MEMORANDUM DECISION                                                             FILED
                                                                            Apr 12 2018, 5:29 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                                    CLERK
                                                                            Indiana Supreme Court
precedent or cited before any court except for the                             Court of Appeals
                                                                                 and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Steven E. Ripstra                                         Curtis T. Hill, Jr.
Ripstra Law Office                                        Attorney General of Indiana
Jasper, Indiana
                                                          James B. Martin
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA


Kevin B. Streete,                                         April 12, 2018

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          51A01-1706-CR-1458
        v.                                                Appeal from the Martin Circuit
                                                          Court.
                                                          The Honorable Lynne E. Ellis,
State of Indiana,                                         Judge.
Appellee-Plaintiff.                                       Trial Court Cause No.
                                                          51C01-1501-F2-16




Barteau, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 51A01-1706-CR-1458 | April 12, 2018               Page 1 of 16
                                           Statement of the Case
[1]   Kevin B. Streete appeals his convictions of and sentence for conspiracy to
                                                                                    1
      commit dealing in methamphetamine, a Level 2 felony; dealing in

      methamphetamine, a Level 2 felony; dealing in methamphetamine, a Level 5
                                                                                2
      felony; and dealing in marijuana, a Level 6 felony. We affirm.


                                                          Issues
[2]   Streete presents four issues, which we expand and restate as:


                 I.       Whether there was sufficient evidence to sustain Streete’s
                          convictions.
                 II.      Whether the trial court erred by admitting evidence seized
                          as a result of a search of Streete’s residence.
                 III.     Whether there was sufficient probable cause for the
                          issuance of the first search warrant for the search of
                          Streete’s residence.
                 IV.      Whether the trial court erred by not giving Streete’s
                          proposed jury instruction.
                 V.       Whether Streete’s sentence is inappropriate.




      1
          Ind. Code § 35-41-5-2 (1977), (2014); § 35-48-4-1.1 (2006), (2014).
      2
          Ind. Code § 35-48-4-10 (2014).


      Court of Appeals of Indiana | Memorandum Decision 51A01-1706-CR-1458 | April 12, 2018   Page 2 of 16
                               Facts and Procedural History
[3]   In August 2014, Streete sold methamphetamine to a confidential informant (CI)

      at his house. James Mesarosh and Tiffany Baugh Mesarosh, friends of Streete,

      were also present at his house at the time and participated in the sale.


[4]   Further, on December 15, 2014, police obtained a judicial order allowing them

      to intercept all incoming and outgoing voice and text message communications

      from the cellular telephone belonging to Sean Killion. Two days later, the

      police intercepted several phone calls between Killion and Streete, and, based

      upon the conversation, police believed drugs and a drug deal were being

      discussed.


[5]   In addition, police executed search warrants at Streete’s home on January 28,

      2015, and January 30, 2015. As a result of these searches, marijuana and

      methamphetamine were seized.


[6]   Based upon these events, Streete was charged with four offenses and an

      allegation of being an habitual offender in January 2015. In June 2015, under a

      separate cause number, the State filed twelve additional charges against Streete

      as well as alleging that he is an habitual offender. Eventually, the State reduced

      and consolidated all of the charges under one cause number. Thus, the

      amended information filed in February 2017 charged Streete with conspiracy to

      commit dealing in methamphetamine, a Level 2 felony; dealing in

      methamphetamine, a Level 2 felony; dealing in methamphetamine, a Level 5

      felony; dealing in marijuana, a Level 6 felony; dealing in methamphetamine, a

      Court of Appeals of Indiana | Memorandum Decision 51A01-1706-CR-1458 | April 12, 2018   Page 3 of 16
      Level 4 felony; dealing in marijuana, a Level 5 felony; and being an habitual

      offender. A jury found Streete guilty of conspiracy to commit dealing in

      methamphetamine; Level 2 felony dealing in methamphetamine; Level 5 felony

      dealing in methamphetamine; Level 6 felony dealing in marijuana, and he

      admitted to being an habitual offender. The trial court sentenced Streete to an

      aggregate sentence of forty and one-half years. This appeal ensued.


                                   Discussion and Decision
                                 I. Sufficiency of the Evidence
[7]   Streete first contends that the evidence is insufficient to support his convictions.

      When we review a challenge to the sufficiency of the evidence, we neither

      reweigh the evidence nor judge the credibility of the witnesses. Sandleben v.

      State, 29 N.E.3d 126, 131 (Ind. Ct. App. 2015), trans. denied. Instead, we

      consider only the evidence most favorable to the verdict and any reasonable

      inferences drawn therefrom. Id. If there is substantial evidence of probative

      value from which a reasonable fact-finder could have found the defendant

      guilty beyond a reasonable doubt, the judgment will not be disturbed. Labarr v.

      State, 36 N.E.3d 501, 502 (Ind. Ct. App. 2015).


[8]   Streete does not point to any element of any offense as being unsupported by

      the State’s evidence. Rather, he launches a global challenge to the State’s

      evidence in a very non-specific, unsystematic manner, and, although he does

      not appear to challenge his conspiracy conviction, he does cursorily mention in

      his brief the two phone calls between he and Killion that were intercepted by


      Court of Appeals of Indiana | Memorandum Decision 51A01-1706-CR-1458 | April 12, 2018   Page 4 of 16
       police, both of which relate to the conspiracy offense. To that end, we will

       briefly address the claim.


                               a. Conspiracy to Deal Methamphetamine

[9]    Streete claims, “[n]either call contained incriminating statements.” Appellant’s

       Br. p. 16. In testifying at trial about the content of the phone calls between

       Streete and Killion, Detective Sergeant Hornbrook with the Indiana State

       Police Drug Enforcement Section explained that drug dealers will not mention

       drugs in their phone conversations because they want to be as cautious as

       possible. Typically, as did Streete and Killion, they indicate they want to

       see/meet with the person or that they have something for the person.

       Moreover, during his police interview, Streete was asked about his reference to

       the “new sh*t [ ] got today. Ahh, it’s, ahh, like fresh . . . but you probably

       don’t feel like using it right now, do ya?” Tr. Vol. 4, p. 82. He indicated that at

       that time he had fresh methamphetamine. Id. at 47.


[10]   When the sufficiency of the evidence is challenged on appeal, a reviewing court

       does not reweigh the evidence or judge the credibility of the witnesses, and it

       respects the jury’s exclusive province to weigh any conflicting evidence. Collier

       v. State, 846 N.E.2d 340, 344 (Ind. Ct. App. 2006), trans. denied. Streete’s

       argument is merely a request to reweigh the evidence, evaluate the credibility of

       the witnesses, and invade the province of the jury, which we cannot do.




       Court of Appeals of Indiana | Memorandum Decision 51A01-1706-CR-1458 | April 12, 2018   Page 5 of 16
                           b. Dealing in Methamphetamine, Level 2 felony

[11]   Streete presents no argument on this issue as to this particular conviction.

       Therefore, the issue is waived. See Sandleben, 29 N.E.3d at 136 (failure to

       present cogent argument on an issue waives that issue for appellate review).


                           c. Dealing in Methamphetamine, Level 5 felony

[12]   Although the bulk of Streete’s argument is merely a summary of the evidence

       from trial, he does assert that the testimony of James and Tiffany implicating

       him in the sale of methamphetamine to the CI was not credible, especially

       given the favorable resolutions they received for the charges stemming from

       their involvement in the drug sale.


[13]   First, we note that the jury was aware of both James’s and Tiffany’s plea

       agreements because they were discussed and entered as exhibits at Streete’s

       trial. Moreover, this Court cannot evaluate witness credibility. Id. at 131.


                                          d. Dealing in Marijuana

[14]   This issue is waived due to Streete’s failure to present argument thereon. See id.

       at 136 (failure to present cogent argument on an issue waives that issue for

       appellate review).


                                     II. Admission of Evidence
[15]   Streete argues that the trial court erred in denying him a full and fair hearing on

       his motion to suppress. In the trial court, Streete filed motions to suppress the

       evidence seized during the execution of two search warrants at his home. At


       Court of Appeals of Indiana | Memorandum Decision 51A01-1706-CR-1458 | April 12, 2018   Page 6 of 16
       the hearing on the first motion to suppress, Streete began to question a police

       officer involved in obtaining the search warrant about the investigation

       underlying her search warrant affidavit. The State objected arguing that, when

       the adequacy of a warrant comes under attack, the court may not hear further

       evidence but is limited to reviewing only the evidence presented to the issuing

       judge to determine whether it is sufficient to establish probable cause. On this

       basis, the trial court sustained the State’s objections and subsequently denied

       Streete’s motion to suppress. Gleaning what we can from his brief, it appears

       Streete is alleging that the trial court improperly limited his questioning of a

       witness at the hearing on his first motion to suppress.


[16]   Streete frames his argument as an appeal of the trial court’s denial of his motion

       to suppress. However, because he appeals after a completed trial, the question

       of whether the trial court erred in denying his motion to suppress is no longer

       viable, and the only argument available to Streete now is whether the trial court

       erred in admitting the evidence at trial. Reinhart v. State, 930 N.E.2d 42, 45

       (Ind. Ct. App. 2010). The trial court’s ruling on the admission of evidence is

       reviewed for an abuse of discretion. Cherry v. State, 57 N.E.3d 867, 875 (Ind.

       Ct. App. 2016), trans. denied. An abuse of discretion occurs when a decision is

       clearly against the logic and effect of the facts and circumstances before the

       court. Paul v. State, 971 N.E.2d 172, 175 (Ind. Ct. App. 2012).


[17]   In his brief to this Court, Streete neither asserts nor explains how the trial

       court’s admission of the evidence is an abuse of its discretion. In addition to his

       muddled argument, Streete fails to identify with any particularity the evidence

       Court of Appeals of Indiana | Memorandum Decision 51A01-1706-CR-1458 | April 12, 2018   Page 7 of 16
       that he claims should have been suppressed. Indiana Appellate Rule 46(A)(8)

       requires the appellant to support each of his contentions with cogent reasoning.

       Streete has failed to present a cogent argument that the trial court erred in

       admitting the seized evidence; accordingly, appellate review of this claim is

       waived. See Sandleben, 29 N.E.3d at 136 (failure to present cogent argument on

       an issue waives that issue for appellate review).


                                            III. Search Warrant
[18]   From Streete’s incoherent argument on this issue, we discern his contention to

       be that the first search warrant was too broad in scope if it is based only upon

       the one sale of methamphetamine to the CI in August 2014. Consequently, he

       claims, the evidence resulting from the first search of his house is inadmissible

       because there was insufficient probable cause to issue the warrant in violation of
                                                               3
       his rights under the Fourth Amendment.


[19]   The Fourth Amendment affords protection against warrants issuing without

       probable cause. Probable cause exists if, based on the totality of the

       circumstances, there is a fair probability that a particular place contains

       evidence of a crime. Membres v. State, 889 N.E.2d 265, 275 (Ind. 2008). When

       a defendant later challenges the issuance of a search warrant, the reviewing




       3
         We address only the first search warrant because Streete concedes his claim as to the second search warrant
       at the hearing on his second motion to suppress. See Tr. Vol. 3, p. 166. Additionally, because Streete does
       not argue that the search and seizure provision of the Indiana Constitution requires a different analysis than
       the Fourth Amendment, any state constitutional claim he may have had is waived, and we consider only the
       federal claim in this appeal. See Warren v. State, 760 N.E.2d 608, 610 n.3 (Ind. 2002).

       Court of Appeals of Indiana | Memorandum Decision 51A01-1706-CR-1458 | April 12, 2018             Page 8 of 16
       court, with significant deference to the issuing judge’s determination, must

       determine whether the issuing judge had a substantial basis for concluding that

       probable cause existed. Jaggers v. State, 687 N.E.2d 180, 181 (Ind. 1997). This

       task requires the reviewing court to focus on whether reasonable inferences

       drawn from the totality of the evidence support the finding of probable cause.

       Id. at 181-82. In making its decision, the reviewing court considers only the

       evidence presented to the issuing judge, not after-the-fact justifications for the

       search. Id. at 182. Search warrants are presumed valid, and the defendant has

       the burden to rebut this presumption. Speer v. State, 995 N.E.2d 1, 7 (Ind. Ct.

       App. 2013), trans. denied.


[20]   In light of these principles, we turn to the present case. The lengthy affidavit

       upon which the search warrant was based stated that law enforcement had

       received numerous reports from community members and Streete’s neighbors

       regarding Streete’s illegal activities. More particularly, the affidavit set forth in

       great detail the investigation of Streete, including his history, details of the

       controlled buy in August 2014 that occurred at Streete’s home, dates and

       content of intercepted telephone conversations between Streete and another

       target of the investigation, details concerning electronic surveillance and

       tracking of the additional target, and information obtained from a post-Miranda

       interview of the target in which he described his drug transactions with Streete

       and provided further information concerning Streete’s drug activities and hiding

       places on his property.




       Court of Appeals of Indiana | Memorandum Decision 51A01-1706-CR-1458 | April 12, 2018   Page 9 of 16
[21]   Thus, Streete is clearly mistaken that the warrant and its supporting affidavit

       were based solely on the single sale of methamphetamine to the CI. Streete has

       not overcome the warrant’s presumption of validity. The affidavit provided a

       substantial basis for the issuing judge to conclude that probable cause existed

       and that Streete’s residence and property contained evidence of a crime.


                                          IV. Jury Instruction
[22]   Next, Streete alleges the trial court erred by failing to give an instruction on a

       lesser included offense. However, prior to investigating the trial court’s course

       of action on this issue, we examine the propriety of the claimed error.


[23]   There are prerequisites a defendant must fulfill in order to properly preserve his

       claim of instructional error. Indiana Appellate Rule 46(A)(8)(e) provides:

       “When error is predicated on the giving or refusing of any instruction, the

       instruction shall be set out verbatim in the argument section of the brief with the

       verbatim objections, if any, made thereto.” We observe that this rule employs

       the mandatory “shall” rather than the permissive “may.” Failure to comply

       with this rule results in waiver of the issue on appeal. Richardson v. State, 697

       N.E.2d 462, 465 (Ind. 1998).


[24]   Streete did not set out in his brief the instruction he tendered to the trial court as

       required by Indiana Appellate Rule 46(A)(8)(e) or any objections made by the

       State. Consequently, he has waived any issue regarding the propriety of the

       trial court’s refusal to give the tendered instruction on the lesser included

       offense.

       Court of Appeals of Indiana | Memorandum Decision 51A01-1706-CR-1458 | April 12, 2018   Page 10 of 16
[25]   Even if Streete had properly preserved the issue for review, his argument still

       fails. When a defendant requests an instruction on a lesser included offense to

       the charged crime, a trial court applies a three-part test. Webb v. State, 963

       N.E.2d 1103, 1106 (Ind. 2012). First, the trial court must determine if the

       alleged lesser included offense is inherently included in the crime charged by

       comparing the statutes defining the two crimes. Id. Second, if the trial court

       determines that the alleged lesser included offense is not inherently included in

       the crime charged under step one, it must then determine if the alleged lesser

       included offense is factually included in the crime charged. Id. If the alleged

       lesser included offense is neither inherently nor factually included in the

       charged crime, the trial court should not give an instruction on the alleged lesser

       included offense. Id. Third, if the trial court determines that an alleged lesser

       included offense is either inherently or factually included in the charged crime,

       it must look at all the evidence to determine if there is a serious evidentiary

       dispute about the element or elements distinguishing the greater from the lesser

       offense, and if, in light of this dispute, a jury could conclude that the lesser

       offense was committed but not the greater. Id. It is reversible error for a trial

       court not to give an instruction, when requested, on the inherently or factually

       included lesser offense if such an evidentiary dispute exists. Id. When the

       decision to give or not give a lesser included offense depends upon whether

       there is a serious evidentiary dispute, and the trial court has made an express

       finding on the existence or lack of such a dispute, we review the trial court's

       decision to give or refuse a lesser included offense instruction for an abuse of

       discretion. True v. State, 954 N.E.2d 1105, 1108 (Ind. Ct. App. 2011).
       Court of Appeals of Indiana | Memorandum Decision 51A01-1706-CR-1458 | April 12, 2018   Page 11 of 16
[26]   Here, Streete was charged with Level 2 felony dealing in methamphetamine,

       which requires proof beyond a reasonable doubt that he knowingly possessed

       methamphetamine in an amount of at least ten grams with the intent to deliver.

       See Ind. Code § 35-48-4-1.1(a)(2)(A), (e)(1). Streete’s requested instruction was

       for a Level 4 felony possession of methamphetamine, which requires proof

       beyond a reasonable doubt that he knowingly possessed methamphetamine in

       an amount of at least ten but less than twenty-eight grams without a valid

       prescription or order of a practitioner acting in the course of his or her

       professional practice. See Ind. Code § 35-48-4-6.1(a), (c)(1) (2014). The

       material distinction between the two offenses is the intent to deliver. Thus, the

       question before us is whether the evidence at trial established a serious

       evidentiary dispute regarding Streete’s intent to deliver. Moreover, we observe

       that in refusing to give Streete’s tendered instruction, the trial court expressly

       stated, “there is no evidence at all included or put forth in the trial that Mr.

       Streete used methamphetamine. Uh, everything in this trial and all of the

       evidence that was put before the court indicates that other persons were

       involved and his confession discussed Mr. Killion. The, uh, recording was

       played and Mr. Killion is related to the [ ] intent to deliver for the [sale] of

       methamphetamine.” Tr. Vol. 5, pp. 55-56. This constitutes an express finding

       of a lack of a serious evidentiary dispute, and, thus, we review the trial court’s

       refusal to give Streete’s tendered instruction for an abuse of discretion.


[27]   The evidence at trial firmly establishes that Streete was dealing

       methamphetamine. This evidence included: James’s and Tiffany’s testimony


       Court of Appeals of Indiana | Memorandum Decision 51A01-1706-CR-1458 | April 12, 2018   Page 12 of 16
       of Streete’s sale of methamphetamine to the CI in August 2014; James’s

       testimony of his purchases of methamphetamine from Streete; and Streete’s

       discussion, in his recorded statement to police, of his extensive

       methamphetamine selling operation. The record lacks any evidence indicating

       Streete personally used methamphetamine. For his part, Streete does not cite to

       any trial evidence but instead lists four defense contentions regarding the

       evidence. In light of these facts and circumstances, we cannot conclude the trial

       court abused its discretion in refusing Streete’s tendered instruction. See Paul,

       971 N.E.2d at 175 (abuse of discretion occurs when decision is clearly against

       logic and effect of facts and circumstances before court).


                                     V. Inappropriate Sentence
[28]   Streete contends that his sentence is inappropriate. Indiana Appellate Rule 7(B)

       provides that we may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, we determine that the sentence is

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

       offender. Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014).

       Sentencing is primarily a discretionary function in which the trial court’s

       judgment should receive considerable deference. Stephenson v. State, 29 N.E.3d

       111, 122 (Ind. 2015). Such deference should prevail unless overcome by

       compelling evidence portraying in a positive light the nature of the offense (such

       as accompanied by restraint and lack of brutality) and the defendant’s character

       (such as substantial virtuous traits or persistent examples of good character). Id.



       Court of Appeals of Indiana | Memorandum Decision 51A01-1706-CR-1458 | April 12, 2018   Page 13 of 16
       The defendant bears the burden of persuading the appellate court that his or her

       sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[29]   To assess whether the sentence is inappropriate, we look first to the statutory

       range established for the class of each offense. Here, Streete was convicted of

       two Level 2 felonies, a Level 5 felony, and a Level 6 felony. The advisory

       sentence for a Level 2 felony is seventeen and one-half years, with a minimum

       sentence of ten years and a maximum sentence of thirty years. Ind. Code § 35-

       50-2-4.5 (2014). The advisory sentence for a Level 5 felony is three years, with

       a minimum sentence of one year and a maximum of six years. Ind. Code § 35-

       50-2-6 (2014). Finally, the advisory sentence for a Level 6 felony is one year,

       with a minimum sentence of six months and a maximum sentence of two and

       one-half years. Ind. Code § 35-50-2-7 (2014). Streete was sentenced to the

       advisory sentence on both Level 2 felonies, and the sentences were to run

       concurrently. For the Level 5 felony, Streete received the advisory sentence of

       three years, to be served consecutively to his sentences on the Level 2 felonies,

       and he received a two-year sentence on the Level 6 felony, to be served

       concurrently with the sentences for the Level 2 felonies and consecutively to the

       sentence for the Level 5 felony. In addition, as a result of Streete’s admission to

       being an habitual offender, the court enhanced the sentence for one of his Level

       2 felony convictions by twenty years. Therefore, Streete received the advisory

       sentence on every conviction, except the Level 6 felony for which he received a

       mere one year above the advisory.




       Court of Appeals of Indiana | Memorandum Decision 51A01-1706-CR-1458 | April 12, 2018   Page 14 of 16
[30]   Next, we look to the nature of the offense and the character of the offender. As

       to the nature of the current offenses, we observe that Streete had been a drug

       dealer for quite some time constituting a menace to his small community.


[31]   With regard to his character, we observe that his criminal escapades began in

       1971 as a juvenile and continued steadily with several drug convictions,

       including some in federal court for which he served time in federal prison. The

       significance of a criminal history in assessing a defendant’s character and an

       appropriate sentence varies based on the gravity, nature, proximity, and number

       of prior offenses in relation to the current offense. Bryant v. State, 841 N.E.2d

       1154, 1156 (Ind. 2006). The nature of Streete’s prior offenses and their

       similarity to the current offenses weigh heavily against his claim of an

       inappropriate sentence.


[32]   Streete suggests that this Court should conduct an independent review to assess

       the weight attributable to the circumstances he presented to the trial court in

       support of his argument for leniency. However, the relative weight given to

       aggravating and mitigating factors is not subject to review. Anglemyer v. State,

       868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007).


[33]   Streete has not carried his burden of persuading this Court that his sentence has

       met the inappropriateness standard of review. Accordingly, we do not find his

       sentence to be inappropriate in light of the nature of the offenses and his

       character.




       Court of Appeals of Indiana | Memorandum Decision 51A01-1706-CR-1458 | April 12, 2018   Page 15 of 16
                                                Conclusion
[34]   For the reasons stated, we conclude there was sufficient evidence supporting

       Streete’s convictions, any argument regarding the admission of evidence seized

       in the first search of Streete’s residence is waived, there was a substantial basis

       for the issuing judge to conclude that probable cause existed for the issuance of

       the first search warrant for Streete’s residence, the trial court did not abuse its

       discretion by refusing Streete’s tendered instruction, and Streete’s sentence is

       not inappropriate.


[35]   Affirmed.


       Baker, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 51A01-1706-CR-1458 | April 12, 2018   Page 16 of 16
