                                                                                    Oct 02 2013, 5:43 am


 Pursuant to Ind.Appellate Rule 65(D),
 this 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:

KAREN M. HEARD                                        GREGORY F. ZOELLER
Vanderburgh County Public Defender’s Office           Attorney General of Indiana
Evansville, Indiana
                                                      MICHAEL GENE WORDEN
                                                      Deputy Attorney General
                                                      Indianapolis, Indiana



                                IN THE
                      COURT OF APPEALS OF INDIANA

RASHEEN MIDDLETON,                                    )
                                                      )
       Appellant-Defendant,                           )
                                                      )
                vs.                                   )      No. 82A01-1301-CR-8
                                                      )
STATE OF INDIANA,                                     )
                                                      )
       Appellee-Plaintiff.                            )


                  APPEAL FROM THE VANDERBURGH CIRCUIT COURT
                         The Honorable Kelli E. Fink, Magistrate
                             Cause No. 82C01-1201-FA-28


                                           October 2, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
        Rasheen Middleton appeals from his conviction and sentence for one count of class B

felony Unlawful Possession of Firearm by Serious Violent Felon.1 Middleton presents

several issues for our review, which we restate as follows:

        1. Did the trial court err by denying Middleton’s motion for mistrial on the
           basis of an alleged Doyle 2 violation?

        2. Was the evidence of Middleton’s possession of a handgun sufficient to
           sustain his conviction?

        3. Was Middleton’s sentence inappropriate in light of the nature of the
           offense and the character of the offender?

        We affirm.

        The evidence most favorable to the jury’s verdict establishes that on January 4, 2012,

Cheryl Lemmons, Middleton’s good friend, was contacted by him to come to an apartment on

Lodge Avenue in Evansville. Middleton told Lemmons that he wanted to borrow some

money from her. Lemmons owned a .357 magnum handgun, which Middleton had

previously asked to buy from her. Lemmons had declined to sell that gun to Middleton, but

later contacted him to let him know about another gun that was available for purchase.

Lemmons took her handgun with her when she drove to meet with Middleton on January 4th.

When Lemmons arrived at the address, she did not see Middleton, but instead, went inside

the apartment and spoke with Middleton’s girlfriend. After nearly twenty minutes, Lemmons

left the apartment and drove home.




1Ind. Code Ann. § 35-47-4-5 (West, Westlaw current with all 2013 legislation).
2
 Doyle v. Ohio, 426 U.S. 610 (1976) (use of defendant’s post-Miranda silence for impeachment violates the
Due Process Clause of the Fourteenth Amendment).

                                                   2
       Later on that same day, several Evansville Police Department Detectives, who were

conducting an investigation, were led to investigate a residence located at 523 South Lodge

Avenue, Apartment B, in Evansville. Upon their arrival, the detectives met with the

homeowner, Ms. Glover, who gave the detectives her written consent to search the residence.

Once the detectives entered the premises, they observed Middleton and his girlfriend,

Christina Smith, lying on the living room sofa and covered with a blanket. In addition, Mr.

Johnson, Ms. Glover’s boyfriend, was present at the house.

       Initially, Middleton was lying flat on the sofa face down, while his girlfriend was

lying sideways. Middleton acted as though he had been sleeping and was startled by the

presence of the detectives, and continued to do so while the detectives explained to him why

they were at the house. Detective Paul Jacobs asked Middleton to remove his hands from

under the blanket for officer safety reasons. At first, Middleton complied, but a few minutes

later placed his hands under the blanket. Detective Jacobs once more asked Middleton to

remove his hands from under the blanket because he could not see what Middleton was doing

with his hands.

       Middleton’s girlfriend was removed from the sofa first, and Detective Mike Kennedy

took her to another room to question her. After Middleton was removed from the sofa,

Detective Jacobs searched the sofa, and under the cushions found a handgun and a cell

phone. The items were located between the cushions on the deck of the sofa. The detectives

seized those items after photographing the scene.




                                             3
       Detective Kennedy advised Middleton of his rights, which Middleton waived.

Middleton spoke with the detective, but refused to answer a question about who was

responsible for placing the gun under the sofa cushions. Middleton did tell the detective that

he had handled the gun the previous night when he found it in a truck belonging to someone

he considered to be his sister, Lemmons. As the detectives were removing Middleton from

the house, he asked them if he could have his cell phone, which was found under the sofa

cushions and next to the handgun.

       After Middleton was removed by the detectives from the house, Smith called

Lemmons and told her that Middleton had been arrested because he had a gun. Upon

receiving that information, Lemmons checked to find her gun and found that it was missing.

Police officers later contacted her about her gun, which was the gun that the detectives found

under the sofa cushions.

       Of the three counts with which the State charged Middleton, the State elected to

proceed to trial first with the count alleging the handgun offense. Middleton was convicted

of the handgun charge at the conclusion of his jury trial. The trial court sentenced Middleton

to twelve years of imprisonment, with two years suspended to probation. The trial court also

ordered that the sentence be served consecutively to any parole revocation period. Additional

facts will be supplied. Middleton now appeals.

                                              1.

       Middleton first claims that the trial court erred by denying his motion for mistrial on

the ground that Detective Kennedy had commented on Middleton’s right to remain silent.


                                              4
After the motion was made, the trial court held a hearing outside the presence of the jury.

The trial court ultimately found that Middleton had not remained silent after he was advised

of his rights. The trial court then admonished the jury to disregard the detective’s last

statement, because it was inaccurate. This, Middleton claims, was error.

       The standard of review with respect to the issue of a motion for a mistrial is well

settled and is as follows:

       Whether to grant or deny a motion for a mistrial is a decision left to the sound
       discretion of the trial court, as that court is in the best position to assess the
       circumstances of an error and its probable impact upon the jury. On appeal, we
       will reverse only upon an abuse of that discretion. To prevail on appeal from
       the denial of a motion for a mistrial, the appellant must demonstrate the
       statement or conduct in question was so prejudicial and inflammatory that he
       was placed in a position of grave peril to which he should not have been
       subjected. The gravity of the peril is assessed by the probable persuasive
       effect of the misconduct upon the jury’s decision rather than upon the degree
       of impropriety of the conduct. “A mistrial is an extreme remedy that is
       warranted only when less severe remedies will not satisfactorily correct the
       error.”

Stokes v. State, 922 N.E.2d 758, 762-63 (Ind. Ct. App. 2010) (quoting Warren v. State, 725

N.E.2d 828, 833 (Ind. 2000)), trans. denied.

       Middleton argues that his motion for mistrial should have been granted because

Detective Kennedy allegedly improperly commented on Middleton’s right to remain silent.

A violation occurs under the Due Process Clause of the Fourteenth Amendment to the United

States Constitution if the State uses a defendant’s silence for impeachment purposes where

the defendant was advised of his Miranda warnings upon his arrest. Doyle v. Ohio, 426 U.S.

610 (1976). We have used this principle in Indiana in cases where the State has used the

defendant’s post-Miranda silence as affirmative proof in its case. See Francis v. State, 758

                                               5
N.E.2d 528, 531-32 (Ind. 2001) (inappropriate to use defendant’s post-arrest, post-Miranda

warning silence as affirmative proof in State’s case).

       During Detective Kennedy’s testimony, the following exchange took place prior to the

motion for mistrial:

              Q:   And did you advise [Middleton] of his Miranda rights?
              A:   I did, yes.
              Q:   Did [Middleton] indicate that he understood his rights?
              A:   He did, absolutely.
              Q:   And did he waive those rights and agree to talk with you?
              A:   He did.
              Q:   What did you ask [Middleton] about?
              A:   I asked [Middleton] who’s[sic] gun it was and if the gun
                   belonged to him or if he had handled the gun recently.
            Q:     And what statements, if any, did he make to you?
            A:     Mr. Middleton told me that he had handled the gun the previous
                   night, he was cleaning out or going through a truck that
                   belonged to a female he claimed to be his sister, when he was
                   going through her vehicle he located the gun inside the vehicle,
                   got the gun out, handled the gun, and claimed that he, admitted
                   that his DNA or fingerprints, excuse me, his DNA may be on the
                   gun because he did handle it the previous night.
            Q:     Did you ask him anything else in regard to the gun?
            A:     I did, I asked him who put the gun underneath the couch
                   cushions.?
            Q:     And what was his response?
       A:   At that point he said he did not know and didn’t want to talk about it
       anymore.

Transcript at 54-55. Detective Kennedy then responded in the affirmative that he ceased his

questioning of Middleton after he refused to say anything more about the placement of the

gun. Middleton’s counsel then moved for a mistrial alleging the Doyle violation.

       The trial court did not err in denying the motion for mistrial on this basis. Here, there

was no commentary before the jury about Middleton’s right to remain silent. Detective


                                               6
Kennedy testified about Middleton’s response and that he ceased questioning Middleton

thereafter. Middleton was advised of his rights and waived those rights. He answered

Detective Kennedy’s questions during which he provided an exculpatory explanation for the

potential discovery of his DNA on the gun. In Sylvester v. State, 698 N.E.2d 1126, 1131

(Ind. 1998), for example, our Supreme Court held that “[w]here a defendant chooses to

fabricate a story, he has not remained silent and cannot claim a Doyle violation.”

       Additionally, the detective’s testimony was that after asking Middleton who had

placed the gun under the cushions, Middleton replied that he did not know and did not want

to discuss it any further. Middleton’s comment, again, was exculpatory. Where a defendant

claims that he knows nothing more about a crime, that statement does not amount to an

assertion of a right to remain silent such that it would support an alleged Doyle violation.

Wilson v. State, 688 N.E.2d 1293 (Ind. Ct. App. 1997). Middleton has failed to establish that

the trial court abused its discretion by denying the motion.

       We note that the audio recording of Detective Kennedy’s questioning of Middleton

includes passages that are difficult to comprehend. In some instances there are two people

speaking at the same time, and in other instances the recording is simply inaudible. During

the hearing on Middleton’s motion to suppress any statement that followed he statement that

he “didn’t want to talk about it anymore”, Middleton’s counsel argued that a transcript

prepared for the defense was a more accurate representation of the questioning than that

audio recording. That transcription was offered by the State for purposes of that suppression

hearing as State’s Exhibit 3A. The transcription provides that Middleton’s answer was “I


                                             7
don’t want to answer the question because it’s not my pistol and I don’t want (inaudible 7:50)

I’m being truthful . . . you know what I’m saying.” State’s Exhibit 3A at 2. Middleton then

continues to discuss the gun and the presence of his DNA on the gun. “An assertion of

Miranda rights must be clear and unequivocal, and in determining whether a person has

asserted his or her rights, the defendant’s statements are considered as a whole.” Clark v.

State, 808 N.E.2 d 1183, 1190 (Ind. 2004). Here there was no clear and unequivocal

assertion of Middleton’s right to remain silent.

       The trial court chose to admonish the jury about Detective Kennedy’s statement prior

to the motion for mistrial, finding the statement to be untrue. Again, we find the trial court

acted appropriately. “When the jury is admonished by the trial judge to disregard what has

occurred at trial or when other reasonable curative measures are taken, no reversible error in

denying a mistrial will normally be found.” Wagner v. State, 474 N.E.2d 476, 489 (Ind.

1985). Here, in paraphrasing his questioning of Middleton, Detective Kennedy stated that

when asked who placed the handgun under the cushion, Middleton replied that he did not

know, did not want to say anything more about it, and that the questioning ceased. The trial

court correctly found that this paraphrase was inaccurate. Indeed, using the transcription,

which Middleton argued was more accurate, when asked about the mechanics of the

handgun, Middleton stated that he did not want to answer the question because it was not his

gun. Middleton then continued to discuss the presence of his DNA on the handgun, and

answered many other questions about Middleton’s presence at the residence. Although there

are not particular words a defendant must utter in order to cease questioning, where a


                                              8
defendant indicates that he or she is tired of talking, or through with this, and continues to

answer questions without pausing or further indicating a wish to no longer respond, we have

found no assertion of a right to remain silent. Washington v. State, 808 N.E.2d 617 (Ind.

2004); Haviland v. State, 677 N.E.2d 509 (Ind. 1997). Consequently, the detective’s

paraphrase of the questioning was inaccurate, and the trial court correctly found that an

admonishment to the jury to disregard the inaccuracy was necessary. Since there was no

Doyle violation, the trial court correctly denied the motion for mistrial.

                                              2.

       Middleton next contends that the evidence of his possession of the handgun was

insufficient to support his conviction. Our standard of review of such matters is well settled

and is as follows:

       [w]hen reviewing the sufficiency of the evidence needed to support a criminal
       conviction, we neither reweigh evidence nor judge witness credibility. Henley
       v. State, 881 N.E.2d 639, 652 (Ind. 2008). “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.

Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009).

       In order to establish that Middleton had committed the offense, the State was required

to prove beyond a reasonable doubt in pertinent part that Middleton previously had been

convicted of committing a serious violent felony and later knowingly or intentionally

possessed a firearm. I.C. § 35-47-4-5(c). One of the statutorily enumerated offenses that

classifies a person as a “serious violent felon” is robbery. I.C. § 35-47-4-5(a) and (b).


                                              9
Middleton does not challenge the State’s presentation of evidence of his prior robbery

conviction. Instead, Middleton challenges the sufficiency of the State’s evidence that he

possessed the firearm found in the residence.

       A defendant’s possession of a firearm may be either actual or constructive. Causey v.

State, 808 N.E.2d 139 (Ind. Ct. App. 2004). The Causey opinion further explains the

analysis that should follow in determining either type of possession:

       However, constructive possession occurs when the person has the intent and
       capability to maintain dominion and control over the firearm. To prove the
       element of intent, the State must demonstrate the defendant’s knowledge of the
       presence of the firearm. Knowledge may be inferred from either exclusive
       dominion and control over the premises containing the firearm, or from
       evidence of additional circumstances indicating the defendant’s knowledge of
       the presence of the firearm.

       The following types of evidence are among those utilized by the State to show
       proof of the defendant’s dominion and control over a firearm: (1)
       incriminating statements by the defendant; (2) attempted flight or furtive
       gestures; (3) proximity of the firearm to the defendant; (4) location of the
       firearm within the defendant’s plain view; and (5) the mingling of a firearm
       with other items owned by the defendant. The State must also present
       evidence demonstrating the defendant’s capability to exercise control over the
       firearm, which includes the ability to reduce the firearm to his personal
       possession or to otherwise direct its disposition or use.

808 N.E.2d at 143.

       In the present case, sufficient evidence is present to establish Middleton’s actual and

constructive possession of the handgun, but we need analyze only the evidence of actual

possession. The firearm was found under the sofa cushion where Middleton had been lying.

It would have been difficult for Middleton not to have noticed the firearm. “We think it

would be difficult to sit on a handgun without knowledge of its presence and without the


                                             10
intent and ability to exercise dominion and control over the handgun.” Collins v. State, 822

N.E.2d 214, 222 (Ind. Ct. App. 2005). Similarly, we think it would be difficult for Middleton

to have lain on the sofa without knowledge of its presence and without the intent and ability

to exercise dominion and control over it. Additionally, Middleton admitted to Detective

Kennedy that he had taken the gun the night before from Lemmons’s truck and had handled

the gun. Given this admission of actual possession of the handgun, no further analysis is

required. See Williams v. State, 834 N.E.2d 225, 229 (Ind. Ct. App. 2005) (unnecessary to

analyze whether discovery of gun under mattress where only defendant slept established

possession where evidence of actual possession was present). There was sufficient evidence

of Middleton’s possession of the handgun.

                                              3.

       Middleton next challenges his sentence, contending that it is inappropriate in light of

the nature of the offense and the character of the offender. The trial court sentenced

Middleton to twelve years of imprisonment, with two years suspended to probation. The trial

court also ordered that the sentence be served consecutively to any parole revocation period.

The sentencing range for a class B felony conviction is a fixed term of imprisonment between

six and twenty years with the advisory sentence being ten years. Ind. Code Ann. § 35-50-2-5

(West, Westlaw current with all 2013 legislation).

       Appellate courts may revise a sentence after careful review of the trial court’s decision

if they conclude that the sentence is inappropriate based on the nature of the offense and the

character of the offender. Ind. Appellate Rule 7(B). Even if the trial court followed the


                                              11
appropriate procedure in arriving at its sentence, the appellate court still maintains a

constitutional power to revise a sentence it finds inappropriate. Hope v. State, 834 N.E.2d

713 (Ind. Ct. App. 2005). “We recognize, however, the special expertise of the trial courts in

making sentencing decisions; thus, we exercise with great restraint our responsibility to

review and revise sentences.” Scott v. State, 840 N.E.2d 376, 381 (Ind. Ct. App. 2006),

trans. denied. The defendant has the burden of persuading the appellate court that his

sentence is inappropriate. King v. State, 894 N.E.2d 265 (Ind. Ct. App. 2008).

       Whether we regard a sentence as appropriate “turns on our sense of the culpability of

the defendant, the severity of the crime, the damage done to others, and myriad other factors

that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

Furthermore, “[t]he principal role of appellate 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.” Id. at 1225. Accordingly, “the question under Appellate Rule 7(B) is not whether

another sentence is more appropriate; rather, the question is whether the sentence imposed is

inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in

original).

       We first note that the trial court imposed a sentence of twelve years imprisonment,

with two years suspended to probation. The executed portion of Middleton’s sentence is the

equivalent of the advisory sentence for a class B felony, ten years. I.C. § 35-50-2-5. That




                                              12
said, the complete sentence imposed totals twelve years, two years above the advisory

sentence for Middleton’s offense.

       As for the nature of the offense, we note that Middleton, a serious violent felon,

should not have been in possession of a firearm. He did so in a place where illegal drugs

were found and were being manufactured. Middleton was also charged with conspiring to

deal in methamphetamine and possession of methamphetamine at the time he was charged

with the present offense. The State elected to proceed on the charge at issue here first.

Middleton also stated at sentencing that he was unaware that methamphetamine was being

manufactured at the residence where he was located by the detectives. During sentencing,

Middleton admitted that he had been smoking methamphetamine with his girlfriend the entire

night prior to his arrest. Based upon the factors present, the possession of a firearm by a

serious violent felon who had consumed illegal drugs, at a location where methamphetamine

was being produced, we conclude that Middleton has failed to meet his burden of convincing

us that his sentence is inappropriate on the nature of the offense.

       As for Middleton’s character, we note that he is twenty-four years old. Middleton’s

substance abuse problem began when he was twelve years old and has escalated. Middleton

has little education, and a virtually non-existent employment history. Middleton’s use of

illegal drugs further demonstrates his disregard for leading a law-abiding life, and the

commission of offense, beyond those reflected by his actual criminal history. Again,

Middleton has failed to meet his burden of convincing us that his sentence is inappropriate.




                                             13
       The trial court’s decision to impose the twelve-year sentence with two years

suspended to probation is not inappropriate in light of the nature of the offense and the

character of the offender. See Lewis v. State, 949 N.E.2d 1243, 1247 (Ind. 2011) (twelve-

year sentence imposed on conviction for unlawful possession of a firearm by a serious violent

felon was not inappropriate).

       Judgment affirmed.

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




                                             14
