Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                Jan 23 2015, 9:47 am
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:

DANIELLE L. GREGORY                             GREGORY F. ZOELLER
Indianapolis, Indiana                           Attorney General of Indiana

                                                KARL M. SCHARNBERG
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                               IN THE
                    COURT OF APPEALS OF INDIANA

HOWARD JACKSON,                                 )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 49A02-1406-CR-402
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Steven Eichholtz, Judge
                           Cause No. 49G20-1303-FA-17480


                                     January 23, 2015

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

      Appellant-Defendant, Howard Jackson (Jackson), appeals his conviction and

sentence for dealing in a narcotic drug, a Class A felony, Ind. Code § 35-48-4-

1(a)(2)(2013); and possession of marijuana, a Class A misdemeanor, I.C. § 35-48-4-11.

      We affirm.

                                        ISSUES

      Jackson raises two issues on appeal, which we restate as:

   (1) Whether the trial court abused its discretion by admitting into evidence an

      unsigned consent to search form and a photograph depicting the money discovered

      in Jackson’s motel room; and

   (2) Whether Jackson’s sentence is inappropriate.

                       FACTS AND PROCEDURAL HISTORY

      On March 14, 2014, Indianapolis Metropolitan Police Department Officers Jason

Rauch (Officer Rauch) and Matthew Thomas (Officer Thomas) visited the Days Inn

Motel to conduct a security check. During the check, the desk employee of the motel

reported suspicious activity in Jackson’s room.       Approaching Jackson’s room, the

officers detected a strong odor of burnt marijuana emanating from the room. When

Jackson opened the door, the officers detected an even more pungent marijuana smell

coming from the room. The officers requested to enter the room and Jackson, stepping

aside, responded “yes.”    (Transcript p. 30).   Upon entering the room, the officers

observed a pile of cash on the bed and a large amount of narcotics on a nearby desk.



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       The officers immediately handcuffed Jackson and read him his Miranda rights and

informed Jackson of his Pirtle rights, which were read from a consent to search form.

After the officers explained his rights, Jackson verbally consented to a search of his

room. Because he was handcuffed, Jackson was unable to sign the consent form and

Officer Rauch wrote on the signature line that Jackson was “in custody.” (Tr. p. 32).

The Officer also crossed out the part on the form indicating that the officer had witnessed

the signature and instead annotated that Jackson “verbally gave consent.” (Tr. p. 33).

       During the search, the officers located a total of 23.2035 grams of heroin, eight

pre-packaged bindles of heroin each containing approximately 0.125 grams, and 0.82

grams of marijuana. A small pile of heroin was found on the desk, as well as two digital

scales, a tube of aluminum foil, and an opened package of Mannite, which is an industrial

sweetener frequently used as a cutting agent for heroin. The officers discovered two

partially smoked marijuana joints and a baggie corner containing more heroin under the

mattress of the bed, as well as four black cell phones.

       Jackson told the officers that he had been living in the motel room for “some

months” and would make a weekly trip to Chicago to purchase 25 to 50 grams of heroin.

(Tr. p. 55). He admitted to re-packaging this heroin in the motel room and selling it at

the corner of 38th Street and Oxford in Indianapolis.

       On March 19, 2013, the State filed an Information, charging Jackson with Count I,

dealing in a narcotic drug, a Class A felony; Count II, possession of a narcotic drug, a

Class C felony; and Count III, possession of marijuana, a Class A misdemeanor. On May

14, 2014, the trial court conducted a bench trial. At the conclusion of the evidence, the


                                             3
trial court found Jackson guilty as charged. Because Count II merged into Count I due to

double jeopardy concerns, the trial court only entered judgment of conviction on Count I,

Class A felony dealing in a narcotic drug, and Count III, Class A misdemeanor

possession of marijuana. The trial court sentenced Jackson to thirty-five years on Count I

with ten years suspended and to a concurrent one-year executed sentence on Count III.

       Jackson now appeals. Additional facts will be provided as necessary.

                              DISCUSSION AND DECISION

                                  I. Admission of Evidence

       Jackson contends that the trial court abused its discretion by admitting into

evidence the unsigned consent to search the motel room and a photograph of the cash

seized during this search.     A trial court’s decision to admit or exclude evidence is

reviewed for an abuse of discretion. J.K. v. State, 8 N.E.3d 222, 228 (Ind. Ct. App.

2014). A trial court abuses its discretion when the decision is clearly against the logic

and effect of the facts and circumstances or when the trial court has misinterpreted the

law. Id. We will not reweigh the evidence, and we will consider conflicting evidence

most favorable to the trial court’s ruling. Id.

                              A. Unsigned Consent to Search

       During the bench trial, the State elicited testimony from Officer Rauch indicating

that after Jackson was given his Miranda rights and informed of his Pirtle rights, the

officers “procured a [c]onsent to [s]earch form and went over the [c]onsent to [s]earch

form with [Jackson] and asked that he would allow [the officers] consent to search the

hotel room.” (Tr. p. 31). Prior to admitting the consent to search form into evidence, it


                                              4
was clarified that Jackson verbally gave consent and did not sign the document. Jackson

objected to its admission on the ground that “it requires a signature to be valid.” (Tr. p.

33). The trial court admitted the form over Jackson’s objection because “it goes to the

weight more than the admissibility.” (Tr. p. 33). Jackson now asserts that the trial court

abused its discretion as the “consent form was not signed by [Jackson] and not relevant to

the proceedings because [Jackson] provided verbal consent for the search.” (Appellant’s

Br. p. 8).

       In Lyons v. State, 475 N.E.2d 719 (Ind. Ct. App. 1985), the officer testified that

Lyons had been read his rights prior to questioning but had refused to sign the waiver. At

trial, Lyons objected to the admission of the unsigned waiver of rights. Id. at 721. We

affirmed the trial court’s admission of the form over Lyons’ objection because “[a]s the

waiver of rights form merely tends to prove or disprove some material fact, it is

relevant.” Id. Likewise, here, because the unsigned document merely tended to prove

that Jackson had been informed of his Pirtle rights, it is relevant.

       Moreover, even if the trial court had abused its discretion in admitting the

unsigned consent to search, the error is harmless. Because Jackson never objected or

disputed the officer’s testimony that Jackson verbally consented to the search of his motel

room after being read his rights, the admission of the form is merely cumulative in nature

to the officer’s properly admitted testimony. See Cole v. State, 970 N.E.2d 779, 784 (Ind.

Ct. App. 2012) (an error in the admission of evidence does not justify reversal if the

evidence is cumulative of other evidence presented at trial).

                                          B. Cash


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       In a similar argument, Jackson contends that the trial court abused its discretion by

admitting—over Jackson’s objection—a photograph depicting the money seized by the

officers in the motel room because it was “not relevant to the proceedings” as there “was

no evidence the money was related to any criminal activity.” (Appellant’s Br. p. 8).

       Jackson was charged with dealing in a narcotic drug as a Class A felony.

Therefore, evidence establishing this charge is relevant if “(a) [the evidence] has any

tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.” Ind. Evidence R. 401.

       During the search of the motel room, the officers discovered 23.2035 grams of

heroin, eight pre-packaged bindles of heroin, two digital scales, four cell phones, and a

pile of cash, which amounted to $1,628.00. In Hazzard v. State, 642 N.E. 1368, 1370

(Ind. 1994), our supreme court noted that “[a] reasonable trier of fact could have

concluded beyond a reasonable doubt that an individual possessing a significant amount

of cocaine subdivided into small bags, a substantial sum of cash, and a gun, intended to

deliver the cocaine.” Reaching a similar conclusion here, we affirm the trial court’s

admission of the photograph depicting the cash found in Jackson’s motel room.

                                       II. Sentencing

       Lastly, Jackson disputes his sentence as not appropriate in light of the nature of the

offense and his character. This court “may revise a sentence authorized by statute, if

after due consideration of the trial court’s decision, the [c]ourt 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). The principal role of a Rule 7(B) review “should be to attempt to


                                             6
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.

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. 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 portion of the

sentence was suspended. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). The

burden is on the defendant to persuade the appellate court that his sentence is

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

       The trial court entered judgment of conviction on a Class A felony dealing in

narcotics and a Class A misdemeanor possession of marijuana. The sentencing range of a

Class A felony is fifty to twenty years, with the advisory sentence being thirty years. I.C.

§ 35-50-2-4(a). And the sentencing range of a Class A misdemeanor is “not more than

one (1) year” of imprisonment. I.C. § 35-50-3-2. Upon the evidence before it, the trial

court imposed thirty-five years executed on the Class A felony, with ten years suspended,

and a concurrent one-year executed sentence on the Class A misdemeanor.

       Considering the nature of the offense, we note that Jackson admitted to the officers

that he was trafficking twenty-five to fifty grams of heroin from Chicago to Indianapolis


                                             7
on a weekly basis. At the time of his arrest, he was in possession of a large amount of

heroin—eight to eleven times the statutory weight necessary to qualify as a Class A

felony—and a considerable stash of cash.

       Turning to his character, Jackson acknowledges that he has a criminal history and

was assessed into the high risk category to reoffend. In 1992, Jackson incurred a true

finding as a juvenile for possession of a controlled substance. As an adult, he was

convicted of possession of a controlled substance in Illinois, and after violating his

probation, served a four-year executed sentence. After his release in 1996, he was

arrested on three separate occasions for aggravated battery, disorderly conduct, and

syndicated   gambling.       Thereafter,   in   May    1998,   he   was    convicted   of

manufacturing/delivering a controlled substance and received a four-year sentence. He

was released again in November of 1999. Although he was arrested twice in 2011 and

2012 respectively, both prosecutions were dismissed due to evidentiary problems.

       While we agree with Jackson’s statement that he has not been convicted of a crime

in sixteen years, we also note that he has not been particularly law-abiding during that

period either. His criminal history clearly indicates that while his last conviction dates

from 1998, he has had several run-ins with the authorities since his release from

incarceration.   Furthermore, Jackson admitted that he was making weekly trips to

Chicago to obtain heroin for sale in Indianapolis. He acknowledged that he had been

staying in the Days Inn “for some months” and that he would re-package the drugs in his

room into bindles to sell on the street. (Tr. p. 55). Moreover, even though he claims that

he “was supporting four dependent children,” Jackson’s pre-sentence investigation


                                            8
indicates that none of his minor children lived with him, nor is he current on his child

support obligation.

       Accordingly, based on the evidence before us, we cannot say that Jackson’s

sentence is inappropriate in light of the nature of the offense and his character. As such,

the trial court did not abuse its discretion in sentencing him.

                                      CONCLUSION

       Based on the foregoing, we conclude that the trial court did not abuse its discretion

by admitting into evidence an unsigned consent to search form and a photograph

depicting the money discovered in Jackson’s motel room; and Jackson’s sentence is

appropriate in light of the offense and his character.

       Affirmed.

VAIDIK, C.J. and BAKER, J. concur




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