MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                 FILED
regarded as precedent or cited before any                                        Aug 29 2018, 10:03 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Frederick A. Turner                                      Curtis T. Hill, Jr.
Bloomington, Indiana                                     Attorney General of Indiana

                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dutch A. Choate,                                         August 29, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-814
        v.                                               Appeal from the Morgan Superior
                                                         Court
State of Indiana,                                        The Honorable Brian H. Williams,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         55D02-1701-F2-34



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-814 | August 29, 2018                        Page 1 of 6
                                       Statement of the Case
[1]   Dutch A. Choate appeals his conviction, following a jury trial, for possession of

      methamphetamine, as a Level 4 felony, and his sentence. Choate raises the

      following two issues for our review:


              1.       Whether the State presented sufficient evidence to support
                       his conviction.


              2.       Whether the trial court erred when it sentenced him to an
                       aggravated sentence for a felony conviction without
                       entering a sentencing statement.


[2]   We affirm in part, reverse in part, and remand for resentencing.


                                 Facts and Procedural History
[3]   On December 24, 2016, at 5:00 a.m., Morgan County Sheriff’s Department

      Officer Timothy Coryell went to a residence in Mooresville to serve an arrest

      warrant on Lee Harley Davidson Bates. Amber Harless, who lived at the

      residence, answered the door and gave Officer Coryell permission to enter and

      locate Bates. However, instead of entering personally, Officer Coryell informed

      other officers that Harless had indicated Bates was inside the residence, and

      other officers entered with a canine unit.


[4]   Officers apprehended Bates in the basement of the residence. There,

      Mooresville Police Department Officer Mark Harris, who was assisting Officer

      Coryell, heard “unknown people moving around” upstairs, which told Officer

      Harris that “the scene [wa]s not secure” and “could still pose a danger to the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-814 | August 29, 2018   Page 2 of 6
      law enforcement officers inside . . . .” Tr. Vol. 3 at 33. Accordingly, Officer

      Harris went upstairs to secure the residence.


[5]   Officer Harris entered Harless’ bedroom and looked under her bed, where he

      observed Choate “laying on his stomach” with “his hands in front of him.” Id.

      at 35. Officer Harris observed that Choate “had his hands on top of two

      baggies with a large amount of substance” in them, which Officer Harris “later

      determined to be methamphetamine[].” Id. at 37. After extracting Choate from

      underneath the bed, officers further observed under the bed a tray, a glass

      smoking pipe with some residue on it, and paraphernalia. Officers arrested

      Choate.


[6]   The State charged Choate with multiple offenses. After a jury trial, the jury

      found him guilty of possession of methamphetamine, as a Level 4 felony. The

      trial court entered its judgment of conviction and then sentenced Choate to an

      enhanced term of ten years executed in the Department of Correction.

      However, neither in its oral pronouncement of Choate’s sentence nor in its

      written sentencing order did the court identify any aggravating factors or

      otherwise explain its basis for Choate’s sentence. This appeal ensued.


                                     Discussion and Decision
                                Issue One: Sufficiency of the Evidence

[7]   Choate first argues on appeal that the State failed to prove his possession of the

      methamphetamine. For sufficiency challenges, we neither reweigh evidence

      nor judge witness credibility. Gibson v. State, 51 N.E.3d 204, 210 (Ind. 2016).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-814 | August 29, 2018   Page 3 of 6
       We consider only the evidence most favorable to the judgment together with all

       reasonable inferences that may be drawn from the evidence. Id. We will affirm

       the judgment if it is supported by substantial evidence, even if the evidence is

       conflicting. Id.


[8]    Possession can be either actual or constructive. “A person actually possesses

       contraband when she has direct physical control over it.” Gray v. State, 957

       N.E.2d 171, 174 (Ind. 2011). However, “[w]hen the State cannot show actual

       possession, it may nonetheless prevail on proof of constructive possession.” Id.

       “A person constructively possesses contraband when the person has (1) the

       capability to maintain dominion and control over the item; and (2) the intent to

       maintain dominion and control over it.” Id.


[9]    Choate argues on appeal that the State failed to show that he constructively

       possessed the two baggies of methamphetamine. But the State’s evidence

       shows that, when Officer Harris discovered Choate under Harless’ bed, Choate

       had “his hands on top of two baggies” filled with methamphetamine. Tr. Vol. 3

       at 37. This is not a constructive possession case. When caught, Choate was in

       actual possession of the methamphetamine.


[10]   Still, Choate argues on appeal that he just “jumped under the bed to hide” and

       in doing so just happened to be near contraband that was already there.

       Appellant’s Br. at 10. Choate’s argument is neither here nor there on appeal.

       The question before us is whether the State presented sufficient evidence to

       support the jury’s verdict. The State did so by showing that Choate had direct


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-814 | August 29, 2018   Page 4 of 6
       physical control over the methamphetamine when Officer Harris found him.

       We affirm his conviction.


                                             Issue Two: Sentence

[11]   Choate next contends on appeal that the trial court erred when it sentenced him

       to an enhanced term for a Level 4 felony without an explanation for that

       sentence. The State concedes that the trial court erred in this respect when it

       sentenced Choate, and we agree. See Anglemyer v. State, 868 N.E.2d 482, 490

       (Ind. 2007) (“One way in which a trial court may abuse its discretion [in

       sentencing] is failing to enter a sentencing statement at all.”).


[12]   However, the parties dispute the proper remedy for this error. Choate argues

       that he is entitled to the advisory sentence, as Indiana Code Section 35-38-1-1.3

       (2018) requires a sentencing statement be made in the pronouncement of a

       sentence for a felony conviction “unless the court imposes the advisory sentence

       for the felony.” Thus, Choate reasons, because the trial court did not enter the

       required sentencing statement, it was required to sentence him to the advisory

       sentence. The State asserts, instead, that we should affirm Choate’s sentence as

       harmless under Indiana Appellate Rule 7(B).


[13]   We have long recognized that, where a trial court has abused its discretion in

       sentencing a defendant, “the error is harmless if the sentence imposed was not

       inappropriate” under Rule 7(B). Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct.

       App. 2007) (citing Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007).

       However, central to our review under Rule 7(B) is our assessment of “the trial


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-814 | August 29, 2018   Page 5 of 6
       court’s recognition or nonrecognition of aggravators and mitigators as an initial

       guide to determining whether the sentence imposed was inappropriate.”

       Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016). We cannot do

       that where, as here, the trial court has not entered a sentencing statement at all

       for us to review. And neither can we say with confidence that the trial court

       would have imposed the same sentence had it properly considered reasons that

       enjoy support in the record. Anglemyer, 868 N.E.3d at 491. Accordingly, we

       reverse Choate’s sentence and remand for resentencing. See Windhorst, 868

       N.E.2d at 507.


[14]   Affirmed in part, reversed in part, and remanded for resentencing.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-814 | August 29, 2018   Page 6 of 6
