MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Feb 28 2018, 10:32 am
regarded as precedent or cited before any
                                                                              CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                      Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         Matthew B. Mackenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Darah Mariah Kammerer,                                   February 28, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         82A01-1708-CR-2015
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable David D. Kiely,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         82C01-1610-F2-5859



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-2015 | February 28, 2018          Page 1 of 12
[1]   Darah Kammerer appeals her convictions for Level 2 Felony Dealing in

      Methamphetamine,1 Level 6 Felony Possession of a Controlled Substance, 2 and

      Level 6 Felony Maintaining a Common Nuisance.3 She argues that the trial

      court erred by admitting her statements to police into evidence, that her

      sentence was inappropriate in light of the nature of the offenses and her

      character, and that the trial court’s sentencing order should be corrected.

      Finding no error, that the sentence was not inappropriate, and that the

      sentencing order was unclear, we affirm and remand with instructions to clarify

      the order as explained herein.


                                                     Facts
[2]   On October 3, 2016, Evansville police officers executed a search warrant at a

      residence owned by Matthew Elliott. After knocking and receiving no answer,

      the police forcibly entered the house and found Elliott, Kammerer, and another

      man and escorted them outside. During the search, officers found the

      following:


             • A pipe, scales, baggies, and a purse in the master bedroom, which was
               used primarily by Kammerer. Inside the purse, officers discovered a bag
               containing a substance used to cut methamphetamine and a document
               listing numbers and weights.




      1
          Ind. Code § 35-48-4-1.1.
      2
          I.C. § 35-48-4-7.
      3
          Ind. Code § 35-45-1-5.


      Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-2015 | February 28, 2018   Page 2 of 12
          • A bag in the washing machine containing 37.06 grams of
            methamphetamine and a cutting agent.
          • A makeup bag, a wooden box, and scales in the kitchen. Inside the bag,
            officers discovered several acetaminophen, oxycodone, and hydrocodone
            pills and a bag with .09 grams of methamphetamine. Inside the box,
            officers recovered another pipe with burnt residue.

[3]   At the time of the search, Elliott and Kammerer were dating and Elliott allowed

      Kammerer to stay at the house in exchange for methamphetamine. She kept

      her things in the master bedroom and the purse and makeup bag belonged to

      her. Kammerer supported herself by selling methamphetamine and buyers

      would come to the house “a few times a day.” Tr. Vol. IV p. 38. The bag with

      37.06 grams of methamphetamine and a cutting agent belonged to both

      Kammerer and Elliott, but Elliott testified that Kammerer kept it and used it

      more, and that he would normally ask her permission before taking anything

      from it. Id. at 36, 47.


[4]   During the search, police placed Kammerer in handcuffs and sat her in a lawn

      chair across from the house. Detective Robert Schmitt then orally advised

      Kammerer of the following:


              You have the right to remain silent. If you do say anything, what
              you say can be used against you in the court of law. You have
              the right to consult with a lawyer and have that lawyer present
              during any questioning. If you cannot afford a lawyer, one will
              be appointed for you if you so desire. If you choose to talk, you
              have the right to stop the interview at any time. Do you
              understand these rights I’ve read to you? With these rights in
              mind, do you wish to speak with me?



      Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-2015 | February 28, 2018   Page 3 of 12
      Tr. Vol. II p. 32. Kammerer responded that she understood her rights.


[5]   Later that same afternoon,4 Detective Joshua Patterson interviewed Kammerer,

      who was still sitting across from the house. They had the following exchange:


              Q:       . . . okay, have you been read any kind of Miranda rights
                       or anything?


              A:       Yes, I have.


              Q:       You have, do you understand those?


              A:       Yes.


              Q:       Okay, do you want me to, I’ll . . . go through them with
                       you again real quick. You have a right to remain silent.
                       Anything you say can be used in court. You have the right
                       to talk to an attorney and have them present with you
                       before any questioning if you wish, however; you can start
                       answering questions without a lawyer, and at any time you
                       can stop answering the questions for the purpose of
                       consulting a lawyer, okay. Do you understand that?


              A:       Yes, sir.




      4
       The record does not reveal the amount of time that passed between Detective Schmitt’s advisement and
      Detective Patterson’s advisement. It appears that Detective Patterson gave his advisement while the search
      was ongoing and the trial court concluded that the two advisements were “very close in time.” Tr. Vol. IV p.
      105.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-2015 | February 28, 2018        Page 4 of 12
              Q:       Are you okay to talk to me right now, do you agree to talk
                       to me right now? Like I said, you can stop at any time if
                       you want to, okay?


              A:       Okay.


      Id. at 14-15. After this exchange, Kammerer admitted to using

      methamphetamine but denied knowing about any “substantial amount” of

      drugs or who owned them. Tr. Vol. IV p. 108-11.


[6]   On October 5, 2016, the State charged Kammerer with one count of Level 2

      felony dealing in methamphetamine, two counts of Level 3 felony dealing in a

      narcotic drug, and one count of Level 6 felony maintaining a common

      nuisance. On January 19, 2017, the State dismissed one of the counts of

      dealing in a narcotic drug. On May 1, 2017, Kammerer filed a motion to

      suppress, among other things, her statements to Detective Patterson, which the

      trial court denied on June 9, 2017. Kammerer’s jury trial took place on June 21

      and 22, 2017. At trial, the State moved to introduce Kammerer’s statements to

      Detective Patterson into evidence and the trial court admitted the statements

      over Kammerer’s objections. On June 22, 2017, the jury found Kammerer

      guilty of Level 2 felony dealing in methamphetamine, Level 6 felony possession

      of a controlled substance, and Level 6 felony maintaining a common nuisance.


[7]   Following a July 27, 2017, sentencing hearing, the trial court sentenced

      Kammerer to concurrent terms of twenty years imprisonment for Level 2 felony

      dealing in methamphetamine and eighteen months for each of the remaining


      Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-2015 | February 28, 2018   Page 5 of 12
      charges, for an aggregate twenty-year term. The trial court also ordered that the

      sentence be served consecutively to another sentence in an unrelated cause.

      Kammerer now appeals.


                                   Discussion and Decision
                         I. Statements to Detective Patterson
[8]   First, Kammerer contends that the trial court erred by admitting her statements

      to Detective Patterson into evidence because they were made in violation of her

      constitutional rights. The decision to admit or exclude evidence lies within the

      discretion of the trial court and we will only reverse if its decision was clearly

      against the logic and effect of the facts and circumstances before it or if the

      court has misinterpreted the law. Carpenter v. State, 786 N.E.2d 696, 702-03

      (Ind. 2003).


[9]   Miranda warnings are used to secure a defendant’s constitutional right against

      self-incrimination. Palilonis v. State, 970 N.E.2d 713, 732 (Ind. Ct. App. 2012);

      see also Miranda v. Arizona, 384 U.S. 436, 461 (1966). If the State claims that a

      defendant waived this right, the State bears the burden to prove beyond a

      reasonable doubt that the waiver was voluntary, knowing, and intelligent. State

      v. Keller, 845 N.E.2d 154, 161 (Ind. Ct. App. 2006). Among other things, the

      State must establish that the defendant was adequately advised of his rights and

      that he understood those rights prior to waiving them. Id. That advisement

      must inform a defendant that:



      Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-2015 | February 28, 2018   Page 6 of 12
                he has the right to remain silent, that anything he says can be
                used against him in a court of law, that he has the right to the
                presence of an attorney, and that if he cannot afford an attorney
                one will be appointed for him prior to any questioning if he so
                desires.


       Miranda, 384 U.S. at 479. On appeal, this Court examines the advisement in

       light of the totality of the circumstances. State v. Banks, 2 N.E.3d 71, 78 (Ind.

       Ct. App. 2014).


[10]   Detective Schmitt’s advisement was proper, but she counters that Detective

       Patterson’s advisement was deficient and misled her about her rights, rendering

       the first advisement “stale.” Appellant’s Br. p. 20 (citing United States v. Pruden,

       398 F.3d 241, 246-47 (3rd Cir. 2005)). The record indicates that Detective

       Patterson advised Kammerer that: (1) she had the right to remain silent, (2)

       anything she said could be used against her in court, (3) she had the right to

       speak to an attorney, and (4) she had a right to have an attorney present before

       any questioning. Detective Patterson did not, however, expressly advise her

       that, if she could not afford an attorney, one would be appointed for her prior to

       any questioning and that she had the right to the presence of an attorney during

       questioning.5 While Detective Patterson’s advisement was incomplete, under

       the totality of the circumstances, these omissions are not fatal.




       5
         Kammerer also claims that Detective Patterson mischaracterized her right to stop answering questions at
       any time because he initially stated that she could stop answering at any time for the purpose of consulting a
       lawyer. However, she ignores the fact that, after confirming that she understood her rights and asking if she
       wanted to talk, he stated, “Like I said, you can stop at any time if you want to, okay?” Tr. Vol. II p. 14-15.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-2015 | February 28, 2018           Page 7 of 12
[11]   Our Supreme Court has held that a Miranda advisement


               need not be repeated if the circumstances surrounding the
               interruption or adjournment of the process have not deprived the
               suspect of the opportunity to make an informed and intelligent
               assessment of his interests involved in the interrogation. The
               rationale is that if the interruption is part of a continual effort by
               the police to gather information from the suspect, there can be
               little doubt as to the suspect’s interests in the matter.


       Shane v. State, 615 N.E.2d 425, 427 (Ind. 1993) (internal citations omitted).


[12]   Kammerer confirmed that she understood her rights after speaking with

       Detective Schmitt and prior to speaking with Detective Patterson. While the

       precise length of time between the two advisements is unknown, both

       advisements occurred in the same afternoon while police were searching the

       house and Kammerer was sitting handcuffed across from the house. Because

       the interruption between the advisements was part of a continual effort by

       police to gather information, Kammerer was not deprived “of an opportunity to

       make an informed and intelligent assessment of [her] interests,” and Detective

       Patterson did not need to readvise her of her rights. Ogle v. State, 698 N.E.2d

       1146, 1149 (Ind. 1998); see also Owens v. State, 431 N.E.2d 108, 110-11 (Ind.

       1982) (holding that defendant did not need to be readvised of his Miranda rights

       where he was fully advised and waived his rights twice days before and where,

       prior to the interrogation, he was given a “general reminder” of those rights and

       he confirmed that he was still aware of them).




       Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-2015 | February 28, 2018   Page 8 of 12
[13]   Moreover, a second, limited advisement does not necessarily undermine an

       initial, proper advisement. See, e.g., Grey v. State, 273 Ind. 439, 444-45, 404

       N.E.2d 1348, 1351-52 (1980) (holding that, despite evidence that subsequent

       advisement was incomplete, evidence of prior complete warnings and

       affirmations that defendant understood is sufficient to support a conclusion that

       defendant was adequately advised of rights); Brown v. State, 271 Ind. 129, 132,

       390 N.E.2d 1000, 1003 (1979) (holding that where the defendant received a full

       Miranda warning in Kansas, appeared to understand it, and then received an

       incomplete advisement of his rights en route to Indiana, the trial court could

       infer a waiver of his Miranda rights). Under these circumstances, we find that

       Kammerer was adequately advised of her rights. Therefore, the trial court did

       not err by admitting her statements to Detective Patterson into evidence.


                                        II. Appropriateness
[14]   Next, Kammerer contends that the length of the sentence imposed by the trial

       court is inappropriate in light of the nature of the offenses and her character

       pursuant to Indiana Appellate Rule 7(B). We must “conduct [this] review with

       substantial deference and give ‘due consideration’ to the trial court’s decision—

       since the ‘principal role of [our] review is to attempt to leaven the outliers,’ and

       not to achieve a perceived ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d

       1274, 1292 (Ind. 2014) (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind.

       2013)) (internal citations omitted).




       Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-2015 | February 28, 2018   Page 9 of 12
[15]   Kammerer was sentenced on three convictions. She was convicted of a Level 2

       felony, for which she faced a sentence of ten to thirty years, with an advisory

       term of seventeen and one-half years. Ind. Code § 35-50-2-4.5. She received a

       twenty-year term to be served concurrently with the other offenses. She was

       also convicted of two Level 6 felonies, for each of which she faced a sentence of

       six months to two and one-half years, with an advisory term of one year. I.C. §

       35-50-2-7(b). She received an eighteen-month sentence on each count with both

       to be served concurrently to each other and the other offense. Thus, the trial

       court imposed an aggregate term of twenty years. Had the trial court imposed

       maximum, fully consecutive terms on all counts, she would have received an

       aggregate term of thirty-five years.


[16]   With respect to the nature of the offenses, Kammerer supported herself by

       selling methamphetamine out of her boyfriend’s house. The police discovered

       scales, baggies, pills, and a bag with 37.06 grams of methamphetamine and a

       cutting agent in the house. While Kammerer repeatedly characterizes her

       crimes as a small, unsophisticated operation meant only to support her own

       addiction, Elliott testified that multiple people came over several times a day to

       buy methamphetamine and that, on at least one occasion, he witnessed

       Kammerer sell an ounce of methamphetamine. Further, the amount of

       methamphetamine involved was considerable—enough to last a typical user

       five weeks, see tr. vol. IV p. 95 (Detective Patterson testifying that a typical

       methamphetamine user takes one gram a day), and over three times the amount




       Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-2015 | February 28, 2018   Page 10 of 12
       required to raise an offense to a Level 2 felony, absent an enhancing

       circumstance, see I.C. § 35-48-4-1.1(e).


[17]   With respect to Kammerer’s character, she attributes her crimes to addiction

       and insists that her history demonstrates that she is not dangerous. However,

       the amount of drugs she had, coupled with Elliott’s testimony, indicates that

       she was selling more than what she needed to feed her addiction. She also has

       a considerable criminal history, spanning two states, including felony

       convictions for possession of cocaine, and numerous misdemeanor convictions

       for prostitution, theft by deception, and visiting a common nuisance. Further,

       while out on bond for the present offenses, she was arrested again and pleaded

       guilty to Level 4 felony possession of methamphetamine. While we

       acknowledge that she expressed remorse in a letter to the trial court and that her

       criminal history has a thirteen-year gap that she claims is a result of her

       sobriety, her presentence report indicates that the first time she used

       methamphetamine was in 2015 and she has not explained why she began using

       a new drug after maintaining sobriety for more than a decade.


[18]   In short, we do not find the sentence imposed by the trial court inappropriate in

       light of the nature of the offenses or Kammerer’s character.


                                   III. Sentence Clarification
[19]   Finally, Kammerer argues that the written sentencing order does not clearly

       reflect the trial court’s intent as expressed in the court’s oral sentencing

       statement. “When oral and written sentencing statements conflict, we examine

       Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-2015 | February 28, 2018   Page 11 of 12
       them together to discern the intent of the sentencing court. We may remand

       the case for correction of clerical errors if the trial court’s intent is

       unambiguous.” Walker v. State, 932 N.E.2d 733, 738 (Ind. Ct. App. 2010)

       (internal citation omitted).


[20]   In an oral statement, the trial court clearly stated that the charges were to be

       served concurrently to each other and consecutively to Kammerer’s sentence in

       another cause. Tr. Vol. II p. 61. However, in its written order, the trial court

       checked both the “concurrently” and “consecutively” boxes next to each charge

       and the description boxes merely list the numbered counts and the other cause

       number. It is apparent the trial court was trying to order that the sentences

       would run concurrently to one another and consecutively to the sentence in the

       unrelated cause, but given the potential for misunderstanding, we remand so

       that the order can be clarified.


[21]   The judgment of the trial court is affirmed and remanded with instructions to

       amend the sentencing order to show that Kammerer’s sentences in the present

       case are to run concurrently with each other and consecutively to her sentence

       in the other cause.


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-2015 | February 28, 2018   Page 12 of 12
