MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                               Jul 24 2015, 6:37 am
Memorandum Decision shall not be 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
Michael A. Casati                                         Gregory F. Zoeller
Casati Law, LLC                                           Attorney General of Indiana
Carmel, Indiana
                                                          Tyler G. Banks
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA

Walter L. Robertson,                                      July 24, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          29A02-1412-CR-851
        v.                                                Appeal from the Hamilton Superior
                                                          Court;
                                                          The Honorable Wayne A.
State of Indiana,                                         Sturtevant, Judge;
Appellee-Plaintiff.                                       29D05-1312-FD-10182




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A02-1412-CR-851 | July 24, 2015              Page 1 of 8
[1]   Walter L. Robertson appeals his conviction of Class D felony dealing in

      marijuana. 1 Robertson argues his waiver of a jury trial was invalid, the

      evidence was insufficient to support his conviction, and his 910-day sentence

      was inappropriate. We affirm.


                                     Facts and Procedural History
[2]   On December 6, 2013, Officers Silbaugh and Brooks stopped the gold Buick

      Robertson was driving after they saw it change lanes twice without a turn

      signal. Officer Silbaugh approached the vehicle on the driver’s side and Officer

      Brooks directed traffic.


[3]   On approaching the vehicle, Officer Silbaugh smelled a strong odor of burnt

      marijuana coming from the open window. He recognized the odor from his

      experience and more than 200 hours of “advanced officer training in the area of

      drug enforcement and drug and criminal interdictions.” (Tr. at 23.) Officer

      Silbaugh asked Robertson if there was any marijuana in the car. Robertson

      acknowledged there was and directed the officer’s attention to a partially

      burned marijuana cigarette in the ashtray. Officer Silbaugh removed both

      Robertson and his passenger from the car, and proceeded to search it. He

      found a clear plastic bag under the driver’s seat that contained two other plastic

      bags, each of which contained marijuana. He found $640.00 in cash in

      Robertson’s pocket. The money was folded up into a “bindle” held together by




      1
          Ind. Code 35-48-4-10 (2013).


      Court of Appeals of Indiana | Memorandum Decision 29A02-1412-CR-851 | July 24, 2015   Page 2 of 8
      rubber bands. (Id. at 39.) Police transported Robertson to the Fishers Police

      Department for interrogation.


[4]   During the interrogation, Robertson claimed the marijuana was for personal

      use and was packaged separately because they were different strains of

      marijuana. The Indiana State Police Laboratory tested the material in the bag

      and identified it as 30.96 grams of marijuana. Robertson also claimed he had

      so much cash because, prior to the arrest, he had cashed his $174.45 paycheck.

      Robertson also claimed he had received $50.16 in cash at Walmart for returned

      merchandise.


[5]   The State charged Robertson with Class D felony dealing in marijuana and

      Class D felony possession of more than thirty grams of marijuana. 2 Robertson

      did not appear at his pre-trial conference and he was arrested. Robertson filed

      two motions for bond reduction, which the court denied. Through counsel,

      Robertson waived his right to jury trial. The trial court instructed Robertson’s

      counsel to memorialize the waiver in writing and have it signed by both

      Robertson and the State.


[6]   Following a bench trial, the court found Robertson guilty as charged. At

      sentencing, the court merged the two counts into a single conviction of dealing

      in marijuana and sentenced Robertson to 910 days.




      2
          Ind. Code § 35-48-4-11 (2013).


      Court of Appeals of Indiana | Memorandum Decision 29A02-1412-CR-851 | July 24, 2015   Page 3 of 8
                                     Discussion and Decision
                                            Waiver of Jury Trial

[7]   Criminal defendants have a right to a jury trial on their charges. U.S. Const.

      amend. VI; Ind. Const. art. I, § 13 (1851). It is presumed felony defendants will

      exercise that right unless they choose to waive it. Pryor v. State, 975 N.E.2d 838,

      842 (Ind. Ct. App. 2011). A defendant’s waiver must be knowingly,

      voluntarily, and intelligently made. Duncan v. State, 975 N.E.2d 838, 842 (Ind.

      Ct. App. 2012). Once a defendant has effectively waived his right to a jury trial,

      he has no constitutional right to withdraw his waiver. Davidson v. State, 249

      Ind. 419, 425 (Ind. 1968).


[8]   Robertson argues he did not knowingly, voluntarily and intelligently waive his

      right to a jury trial. However, at his bond reduction hearing, Robertson,

      through counsel, made a request to waive his right to a jury trial. Robertson’s

      counsel stated he and Robertson had discussed the issue, and Robertson

      affirmed orally that he wished to waive his right to jury trial. The trial court

      instructed Robertson’s counsel to memorialize the waiver in writing and have it

      signed by both Robertson and the State. Robertson and his counsel signed a

      waiver that indicated Robertson waived his right to a jury trial, and they filed

      that waiver with the court. We hold Robertson knowingly, voluntarily, and

      intelligently waived his right to a jury trial. See Johnson v. State, 6 N.E.3d 491,

      497 (Ind. Ct. App. 2014) (finding waiver of jury trial valid when Johnson’s

      attorney signed a waiver indicating that Johnson acted on the advice and

      information of counsel when filing his waiver).

      Court of Appeals of Indiana | Memorandum Decision 29A02-1412-CR-851 | July 24, 2015   Page 4 of 8
                                            Sufficiency of Evidence

[9]    When reviewing the sufficiency of the evidence to support a conviction, we

       consider only the probative evidence and reasonable inferences supporting the

       trial court’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the

       fact-finder’s role, and not ours, to assess witness credibility and weigh the

       evidence to determine whether it is sufficient to support a conviction. Id. To

       preserve this structure, when we are confronted with conflicting evidence, we

       consider it most favorably to the trial court’s ruling. Id. We affirm a conviction

       unless no reasonable fact-finder could find the elements of the crime proven

       beyond a reasonable doubt. Id. It is therefore not necessary that the evidence

       overcome every reasonable hypothesis of innocence; rather, the evidence is

       sufficient if an inference reasonably may be drawn from it to support the trial

       court’s decision. Id. at 147.


[10]   To convict Robertson of Class D felony dealing in marijuana, the State had to

       prove Robertson “possesse[d], with intent to manufacture, finance the

       manufacture, deliver, or finance the delivery of marijuana.” Ind. Code § 35-48-

       4-10 (2013). Robertson argues the State did not prove he had “intent to . . .

       deliver” marijuana.


[11]   Intent to deliver can be inferred from circumstantial evidence such as

       “possession of a large quantity of drugs, large amounts of currency, scales,

       plastic bags, and other paraphernalia.” Ladd v. State, 710 N.E.2d 188, 191 (Ind.

       Ct. App. 1999). An amount of marijuana that exceeds the amount reasonably


       Court of Appeals of Indiana | Memorandum Decision 29A02-1412-CR-851 | July 24, 2015   Page 5 of 8
       possessed for personal use can alone be sufficient to uphold a conviction of

       dealing. Kail v. State, 528 N.E.2d 799, 809 (Ind. Ct. App. 1988) (citing Montego

       v. State, 517 N.E.2d 74, 76 (Ind. 1987)).


[12]   Robertson possessed nearly thirty-one grams of marijuana, which was packaged

       in two different bags. He had $640.00 in cash folded up into a “bindle” held

       together by rubber bands. (Tr. at 39.) Even if Robertson had cashed a $174.45

       paycheck and returned a $50.16 item at Walmart, that accounts for only

       approximately one-third of the cash he was carrying. Officer Silbaugh, who has

       had more than 200 hours of “advanced officer training in the area of drug

       enforcement and drug and criminal interdictions,” (id. at 23), stated both the

       packaging for the marijuana and the binding of money with a rubber band were

       consistent with drug sales he had seen in his “hundreds of arrests relating to

       marijuana.” (Id. at 46.) There is sufficient evidence of Robertson’s intent to

       deliver to support his conviction of dealing. See Wilson v. State, 754 N.E.2d

       950, 957-58 (Ind. Ct. App. 2001) (possession of large amount of cash and drugs

       packaged for sale permits inference of dealing).


                                                    Sentencing

[13]   We may revise a sentence if it is inappropriate in light of the nature of the

       offense and the character of the offender. Williams v. State, 891 N.E.2d 621, 633

       (Ind. Ct. App. 2008) (citing Ind. Appellate Rule 7(B)). We consider not only

       the aggravators and mitigators found by the trial court, but also any other

       factors appearing in the record. Roney v. State, 872 N.E.2d 192, 206 (Ind. Ct.


       Court of Appeals of Indiana | Memorandum Decision 29A02-1412-CR-851 | July 24, 2015   Page 6 of 8
       App. 2007), trans. denied. The appellant bears the burden of demonstrating his

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


[14]   When considering the nature of the offense, the advisory sentence is the starting

       point to determine the appropriateness of a sentence. Anglemyer v. State, 868

       N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). The

       sentencing range for Robertson’s offense was six months to three years, with the

       advisory sentence being one and one half years. Ind. Code § 35-50-2-7 (2013).

       The court imposed a sentence of 910 days, or nearly two-and-a-half years.


[15]   Robertson possessed 30.96 grams of marijuana, an amount that made

       Robertson’s possession a felony rather than a misdemeanor. See Ind. Code §

       35-48-4-10 (2013). He possessed that marijuana in two baggies in his car, which

       smelled of burnt marijuana, “as [if] someone had recently smoked a marijuana

       cigarette.” (Tr. at 27.) Robertson acknowledged there was marijuana in the car

       and directed the officer’s attention to a partially burned marijuana cigarette in

       the ashtray.


[16]   When considering the character of the offender, one relevant fact is the

       defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.

       App. 2007). The significance of a criminal history in assessing a defendant’s

       character varies based on the gravity, nature, and number of prior offenses in

       relation to the current offense. Id. Robertson has a history of juvenile

       adjudications for acts that if committed by an adult would be conversion,

       residential entry and conspiracy to commit theft. He was sent to the Indiana


       Court of Appeals of Indiana | Memorandum Decision 29A02-1412-CR-851 | July 24, 2015   Page 7 of 8
       Department of Correction following those adjudications. He was also

       convicted of dealing cocaine in 2002, for which he served time and he was on

       probation until 2007. Finally, Robertson was also “arrested for a new drug

       offense involving cocaine and marijuana and also a weapons charge while out

       on bond in this case.” (Tr. at 121.) Robertson’s continued criminal behavior

       despite prior punishment in the criminal justice system does not reflect well on

       his character.


[17]   Based on Robertson’s character, we cannot say his 910-day sentence is

       inappropriate.


                                                 Conclusion
[18]   Robertson knowingly, voluntarily and intelligently waived his right to a jury

       trial. There was sufficient evidence to support Robertson’s conviction of

       dealing in marijuana. Based on Robertson’s character, his 910-day sentence

       was not inappropriate. We accordingly affirm.


[19]   Affirmed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1412-CR-851 | July 24, 2015   Page 8 of 8
