances. As a mitigating circumstance, the court found that

      Mitchell has “mental health issues” that she is “trying to address . . . as best as

      [she] can.” Id. at 62. The court ordered Mitchell to serve an aggregate term of

      three years, with 180 days to be served in the Tippecanoe County Jail and the

      remainder to be served on home detention. This appeal ensued.


                                     Discussion and Decision
             Issue One: Sufficiency of the Evidence for the Possession Conviction

[9]   On appeal, Mitchell first asserts that the State failed to present sufficient

      evidence to support her conviction for possession of a synthetic drug or a


      Court of Appeals of Indiana | Memorandum Decision 79A02-1708-CR-2023 | February 6, 2018   Page 4 of 12
       synthetic drug lookalike substance, as a Class A misdemeanor. In such appeals,

       “[o]ur standard of review is deferential to the factfinder: ‘we consider only the

       evidence and reasonable inferences most favorable to the convictions, neither

       reweighing evidence nor reassessing witness credibility.’” Taylor v. State, 86

       N.E.3d 157, 163 (Ind. 2017) (quoting Griffith v. State, 59 N.E.3d 947, 958 (Ind.

       2016)). “We will reverse only if no reasonable factfinder could find [the

       defendant] guilty.” Id. at 163-64.


[10]   According to Mitchell, the State’s evidence does not show that she had actual

       or constructive possession of the stroller in which the synthetic marijuana was

       found.1 “A person actually possesses contraband when she has direct physical

       control over it.” Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). We agree with

       the State that the evidence most favorable to the judgment permitted the fact-

       finder to conclude that Mitchell had direct physical control over the stroller

       and, therefore, the synthetic marijuana. The evidence established that Mitchell

       was in the hotel lobby pushing her two-month-old infant in the stroller at the

       time she initially collapsed, which was shortly followed by the officers arriving




       1
          In the trial court, Mitchell’s counsel moved for a directed verdict on the State’s possession charge on the
       basis that the State did not produce scientific evidence to show that the substance was synthetic marijuana
       and also because the officers’ testimony showed that they did not field test the synthetic marijuana. But the
       trial court properly rejected that argument on the basis of the officers’ observations, training, and experience.
       And Mitchell does not present this purported issue on appeal with argument supported by cogent reasoning.
       See Ind. Appellate Rule 46(A)(8)(a). Moreover, insofar as Mitchell’s brief conflates her sufficiency challenge
       with her challenge under Miranda v. Arizona, 384 U.S. 436 (1966), and double jeopardy, we address those
       other arguments below.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1708-CR-2023 | February 6, 2018              Page 5 of 12
       on the scene. The officers then discovered the synthetic marijuana in the

       stroller.


[11]   Mitchell asserts on appeal that that evidence does not demonstrate direct

       physical control because, while she was collapsed on the floor, Gregory

       attended to the infant in the stroller. But the fact-finder was free to conclude

       that the contraband found inside the stroller was placed there prior to Mitchell’s

       collapse and the arrival of Gregory and the officers. As such, we hold that the

       State’s evidence is sufficient to demonstrate Mitchell’s actual possession of the

       synthetic marijuana.


                                         Issue Two: Fundamental Error

[12]   Mitchell next asserts that the trial court erred when it permitted the officers to

       testify that Mitchell had said to them, in the hotel lobby, that she had ingested

       synthetic marijuana on November 8, 2016. In particular, Mitchell asserts that

       the trial court erred because those statements were made while she was subject

       to a custodial interrogation, yet the officers had not Mirandized her pursuant to

       that purported interrogation.2


[13]   Mitchell did not object in the trial court to the admission of her statements

       under the theory she now raises on appeal. As such, to demonstrate error on




       2
         Mitchell also asserts that the trial court erred when it permitted the evidence seized from the stroller as a
       search incident to her arrest. However, when the State sought to admit that evidence in the trial court,
       Mitchell’s counsel informed the court that he had “[n]o objection.” Tr. Vol. II at 33. Our Supreme Court
       has held that fundamental error is not available in such circumstances. Halliburton v. State, 1 N.E.3d 670,
       678-79 (Ind. 2013). As such, we do not consider this argument on appeal.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1708-CR-2023 | February 6, 2018              Page 6 of 12
       appeal, she must show that the alleged error was a fundamental error. To show

       a fundamental error, Mitchell must “show that the trial court should have

       raised the issue sua sponte due to a blatant violation of basic and elementary

       principles, undeniable harm or potential for harm, and prejudice that makes a

       fair trial impossible.” Taylor, 86 N.E.3d at 162.


[14]   However, Mitchell does not discuss the fundamental-error standard of review in

       her brief on appeal, and she does not relate her evidentiary challenge to that

       standard. As such, she does not demonstrate how the purported evidentiary

       error she now raises meets the high burden of having made a fair trial

       impossible. See Ind. Appellate Rule 46(A)(8)(a). She also does not cite any

       authority for her apparent position that the trial court should have raised this

       evidentiary issue sua sponte despite the silence of Mitchell’s counsel with respect

       to the theory Mitchell now raises on appeal. See id. Although claims of

       fundamental error may be raised for the first time on appeal, it remains the

       appellant’s burden to persuade this Court that such error occurred. We

       conclude that Mitchell has not met that burden.


                                       Issue Three: Double Jeopardy

[15]   We next consider Mitchell’s argument that her conviction for neglect of a

       dependent, as a Level 6 felony, and her conviction for possession of synthetic

       drug or a synthetic drug lookalike substance, as a Class A misdemeanor, violate

       the actual-evidence test under Article 1, Section 14 of the Indiana Constitution.

       We review alleged double jeopardy violations de novo. Ellis v. State, 29 N.E.3d

       792, 797 (Ind. Ct. App. 2015), trans. denied.
       Court of Appeals of Indiana | Memorandum Decision 79A02-1708-CR-2023 | February 6, 2018   Page 7 of 12
[16]   Article 1, Section 14 of the Indiana Constitution prohibits double jeopardy,

       providing that “[n]o person shall be put in jeopardy twice for the same offense.”

       As the Indiana Supreme Court has explained:


               In Richardson v. State, 717 N.E.2d 32 (Ind. 1999)[,] this Court
               concluded that two or more offenses are the same offense in
               violation of article 1, section 14 if, with respect to either the
               statutory elements of the challenged crimes or the actual evidence
               used to obtain convictions, the essential elements of one
               challenged offense also establish the essential elements of another
               challenged offense. Under the actual evidence test, we examine
               the actual evidence presented at trial in order to determine
               whether each challenged offense was established by separate and
               distinct facts. Id. at 53. To find a double jeopardy violation
               under this test, we must conclude that there is “a reasonable
               possibility that the evidentiary facts used by the fact-finder to
               establish the essential elements of one offense may also have
               been used to establish the essential elements of a second
               challenged offense.” Id. The actual evidence test is applied to all the
               elements of both offenses. “In other words . . . the Indiana Double
               Jeopardy Clause is not violated when the evidentiary facts establishing
               the essential elements of one offense also establish only one or even
               several, but not all, of the essential elements of a second offense.” Spivey
               v. State, 761 N.E.2d 831, 833 (Ind. 2002).

               Our precedents “instruct that a ‘reasonable possibility’ that the
               jury used the same facts to reach two convictions requires
               substantially more than a logical possibility.” Lee v. State, 892
               N.E.2d 1231, 1236 (Ind. 2008) (citing cases). The reasonable
               possibility standard “fairly implements the protections of the
               Indiana Double Jeopardy Clause and also permits convictions for
               multiple offenses committed in a protracted criminal episode
               when the case is prosecuted in a manner that insures that
               multiple guilty verdicts are not based on the same evidentiary
               facts.” Richardson, 717 N.E.2d at 53 n.46. The existence of a

       Court of Appeals of Indiana | Memorandum Decision 79A02-1708-CR-2023 | February 6, 2018   Page 8 of 12
               “‘reasonable possibility’ turns on a practical assessment of whether the
               [fact finder] may have latched on to exactly the same facts for both
               convictions.” Lee, 892 N.E.2d at 1236. We evaluate the evidence
               from the jury’s perspective and may consider the charging
               information, jury instructions, and arguments of counsel. Id. at
               1234.


       Garrett v. State, 992 N.E.2d 710, 719-20 (Ind. 2013) (emphases added; last

       alteration original). Thus, under Spivey, in order for there to be a double

       jeopardy violation under the actual-evidence test, the evidentiary footprint for

       all the elements required to prove one offense must be the same evidentiary

       footprint as that required to prove all the elements of another offense. Berg v.

       State, 45 N.E.3d 506, 510 (Ind. Ct. App. 2015).


[17]   Mitchell’s two convictions do not violate the actual-evidence test. Her

       conviction for neglect of a dependent required, among other things, proof that

       Mitchell had “the care of a dependent.” See Ind. Code § 35-46-1-4(a) (2016).

       Mitchell’s conviction for possession of a synthetic drug or a synthetic drug

       lookalike substance required no such evidence. See I.C. § 35-48-4-11.5(c).

       Accordingly, Mitchell’s two convictions are not contrary to the actual-evidence

       test. See Berg, 45 N.E.3d at 510.


[18]   Still, while Mitchell does not clearly set this theory out in her brief, in substance

       her double-jeopardy argument appears to be that her possession conviction was

       a factually lesser-included offense to her neglect conviction. Insofar as this was

       Mitchell’s intended double-jeopardy theory, we reject it. The factual predicate



       Court of Appeals of Indiana | Memorandum Decision 79A02-1708-CR-2023 | February 6, 2018   Page 9 of 12
       for her neglect conviction was her impairment, not her possession of the

       contraband. Thus, there is no double jeopardy violation here.


                                Issue Four: Indiana Appellate Rule 7(B)

[19]   Finally, Mitchell asserts that her three-year aggregate sentence, with 180 days to

       be served in the Tippecanoe County Jail and the remaining two and one-half

       years to be served on home detention, is inappropriate in light of the nature of

       the offenses and her character. Indiana Appellate Rule 7(B) provides that “[t]he

       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 of the offense and the character of the offender.” This Court

       has frequently recognized that “[t]he advisory sentence is the starting point the

       legislature has selected as an appropriate sentence for the crime committed.”

       See, e.g., Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017). And the

       Indiana Supreme Court has explained that:


               The principal role of appellate review should be to attempt to
               leaven the outliers . . . but not achieve a perceived “correct”
               result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
               2008). Defendant has the burden to persuade us that the
               sentence imposed by the trial court is inappropriate. Anglemyer v.
               State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007),
               decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).


       Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).


[20]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       Court of Appeals of Indiana | Memorandum Decision 79A02-1708-CR-2023 | February 6, 2018   Page 10 of 12
       receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we

       regard a sentence as inappropriate at the end of the day turns on “our sense of

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

       others, and myriad other factors that come to light in a given case.” Id. at 1224.

       The question is not whether another sentence is more appropriate, but rather

       whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

       268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless

       overcome by compelling evidence portraying in a positive light the nature of the

       offense (such as accompanied by restraint, regard, and lack of brutality) and the

       defendant’s character (such as substantial virtuous traits or persistent examples

       of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[21]   Mitchell’s argument that her sentence is inappropriate with respect to the nature

       of the offenses is that the State presented insufficient evidence of her offenses,

       that the trial court improperly admitted her admission and the synthetic

       marijuana against her, and that the same evidence was used to convict her of

       both offenses. As explained above, we have already rejected those arguments.

       Mitchell also notes that the child was not injured by her actions and is now in

       the care of the child’s biological father. Regarding her character, Mitchell

       states: she has a GED, she has mental illnesses, she has sought mental health

       counseling and substance abuse treatment, she does not have a felony

       conviction, and she is trying to be more responsible with respect to her child




       Court of Appeals of Indiana | Memorandum Decision 79A02-1708-CR-2023 | February 6, 2018   Page 11 of 12
       and others. She also states that she is “not the worst of the worst.” Appellant’s

       Br. at 21.3


[22]   We cannot say that Mitchell’s three-year aggregate term, with 180 days

       executed and the remainder to be served on home detention, is inappropriate.

       Mitchell’s offenses put a two-month-old infant in unsafe circumstances. She

       also possessed synthetic marijuana in close proximity to that infant. Further,

       Mitchell’s character, which includes some criminal history and extensive

       substance abuse, does not warrant this Court’s intervention in the carefully

       tailored sentence imposed by the trial court. We affirm Mitchell’s sentence.


                                                      Conclusion

[23]   In sum, we affirm Mitchell’s convictions and sentence.


[24]   Affirmed.


       Mathias, J., and Barnes, J., concur.




       3
         Mitchell further states that her “conduct was a part of the same criminal episode” and, as such, “should
       have ran [sic] concurrently instead of consecutively.” Appellant’s Br. at 22. This passing statement in
       Mitchell’s brief is not an argument supported by cogent reasoning, and we do not consider it. App. R.
       46(A)(8)(a).

       Court of Appeals of Indiana | Memorandum Decision 79A02-1708-CR-2023 | February 6, 2018         Page 12 of 12
