MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                         Sep 10 2015, 8:37 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
Derick W. Steele                                         Gregory F. Zoeller
Kokomo, Indiana                                          Attorney General of Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Charles A. Clark,                                        September 10, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         34A04-1502-CR-86
        v.                                               Appeal from the Howard County
                                                         Superior Court
State of Indiana,                                        The Honorable George A.
Appellee-Plaintiff                                       Hopkins, Judge
                                                         Trial Court Cause No.
                                                         34D04-1402-FD-32



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 34A04-1502-CR-86 | September 10, 2015   Page 1 of 8
                                          Case Summary
[1]   Charles A. Clark was stopped by the police for crossing the center line of the

      road. During the stop, the officers saw a baggie of what appeared to be crack

      cocaine under the open driver’s-side door and placed the baggie on the hood of

      the patrol car. A struggle ensued while the officers were handcuffing Clark, and

      Clark moved toward the baggie on the hood. When the struggle ended, the

      baggie was gone with only a wet spot that looked like saliva in its place.


[2]   Clark was convicted of Class D felony obstruction of justice, and the trial court

      sentenced him to three years. Clark now appeals, arguing that the evidence is

      insufficient to support his conviction and that his three-year sentence is

      inappropriate.

[3]   Because it is reasonable to infer that Clark ate the baggie, we conclude that the

      evidence is sufficient to support his conviction for obstruction of justice. We

      also conclude that Clark’s three-year sentence is appropriate given the nature of

      the offense and his character. We therefore affirm the trial court.



                            Facts and Procedural History
[4]   On the night of February 27, 2014, Kokomo Police Department Officer Jason

      Maynard stopped Clark for driving across the center line of the road. Sergeant

      Teresa Kelley heard Officer Maynard call in the traffic stop and went to the

      scene. When Officer Maynard approached Clark in his car, he saw that Clark’s

      hands were shaking and that he was avoiding eye contact. Due to Clark’s

      Court of Appeals of Indiana | Memorandum Decision 34A04-1502-CR-86 | September 10, 2015   Page 2 of 8
      “extreme nervousness,” Officer Maynard asked for a canine unit, and Officer

      Ryan Shuey came with his dog. Tr. p. 34. Officer Shuey’s dog detected the

      presence of a controlled substance on the driver’s side of the car. After

      removing Clark from his car, Officer Maynard and Sergeant Kelley began

      searching the car for drugs. The officers found a baggie of what appeared to be

      crack cocaine directly underneath the open driver’s-side door.

[5]   Officer Maynard told Clark that he was under arrest. While Officer Maynard

      was handcuffing him, Clark started flailing his right arm to avoid the handcuffs.

      Sergeant Kelley set the baggie on the hood of Officer Maynard’s patrol car, and

      then went to assist him. During the struggle, Clark either lunged or was pushed

      toward the hood of the patrol car. To gain control, Officer Maynard leaned

      Clark over the hood, at which point Clark lifted himself off the hood and

      moved forward several inches. According to Sergeant Kelley, it “appeared”

      that Clark “had taken the baggie and put it in his mouth, used his mouth to go

      up on the top of the hood, swipe it and swallow it.” Id at 101. Sergeant Kelley

      called out that Clark had eaten the evidence. All three officers saw that the

      baggie of evidence was gone and in its place was what appeared to be a smear

      of saliva and mouth marks.


[6]   Officer Maynard asked Clark to open his mouth several times; although Clark

      initially refused, he eventually complied. A search of the hood and the

      surrounding area yielded nothing. Later that night, Officer Maynard obtained a

      search warrant for the contents of Clark’s stomach. Officer Maynard took

      Clark to St. Joseph Hospital, but the doctor was unable to retrieve anything

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       from his stomach. Accordingly, the baggie and its contents were never

       recovered.

[7]    The State charged Clark with Class D felony obstruction of justice and Class A

       misdemeanor resisting law enforcement. Clark represented himself at trial.

       The jury found him guilty as charged. At the sentencing hearing, the trial court

       identified one aggravator—Clark’s criminal history—and no mitigators. The

       court sentenced him to three years in the Indiana Department of Correction for

       obstruction of justice and one year for resisting law enforcement, to be served

       concurrently.


[8]    Clark now appeals his conviction and sentence for obstruction of justice only.



                                  Discussion and Decision
[9]    Clark raises two issues on appeal. First, he contends that the evidence is

       insufficient to support his conviction for obstruction of justice. Second, he

       contends that his three-year sentence for obstruction of justice is inappropriate

       based on the nature of the offense and his character.



                              I. Sufficiency of the Evidence
[10]   When reviewing sufficiency-of-evidence claims, we consider only the probative

       evidence and reasonable inferences supporting the verdict without weighing the

       evidence or assessing witness credibility. The evidence is sufficient if a

       reasonable trier of fact could conclude that the defendant was guilty beyond a

       Court of Appeals of Indiana | Memorandum Decision 34A04-1502-CR-86 | September 10, 2015   Page 4 of 8
       reasonable doubt. Lewis v. State, 34 N.E.3d 240, 245 (Ind. 2015). Moreover,

       circumstantial proof is permissible the evidence is sufficient if an inference may

       reasonably be drawn from it to support the verdict. Drane v. State, 867 N.E.2d

       144, 147 (Ind. 2007).


[11]   In order to convict Clark as charged here, the State had to prove that he altered,

       damaged, or removed the plastic baggie with the intent to prevent it from being

       used as evidence in either an official proceeding or an investigation. See Ind.

       Code Ann. § 35-44.1-2-2(a)(3) (West Supp. 2013).

[12]   Clark argues that the evidence is insufficient to support his conviction because

       no one actually saw him put the baggie in his mouth.1 However, the State

       presented significant circumstantial evidence through the testimony of the three

       officers. When Officer Maynard attempted to handcuff Clark, Clark resisted.

       Sergeant Kelley set a baggie of what appeared to be crack cocaine on the hood

       of Officer Maynard’s patrol car, and then went to assist Officer Maynard. At

       some point during the struggle to put handcuffs on Clark, he either lunged

       toward the patrol car or was forced onto the hood of the car with his face near

       where Sergeant Kelley put the baggie. At that point, Sergeant Kelley saw Clark

       appear to eat the baggie, and she called out that Clark had eaten the baggie.




       1
         Clark directs us to the distinction between his case and Mullins v. State, 717 N.E.2d 902 (Ind. Ct. App.
       1999). In Mullins, the officer actually saw the defendant eat the crack cocaine. However nothing in Mullins
       suggests that a case may not be proven by circumstantial evidence or precludes the trier of fact from making
       inferences based on the evidence. Id. at 903 (“We look instead to the evidence favorable to the judgment,
       along with any inferences reasonably drawn therefrom. We will affirm a judgment that is supported by
       substantial evidence of probative value.”).

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       The officers noticed that the baggie was gone and that there was a wet smudge

       that looked like saliva on the hood of Officer Maynard’s car where the baggie

       had been.


[13]   Although Clark asserts that it is “mere speculation” that he ate the baggie,

       Appellant’s Br. p. 5, the facts adduced at trial show otherwise: the baggie was

       on the hood of the car, Clark was on the hood of the car, and as soon as the

       struggle between Clark and Officer Maynard ended, the baggie was gone with

       only a wet spot that looked like saliva in its place. It was not unreasonable for

       the jury to infer from this that Clark ate the baggie. We therefore find that the

       evidence is sufficient to support Clark’s conviction for obstruction of justice.



                                              II. Sentencing
[14]   Clark also contends that his three-year sentence for obstruction of justice is

       inappropriate given the nature of the offense and his character. He asks us to

       reduce his sentence to the advisory term of eighteen months.

[15]   Our appellate rules authorize revision of 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.” Ind.

       Appellate Rule 7(B). “[A] defendant must persuade the appellate court that his

       or her sentence has met this inappropriateness standard of review.” Childress v.

       State, 848 N.E.2d 1073, 1080 (Ind. 2006).




       Court of Appeals of Indiana | Memorandum Decision 34A04-1502-CR-86 | September 10, 2015   Page 6 of 8
[16]   The principal role of Rule 7(B) review “should be to attempt to leaven the

       outliers, and identify some guiding principles for trial courts and those charged

       with improvement of the sentencing statutes, but not to achieve a perceived

       ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008). Whether a sentence is inappropriate ultimately turns on the 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. Id. at 1224.


[17]   A person who commits a Class D felony (for a crime committed before July 1,

       2014) shall be imprisoned for a fixed term of between six months and three

       years, with the advisory sentence being one and one-half years. Ind. Code § 35-

       50-2-7. Here, the trial court sentenced Clark to three years.

[18]   As for the nature of the offense, Clark argues that because he did not harm or

       threaten to harm a witness, this was a mere “run-of-the-mill attempt to remove

       evidence that may have been used against him.” Appellant’s Br. p. 7. But

       Clark did not merely “attempt” to obstruct justice, he actually obstructed justice

       by altering, damaging, or removing the baggie. In effect, he evaded

       prosecution, or even an investigation, for possession of a controlled substance.

       The nature of the offense supports Clark’s three-year sentence.

[19]   As for Clark’s character, the Presentence Investigation Report shows that he

       has been convicted of two misdemeanors and four felonies: misdemeanor

       possession of marijuana/hash oil/hashish (1993) and misdemeanor operating a

       motor vehicle without ever receiving a license (1993); felony dealing in cocaine


       Court of Appeals of Indiana | Memorandum Decision 34A04-1502-CR-86 | September 10, 2015   Page 7 of 8
       (1994 and 2001); and felony possession of cocaine (2007 and 2008).

       Appellant’s App. p. 87-89. The PSI concludes that Clark is at high risk to

       reoffend. Id. at 91. At sentencing, Clark did not advance any mitigating

       factors. Tr. p. 166. Nothing in Clark’s character indicates that a three-year

       sentence is inappropriate.

[20]   Affirmed.

[21]   ROBB, J., and PYLE, J., concur.




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