Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                        FILED
any court except for the purpose of                       May 10 2012, 8:40 am
establishing the defense of res judicata,
collateral estoppel, or the law of the                           CLERK
                                                               of the supreme court,
case.                                                          court of appeals and
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ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

GILDA W. CAVINESS                               GREGORY F. ZOELLER
Caviness Law Office, LLC                        Attorney General of Indiana
Rushville, Indiana

                                                ERIC P. BABBS
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA


GARY W. FERGUSON,                               )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 73A05-1108-CR-434
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE SHELBY SUPERIOR COURT
                          The Honorable Jack A. Tandy, Judge
                            Cause No. 73D01-1011-FA-12


                                       May 10, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

        Gary Ferguson appeals his conviction for Class A felony dealing in a narcotic

drug.   We affirm.

                                          Issues

        Ferguson raises two issues, which we restate as:

              I.     whether the evidence is sufficient to sustain his
                     conviction; and

              II.    whether his sentence is inappropriate in light of the
                     nature of the offense and the character of the offender.

                                           Facts

        In September 2009, Ferguson owned and operated a barbershop in Shelbyville.

Ferguson’s brother-in-law, Darren Childers, had previously been a confidential

informant. Ferguson asked Childers if he “knew anybody that wanted to buy any” drugs

because “[h]e knew where to get some.” Tr. p. 181.         Childers was upset because his

friend had died of a drug overdose and called Detective Mike Polston of the Shelbyville

Police Department regarding Ferguson. Childers agreed to participate in a controlled buy

from Ferguson.

        On the morning of September 18, 2009, Ferguson called Mark Adkins and

“wanted to know if [he] wanted to get rid of some pills,” meaning Oxycodone. Id. at

273. Adkins responded that he did. Ferguson picked Adkins up and took him to the

barbershop.

        On that same day, Detective Polston searched Childers, outfitted him with a

recording device, and gave him money to buy Oxycodone. However, Detective Polston

                                             2
forgot to turn the recording device on.          Detective Darren Chandler set up video

surveillance of the barbershop and videotaped Childers entering and leaving the shop.

       Ferguson and Adkins were at the shop when Childers arrived. Childers asked if he

could still get “some of those Oxys,” and Ferguson asked Adkins, “Can we still get

them?” Id. at 184. Adkins responded, “Yes,” and Ferguson took a pill bottle from a shelf

behind a shampoo bottle and handed the bottle to Adkins. Adkins counted out ten pills,

gave them to Childers, opened the bottle again, removed one pill, and said “Here’s an

extra one for you.” Id. at 185. Ferguson took the bottle and put it back on the shelf.

       Childers talked to Adkins for a minute and then left. At some point, Ferguson

went outside with binoculars and looked around. Ferguson came back inside the shop

and told Adkins, “I think we’re had,” and “[W]e’re busted.” Id. at 302. Ferguson and

Adkins sold the Oxycodone to four people at the barbershop that day in addition to

Childers. They split the money earned from selling the pills.

       The State charged Ferguson with Class A felony dealing in a narcotic drug for

knowingly or intentionally delivering Oxycodone to another “within 1,000 feet of a

school property, a park, youth program center, and/or a family housing complex, and/or

he did aid, cause, or induce Mark Adkins to do the same.” Appellant’s App. p. 10. At

Ferguson’s jury trial, Childers, Adkins, and Ferguson testified. Ferguson claimed that

Childers and Adkins participated in the drug buy at his barbershop but that he was

unaware of what they were doing. The jury found Ferguson guilty as charged. The trial

court found the nature of the crime—the fact that a relatively small amount of drugs were

involved and the fact that Childers was his brother-in-law and a confidential informant—

                                             3
was a mitigator. The trial court noted that Ferguson had a criminal history and, although

it was not “terrible,” it was not a “positive” thing. Tr. p. 517. The trial court sentenced

Ferguson to twenty-five years in the Department of Correction.

                                         Analysis

                              I. Sufficiency of the Evidence

       Ferguson argues that the evidence is insufficient to sustain his conviction for Class

A felony dealing in a narcotic drug. When reviewing the sufficiency of the evidence

needed to support a criminal conviction, we neither reweigh evidence nor judge witness

credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the

evidence supporting the judgment and any reasonable inferences that can be drawn from

such evidence.” Id. We will affirm if there is substantial evidence of probative value

such that a reasonable trier of fact could have concluded the defendant was guilty beyond

a reasonable doubt. Id.

       The offense is governed by Indiana Code Section 35-48-4-1(a), which provides

that a person who knowingly or intentionally delivers a narcotic drug commits dealing in

a narcotic drug. The offense is a Class A felony if the drug is delivered within 1,000 feet

of a school property, public park, family housing complex, or youth program center. Ind.

Code § 35-48-4-1(b)(3).      Further, the State charged Ferguson, alternatively, as an

accomplice. See I.C. § 35-41-2-4 (“A person who knowingly or intentionally aids,

induces, or causes another person to commit an offense commits that offense . . . .”).

“Mere presence at the crime scene is insufficient proof to support a conviction, but

presence at the scene coupled with other circumstances tending to show participation in

                                             4
the crime may be sufficient to sustain a guilty verdict.” Rohr v. State, 866 N.E.2d 242,

248-49 (Ind. 2007).

       The State presented evidence that Ferguson asked Childers if he “knew anybody

that wanted to buy any” drugs because “[h]e knew where to get some.” Tr. p. 181.

Ferguson also called Adkins and “wanted to know if [he] wanted to get rid of some pills,”

meaning Oxycodone. Id. at 273. Adkins responded that he did, and Ferguson picked

Adkins up and took him to the barbershop. When Childers arrived, he asked if he could

still get “some of those Oxys,” and Ferguson asked Adkins, “Can we still get them?” Id.

at 184. Adkins responded, “Yes,” and Ferguson took a pill bottle from a shelf behind a

shampoo bottle and handed the bottle to Adkins. Adkins then gave the pills to Childers.

After Childers left, Ferguson went outside with binoculars and looked around. When he

came back inside the shop, he told Adkins, “I think we’re had,” and “[W]e’re busted.”

Tr. p. 302. That day, Ferguson and Adkins sold the Oxycodone to five people, and they

split the money earned from selling the pills.

       Ferguson argues that the evidence is insufficient because some of Childers and

Adkins’s testimony conflicted as to whether Adkins or Ferguson retrieved the bottle of

Oxycodone, Adkins was testifying to receive a lenient plea bargain, and Detective

Polston forgot to turn on the recording device. Ferguson’s argument is merely a request

that we reweigh the evidence and judge the credibility of the witnesses, which we cannot

do. The credibility of Adkins and Childers was for the jury to determine. Further,

although a recording of the buy clearly would have been helpful, the lack of a recording



                                             5
is not determinative of the sufficiency of the evidence. It was the jury’s duty to weigh the

evidence. The evidence is sufficient to sustain Ferguson’s conviction.

                                II. Inappropriate Sentence

       Ferguson argues that his twenty-five-year sentence is inappropriate in light of the

nature of the offense and the character of the offender. 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 find that the sentence is inappropriate in light of the nature

of the offense and the character of the offender. When considering whether a sentence is

inappropriate, we need not be “extremely” deferential to a trial court’s sentencing

decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). Still, we must

give due consideration to that decision. Id. We also understand and recognize the unique

perspective a trial court brings to its sentencing decisions. Id. Under this rule, the burden

is on the defendant to persuade the appellate court that his or her sentence is

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

       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). We “should focus on the forest—

the aggregate sentence—rather than the trees—consecutive or concurrent, number of

counts, or length of the sentence on any individual count.” Id. When reviewing the

appropriateness of a sentence under Rule 7(B), we may consider all aspects of the penal

consequences imposed by the trial court in sentencing the defendant, including whether a

                                             6
portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.

2010).

         According to Ferguson, the trial court should have imposed a lesser sentence, and

it should have suspended part of the sentence or ordered it served on community

corrections. We begin by noting that Ferguson was sentenced for a Class A felony, and

the statutory sentence for a Class A felony is between twenty and fifty years with an

advisory sentence of thirty years. I.C. § 35-50-2-4. Thus, Ferguson received five years

more than the minimum sentence.           We also note that the trial court did not have

discretion to suspend any part of Ferguson’s sentence below the twenty-year minimum

sentence because Ferguson’s offense was a Class A felony and he had a prior unrelated

felony conviction. I.C. § 35-50-2-2(b).

         The nature of the offense is that Ferguson and Adkins sold Oxycodone to

Ferguson’s brother-in-law, Childers. The trial court found the nature of the crime—the

fact that a relatively small amount of drugs were involved and the fact that Childers was

his brother-in-law and a confidential informant—was a mitigator. We acknowledge that

the nature of the offense is not egregious.

         As for the character of the offender, Ferguson was charged with Class A

misdemeanor battery in 1998, but that charge was resolved through pretrial diversion.

Ferguson has a 2002 conviction for Class A misdemeanor operating a vehicle while

intoxicated and 2007 convictions for Class D felony criminal recklessness and Class A

misdemeanor battery. The trial court noted that Ferguson had a criminal history and,

although it was not “terrible,” it was not a “positive” thing. Tr. p. 517. Ferguson

                                              7
contends that he had been married for nearly thirty years and that he had been employed

for most of his life.

       In sentencing Ferguson to five years above the minimum sentence and five years

below the advisory sentence, the trial court took the circumstances of the case and the

fact that Ferguson had a criminal history into consideration. We cannot say that the

twenty-five-year sentence imposed by the trial court is inappropriate in light of the nature

of the offense and the character of the offender.

                                        Conclusion

       The evidence is sufficient to sustain Ferguson’s conviction for Class A felony

dealing in a narcotic drug, and his sentence is not inappropriate in light of the nature of

the offense and the character of the offender. We affirm.

       Affirmed.

MAY, J., concurs.

FRIEDLANDER, J., dissent with separate opinion.




                                             8
                              IN THE
                    COURT OF APPEALS OF INDIANA


GARY W. FERGUSON                                  )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )       No. 73A05-1108-CR-434
                                                  )
STATE OF INDIANA                                  )
                                                  )
       Appellee-Plaintiff.                        )
                                                  )



FRIEDLANDER, Judge, dissenting

       I agree that the evidence was sufficient to sustain Ferguson’s conviction, but

respectfully dissent from the decision to affirm his twenty-five-year sentence. I will not

restate the facts of this occurrence, but merely register my observation that the Majority

understates the matter in describing the nature of Ferguson’s offense as “not egregious.”

Slip op. at 7. Among other things, I note the small quantity of drugs involved and the fact

that they were sold to Ferguson’s brother-in-law, who was working undercover at the

time. This suggests to me that Ferguson was not involved in an extensive, ongoing drug

enterprise, and does not pose a threat of doing so in the future.

       His brief criminal history is comprised of two misdemeanor offenses and a class D

felony. Although any criminal history at all is, as the trial court indicated, “not a positive


                                              9
thing,” Transcript at 517, neither should it be regarded as aggravating. Juxtaposed

against this, Ferguson has been married for nearly thirty years and has been gainfully

employed most of his life. On these facts, I believe anything in excess of the minimum

sentence is inappropriate.     I would revise the sentence downward and impose the

minimum, i.e., twenty years.




                                          10
