MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                                 FILED
Memorandum Decision shall not be                                       May 22 2020, 7:55 am

regarded as precedent or cited before any                                   CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Jared Michel Thomas                                      Tyler G. Banks
JMT Law, LLC d/b/a Thomas Law                            Supervising Deputy Attorney General
Evansville, Indiana                                      Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Mario Watkins,                                          May 22, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1846
        v.                                              Appeal from the Vanderburgh
                                                        Circuit Court
State of Indiana,                                       The Honorable David D. Kiely,
Appellee-Plaintiff.                                     Judge
                                                        The Honorable Kelli E. Fink,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        82C01-1901-F3-774



Friedlander, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1846 | May 22, 2020                    Page 1 of 13
[1]   Mario Watkins appeals his convictions and sentence for dealing in
                                                             1
      methamphetamine as a Level 3 felony and dealing in methamphetamine as a
                             2
      Level 2 felony. He raises the following two issues for our review:


                 1. Did the trial court err in denying his motion for severance of
                 his two drug-dealing charges?
                 2. Was his sentence inappropriate in light of the nature of his
                 offenses and his character?


      We affirm.


[2]   In March 2017, Detective Cliff Simpson was employed as a police officer with

      the Evansville Police Department. He had been a police officer for

      approximately twenty-five years and had served in a narcotics unit for twenty-

      one years. The last fifteen years, Detective Simpson had been assigned to a

      joint Drug Enforcement Administration (“DEA”) task force. For the past

      nineteen years, Detective Simpson worked with a certain confidential informant

      (hereinafter, “the CI”).


[3]   On March 8, 2017, the CI met with Detective Simpson and other task force

      officers in preparation for a controlled buy of methamphetamine from Watkins

      who was the CI’s supplier of the drug. Detective Simpson was the lead case

      agent in an investigation of Watkins. That morning, and in Detective




      1
          Ind. Code §§ 35-48-4-1.1(a)(1) and 35-48-4-1.1(d)(1) (2016).
      2
          Ind. Code §§ 35-48-4-1.1(a)(1) and 35-48-4-1.1(e)(1) (2016).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1846 | May 22, 2020   Page 2 of 13
      Simpson’s presence, the CI sent text messages to Watkins and arranged to buy a

      quarter of an ounce of methamphetamine from Watkins and to pay off an

      outstanding debt for a previous purchase of a quarter ounce of the same drug.

      The transactions were to take place later that afternoon at an apartment

      building located in Evansville, Indiana.


[4]   Around 4:00 p.m., the CI met with Detective Simpson and other task force

      officers in a parking lot behind the Evansville Police Department. The officers

      searched the CI’s person and vehicle to ensure that he was not already in

      possession of contraband or money. The officers then provided the CI with

      buy-money that had been supplied by the DEA—specifically, $300.00 to

      purchase the methamphetamine and an additional $300.00 to pay off the debt.

      The CI was given audio-visual recording equipment and a transmitting device

      to record the interaction with Watkins.


[5]   Detective Simpson and the other task force officers followed the CI as he drove

      to the apartment building and observed the CI enter the building and then exit

      the building a short time later. While inside, and out of the officers’ view, the

      CI exchanged the cash for methamphetamine and settled the debt. When the

      CI left the building, he returned to his vehicle and then drove back to the police

      department parking lot, with the officers following behind him. Upon arriving

      at the parking lot, the officers again searched the CI’s person and vehicle. The

      CI gave Detective Simpson the drugs he had purchased, which was later

      determined to be 6.4 grams of methamphetamine.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1846 | May 22, 2020   Page 3 of 13
[6]   One week later, on March 15, 2017, the CI exchanged text messages with

      Watkins and arranged a second controlled buy of methamphetamine. As with

      the previous buy, the CI met with Detective Simpson and other task force

      officers in the police department parking lot, and the officers searched the CI

      and provided him with recording equipment. This time, the officers provided

      the CI with $800.00 in buy-money to purchase twenty-two grams of

      methamphetamine from Watkins. Detective Simpson and the other task force

      officers followed the CI as he drove to the same apartment building to meet

      with Watkins. When the CI arrived, the officers again watched the CI enter the

      building and then exit a short time later. The CI reentered his vehicle and

      drove back to the police department parking lot, with the officers following

      behind him. Upon arriving at the parking lot, the CI was searched. The CI

      handed a plastic bag to Detective Simpson that contained the drugs he had

      purchased, what was later determined to be a little over twenty-one grams of

      methamphetamine. Although the CI had planned to purchase a larger amount

      of methamphetamine from Watkins that day, Watkins only had twenty-two

      grams available for sale.


[7]   Approximately two years later, on January 31, 2019, the State charged Watkins

      with one count of dealing in methamphetamine as a Level 3 felony and also

      filed a notice of intent to seek habitual offender status against Watkins. The

      State later added a charge of dealing in methamphetamine as a Level 2 felony.

      On June 5, 2019, five days before Watkins’ jury trial was to begin, Watkins

      filed a motion to sever the two dealing charges. A hearing on the motion was


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1846 | May 22, 2020   Page 4 of 13
      held, after which the trial court denied the motion. At trial, Watkins renewed

      his request for severance, which was denied by the trial court.


[8]   Watkins’ two-day jury trial began on June 10, 2019. At the conclusion of the

      trial, the jury found him guilty of both dealing charges. In the second phase of

      the trial, Watkins admitted to being an habitual offender.


[9]   Watkins’ sentencing hearing was held on July 8, 2019. At sentencing, the trial

      court found as follows regarding aggravating and mitigating circumstances:


              The Court notes that the IRA[S] indicates that the defendant’s a
              high risk to reoffend. The[] Court does not[e] also, that the
              defendant did plead guilty to the habitual offender enhancement
              phase. The defendant has a criminal history. The defendant’s
              criminal history includes, dealing in methamphetamine as a level
              3 felony in this case, as well as the dealing in methamphetamine
              as a level 2 felony in count 2, in this case. He has an invasion of
              privacy in 1801-F5-421, a domestic battery in 1711-F6-7277. [He
              has a] possession of controlled substance conviction in 1412-F2-
              53[3]7, [and] also in that cause, there was a possession of cocaine
              as a level 6 felony, a possession of controlled substance as an A
              misdemeanor and a maintaining a common nuisance conviction,
              . . . as a level 6 felony. He has a conviction for knowingly or
              intentionally operating a motor vehicle without receiving a
              license. He has a conviction in 1212-CM-5456, for possession of
              marijuana and a conviction for resisting law enforcement. He
              has a conviction in cause number 1106-CM-3274 for purchasing
              of more than 3.6 grams of precursors within more than 3 days.
              He has a conviction for burglary in [0]403-FA-200 as a Class B
              felony, where he was sentenced to the Indiana Department of
              Corrections for a period of eight years.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1846 | May 22, 2020   Page 5 of 13
       Tr. p. 144. The trial court sentenced Watkins to an aggregate term of thirty

       years executed in the Indiana Department of Correction (“DOC”)—

       specifically, twenty years for the Level 2 felony conviction and nine years for

       the Level 3 felony conviction, to be served concurrently, with the sentence for

       the Level 2 felony enhanced by ten years for the habitual offender finding.

       Watkins now appeals.


[10]   We first address Watkins’ claim that the trial court should have severed the

       dealing charges. Indiana Code section 35-34-1-9(a) (1981) is the basis for

       joining offenses and provides:


               Two (2) or more offenses may be joined in the same indictment
               or information, with each offense stated in a separate count,
               when the offenses:


                       (1) are of the same or similar character, even if not part of
                       a single scheme or plan; or


                       (2) are based on the same conduct or on a series of acts
                       connected together or constituting parts of a single scheme
                       or plan.


       Subsection 9(a)(1) refers to the nature of the charged offenses, and subsection

       9(a)(2) refers to the operative facts underlying those charges. Pierce v. State, 29

       N.E.3d 1258 (Ind. 2015).


[11]   Indiana Code section 35-34-1-11(a) (1981), however, provides that the

       defendant shall have the right to severance of the offenses “[w]henever two (2)

       or more offenses have been joined for trial in the same indictment or
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1846 | May 22, 2020    Page 6 of 13
       information solely on the ground that they are of the same or similar

       character[.]” Ind. Code § 35-34-1-11(a) (emphasis added).


               In all other cases the court, upon motion of the defendant or the
               prosecutor, shall grant a severance of offenses whenever the court
               determines that severance is appropriate to promote a fair
               determination of the defendant’s guilt or innocence of each
               offense considering:


                       (1) the number of offenses charged;


                       (2) the complexity of the evidence to be offered; and


                       (3) whether the trier of fact will be able to distinguish the
                       evidence and apply the law intelligently as to each offense.


       Id.


[12]   If offenses have been joined solely because they are of the same or similar

       character, a defendant is entitled to severance as a matter of right, and a trial

       court has no discretion to deny a severance motion. Pierce, 29 N.E.3d 1258.

       We review de novo arguments that a trial court improperly denied a motion to

       sever as a matter of right. Booker v. State, 790 N.E.2d 491 (Ind. Ct. App. 2003),

       trans. denied. Where offenses have been joined because the defendant’s

       underlying acts are connected together or constitute parts of a single scheme or

       plan, we review the trial court’s decision on severance for an abuse of

       discretion. Pierce, 29 N.E.3d 1258. We will reverse for an abuse of discretion

       “only upon a showing of clear error.” Ben-Yisrayl v. State, 690 N.E.2d 1141,

       1146 (Ind. 1997) (quoting Davidson v. State, 558 N.E.2d 1077, 1083 (Ind. 1990)).
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1846 | May 22, 2020   Page 7 of 13
[13]   Watkins argues that the two dealing charges were joined solely because they

       were of a similar character and that he was entitled to severance as a matter of

       right. We disagree.


[14]   A defendant is not entitled to severance as of right if multiple criminal acts fall

       under Indiana Code section 35-34-1-9(a)(2). If the operative facts establish a

       pattern of activity beyond mere satisfaction of the statutory elements, such as

       that multiple crimes have been committed with a common victim, modus

       operandi, and motive, a defendant is not entitled to severance of charges as of

       right. Pierce, 29 N.E.3d 1258. We acknowledge that the crimes committed by

       Watkins did not have a common victim. Nevertheless, we find the record

       establishes that Watkins was not entitled to severance of the charges as

       a matter of right because the charged offenses were “connected together or

       constitute[ed] parts of a single scheme or plan.” Ind. Code § 35-34-1-9(a)(2).


[15]   Here, the CI testified that Watkins was his “source” for methamphetamine. Tr.

       p. 97. The sales of the drugs occurred during the course of a police

       investigation, within a limited period of time (one week) in a limited

       geographical area (Evansville). The participants in both drug transactions were

       the same, and the transactions took place in the same apartment building. We

       therefore conclude that the evidence established a pattern of activity beyond the

       mere satisfaction of the statutory elements of the charges and that the two drug

       transactions were connected together by a common motive on the part of

       Watkins, that is, to deal methamphetamine. See, e.g., Sweet v. State, 439 N.E.2d

       1144, 1147 (Ind. 1982) (trial court’s denial of motion for severance affirmed

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1846 | May 22, 2020   Page 8 of 13
       where all eight charges against defendant arose from controlled buys

       “conducted during a period of approximately two months and involved many

       ongoing and continuous transactions with the same undercover police officers

       and the same informant”). As such, Watkins was not entitled to severance as a

       matter of right, and the denial of the motion was within the trial court’s

       discretion.


[16]   Furthermore, severance of the dealing charges was not necessary to promote a

       fair determination of Watkins’ guilt or innocence for each offense. See Ind.

       Code § 35-34-1-11(a). When reviewing the discretionary denial of a motion to

       sever, we must consider whether severance was required in order to promote a

       fair determination of the defendant’s guilt or innocence after reviewing

       subsections 1-3 of Indiana Code section 35-34-1-11(a). Ben-Yisrayl, 690 N.E.2d

       1141. In looking at the factors and applying them to the case before us, we note

       that there were only two offenses charged, and that neither the number of

       offenses charged nor the complexity of the evidence weigh in favor of

       severance. Also, the evidence presented in support of the charges was

       straightforward and inextricably intertwined. The only witnesses that testified

       for the State were members of the police task force who directly participated in

       the preparation and surveillance of the controlled buys, the DEA forensic

       chemist who analyzed the methamphetamine, and the CI. In light of the

       uncomplicated nature of the evidence, we do not believe there was a significant

       risk of juror confusion or any doubt that the jurors would be able to distinguish

       the evidence and apply the law intelligently to each offense. As such, we


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1846 | May 22, 2020   Page 9 of 13
       conclude the trial court did not abuse its discretion in denying Watkins’

       severance motion.


[17]   Next, Watkins argues his thirty-year sentence is inappropriate in light of the

       nature of his offenses and his character.


               We may review and revise criminal sentences pursuant to the
               authority derived from Article 7, Section 6 of the Indiana
               Constitution. Indiana Appellate Rule 7(B) empowers us to revise
               a sentence “if, after due consideration of the trial court’s decision,
               the Court finds that the sentence is inappropriate in light of the
               nature of the offense and the character of the offender.” Because
               a trial court’s judgment “should receive considerable
               deference[,]” our principal role is to “leaven the outliers.”
               Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008). “Such
               deference should prevail unless overcome by compelling
               evidence portraying in a positive light the nature of the offense
               (such as accompanied by restraint, regard, and lack of brutality)
               and the defendant’s character (such as substantial virtuous traits
               or persistent examples of good character).” Stephenson v. State, 29
               N.E.3d 111, 122 (Ind. 2015). The defendant bears the burden to
               persuade this court that his or her sentence is inappropriate,
               Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006), and we may
               look to any factors appearing in the record for such a
               determination. Stokes v. State, 947 N.E.2d 1033, 1038 (Ind. Ct.
               App. 2011), trans. denied.


       Reis v. State, 88 N.E.3d 1099, 1101-02 (Ind. Ct. App. 2017). The question under

       Appellate Rule 7(B) analysis is “not whether another sentence is more

       appropriate” but rather “whether the sentence imposed is inappropriate.” King

       v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Whether a sentence is

       inappropriate “turns on our sense of the culpability of the defendant, the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1846 | May 22, 2020   Page 10 of 13
       severity of the crime, the damage done to others, and myriad other factors that

       come to light in a given case.” Cardwell, 895 N.E.2d at 1224.


[18]   We begin with the advisory sentence in determining the appropriateness of a

       sentence. Childress, 848 N.E.2d 1073. Since the advisory sentence is the

       starting point our General Assembly has selected as an appropriate sentence for

       the crime committed, the defendant bears a particularly heavy burden in

       persuading us that his sentence is inappropriate when the trial court imposes

       the advisory sentence. Golden v. State, 862 N.E.2d 1212 (Ind. Ct. App.

       2007), trans. denied. The sentencing range for a Level 2 felony is “a fixed term

       of between ten (10) and thirty (30) years, with the advisory sentence being

       seventeen and one-half (17½) years.” Ind. Code § 35-50-2-4.5 (2014). The

       additional fixed term for an habitual offender finding for a Level 2 felony is

       between six and twenty years. Ind. Code § 35-50-2-8(i) (2015). A Level 3

       felony carries a sentencing range of three to sixteen years, with an advisory

       sentence of nine years. Ind. Code § 35-50-2-5(b) (2014). Watkins was

       sentenced to twenty years for the Level 2 felony—two and one-half years longer

       than the advisory sentence but ten years shorter than the maximum sentence.

       The trial court enhanced the Level 2 felony sentence by ten years—ten years

       less than the maximum enhancement allowed by statute. Watkins was

       sentenced to the advisory sentence for the Level 3 felony.


[19]   Watkins presents no authority or argument on the nature of his offenses.

       Instead, he focuses solely on the nature of his character. When considering the

       character of the offender, one relevant fact is the defendant’s criminal history.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1846 | May 22, 2020   Page 11 of 13
       Johnson v. State, 986 N.E.2d 852 (Ind. Ct. App. 2013). The significance of

       criminal history varies based on the gravity, nature, and number of prior

       offenses in relation to the current offense. Id.


[20]   Watkins’ criminal history consists of eight misdemeanor convictions—

       specifically, invasion of privacy, domestic battery, possession of a controlled

       substance (twice), operating a vehicle without ever receiving a license,

       possession of marijuana, resisting law enforcement, and purchasing more than

       3.6 grams of precursor in a day; and three felony convictions of possession of

       cocaine, maintaining a common nuisance, and burglary resulting in bodily

       injury. Six of his prior convictions involved controlled substances. He had an

       active warrant for a case involving guns and drugs in Mississippi when he was

       sentenced in the instant case. Watkins has an extensive criminal history that

       includes crimes similar to the instant offenses. Given Watkins’ criminal

       history, we cannot say that his sentence is inappropriate for his character.


[21]   Watkins has not shown that his thirty-year sentence is inappropriate in light of

       the nature of his offenses and his character. We therefore affirm the sentence

       imposed by the trial court.


[22]   Watkins further contends that, at sentencing, the trial court should have

       considered his “prior addiction to opiates that stemmed from a prescription that

       got away from him[,]” his “lengthy history of marijuana usage from the time he

       was fifteen . . . and continuing into his adulthood[,]” and his “strong

       dependence on cocaine that was a daily habit up until his arrest date” instead of


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1846 | May 22, 2020   Page 12 of 13
       “lean[ing] on his prior history and [the] fact that [he showed] a high risk to

       reoffend on the IRAS test.” Appellant’s Br. p. 16. We note, however, that

       Watkins told the officer who interviewed him for the pre-sentence investigation

       report that he was not a regular user of drugs or alcohol at the time of his arrest

       for the instant offenses and that he would not need substance abuse treatment

       upon his release from custody.


[23]   To the extent Watkins asserts that the trial court abused its discretion in the

       weight it gave to the aggravating and mitigating circumstances it found,

       Watkins’ assertion is not well taken. A sentencing court cannot abuse its

       discretion by failing to properly weigh aggravating and mitigating

       circumstances. Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), clarified on

       reh’g, 875 N.E.2d 218.


[24]   Judgment affirmed.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1846 | May 22, 2020   Page 13 of 13
