MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                                Feb 06 2017, 8:37 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
Hilary Bowe Ricks                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Brian Walton,                                            February 6, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1601-CR-64
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Shatrese M.
Appellee-Plaintiff                                       Flowers, Judge
                                                         Trial Court Cause No.
                                                         49G20-1303-FA-18354



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017        Page 1 of 16
                                            Case Summary

[1]   Brian Walton appeals his convictions and sentence for class A felony dealing in

      cocaine and class B felony dealing in narcotics. He challenges the trial court’s

      jury instruction defining possession as well as its refusal to give his “mere

      presence” instruction. He also challenges the trial court’s treatment of certain

      mitigators and aggravators during sentencing and asserts that his thirty-five-year

      sentence is inappropriate in light of the nature of the offenses and his character.

      We affirm.


                              Facts and Procedural History
[2]   The facts most favorable to the verdict are as follows. On March 18, 2013,

      Indianapolis Metropolitan Police Department Detective Steven Brinker worked

      undercover with a confidential informant (“CI”) to conduct a controlled drug

      buy. The dealer with whom they had originally planned their deal arrived at

      the rendezvous point and told the detective and the CI that he had run out of

      drugs and would have to wait to be resupplied. Shortly thereafter, a warning

      signal came on in the detective’s vehicle indicating a need to add motor oil. As

      the detective and the CI looked under the hood to address the problem, a gold

      van approached and parked in front of them. The CI recognized one of the

      men in the gold van, who exited and walked down the street. The CI spoke

      with a person inside the gold van, and Detective Brinker approached. The

      detective noted that the driver, identified as Walton, was the only person in the

      gold van. He also observed a black sock in Walton’s lap containing what

      Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017   Page 2 of 16
      appeared to be a large quantity of crack cocaine. Another man, identified as

      Tristan Spralls, stood outside the van behind Detective Brinker as the detective

      and Walton conversed. The detective handed Walton a marked twenty-dollar

      bill, in exchange for which Walton handed him a packet containing a substance

      later determined to be heroin.


[3]   Detective Brinker returned to his vehicle and added motor oil. Immediately

      thereafter, a third man approached him. The man, identified as Brandon

      Walker, gave the detective twenty dollars’ worth of crack cocaine in exchange

      for forty dollars in marked cash. The two men returned to the gold van to

      obtain some more crack cocaine, for which the detective had already paid.

      Detective Brinker noticed that Walton had moved to the passenger’s seat and

      was still holding the black sock. Walton broke off a piece of the substance in

      the sock and handed it to Spralls, who was now sitting in the driver’s seat.

      Spralls immediately handed Detective Brinker the substance, later determined

      to be crack cocaine.


[4]   The gold van left, and Detective Brinker radioed other officers nearby to

      conduct a stop and arrest. The officers searched for the gold van and found it

      parked near an abandoned house. Police apprehended Walton, Spralls, and

      Walker nearby. A search of the air vents in the gold van produced the black

      sock, which contained one packet of 1.8067 grams of heroin, one packet of

      84.99 grams of cocaine, and another packet containing 58.01 grams of cocaine.

      Officers also recovered the marked bills and a total of $3000 cash.



      Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017   Page 3 of 16
[5]   The State charged Walton with class A felony dealing in cocaine; class C felony

      possession of cocaine; class B felony dealing in narcotics (heroin); class D

      felony possession of heroin; class B felony dealing in cocaine; class B felony

      conspiracy to deal cocaine; and class B felony conspiracy to deal cocaine.

      During his jury trial, the trial court held a conference to discuss jury

      instructions. Walton tendered an instruction on “mere presence,” which the

      trial court refused. The jury acquitted Walton of class B felony conspiracy to

      deal cocaine and convicted him on the six remaining counts. The trial court

      merged the convictions and entered judgment on class A felony dealing in

      cocaine and class B felony dealing in heroin. The trial court sentenced Walton

      to thirty-five and fifteen years, to be served concurrently.


[6]   Walton now appeals. Additional facts will be provided as necessary.


                                   Discussion and Decision
        Section 1 – The trial court did not commit reversible error in
              refusing Walton’s “mere presence” instruction.
[7]   Walton contends that the trial court erred in refusing his tendered instruction

      on “mere presence.” The trial court has broad discretion in instructing the jury,

      and as a result, we review the trial court’s decision to give or refuse a party’s

      tendered instruction for an abuse of discretion. Kane v. State, 976 N.E.2d 1228,

      1231 (Ind. 2012). In conducting our review, we consider “(1) whether the

      tendered instruction correctly states the law; (2) whether there was evidence

      presented at trial to support giving the instruction; and (3) whether the


      Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017   Page 4 of 16
      substance of the instruction was covered by other instructions that were given.”

      Id. at 1230-31. “The purpose of a jury instruction is to inform the jury of the law

      applicable to the facts without misleading the jury and to enable it to

      comprehend the case clearly and arrive at a just, fair, and correct verdict.” Isom

      v. State, 31 N.E.3d 469, 484 (Ind. 2015) (internal quotation marks omitted), cert.

      denied (2016).


[8]   Walton’s tendered instruction on mere presence reads, “You are hereby

      instructed that it is the law of the State of Indiana that the mere presence at a

      crime scene alone is not sufficient to support guilt beyond a reasonable doubt.”

      Appellant’s App. at 115. The State also submitted a proposed instruction on

      mere presence, noting its opinion that a mere presence instruction was not

      necessary but reasoning that if the trial court found it appropriate to give one, it

      should be a longer, more complete definition. The trial court cited Detective

      Brinker’s testimony concerning a hand-to-hand exchange from Walton and

      refused both parties’ tendered instructions. Tr. at 272.


[9]   We agree with the trial court that the evidence did not support a mere presence

      instruction. Detective Brinker testified that he purchased heroin directly from

      Walton in exchange for the marked twenty-dollar bill. He observed a black

      sock in Walton’s lap at the time of the transaction. Later, when he returned to

      the van to retrieve the second half of the crack cocaine, he reported that Walton

      still had the black sock containing what appeared to be crack cocaine and that

      he saw Walton break off a piece of the crack and hand it to Spralls, who in turn

      handed it to him. The evidence showed that Walton was not merely present

      Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017   Page 5 of 16
       but instead was an active participant in the heroin and crack cocaine deals. The

       trial court acted within its discretion when it refused Walton’s tendered

       instruction on mere presence.


        Section 2 – The trial court did not commit fundamental error
            in giving the State’s instruction defining possession.
[10]   In a related argument, Walton challenges the trial court’s instruction defining

       possession. As the parties correctly observe, Walton did not object to the

       possession instruction at trial. See Id. at 268 (Walton specifically stated, “No,

       no objection,” concerning the instruction). As such, he has waived the issue for

       review absent a showing of fundamental error. See Covey v. State, 929 N.E.2d

       813, 819 (Ind. Ct. App. 2010) (defendant’s failure to object to jury instruction

       results in waiver on appeal, except where error constituted fundamental error).

       Fundamental error is an extremely narrow exception to the waiver rule,

       whereby the defendant must demonstrate that the alleged error is so prejudicial

       to his rights as to “make a fair trial impossible.” Ryan v. State, 9 N.E.3d 663,

       668 (Ind. 2014). The fundamental error doctrine “applies only when the error

       constitutes a blatant violation of basic principles, the harm or potential for harm

       is substantial, and the resulting error denies the defendant fundamental due

       process.” Covey, 929 N.E.2d at 819.


[11]   “Jury instructions are to be considered as a whole and in reference to each

       other; error in a particular instruction will not result in reversal unless the entire

       jury charge misleads the jury as to the law of the case.” Flake v. State, 767

       N.E.2d 1004, 1007 (Ind. Ct. App. 2002). “Instructions that unnecessarily

       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017   Page 6 of 16
       emphasize one particular evidentiary fact, witness, or phase of the case have

       long been disapproved.” Ludy v. State, 784 N.E.2d 459, 461 (Ind. 2003).


[12]   Final instruction No. 3 reads,

               The word “possess” means to own or to exert control over. The
               word “possession” can take on several different, but related,
               meanings.

               There are two kinds of “possession” – actual possession and
               constructive possession. A person who knowingly has direct
               physical control of a thing at a given time is then in actual
               possession of it. A person who, although not in actual
               possession, knowingly has both the power and the intention at a
               given time to exercise control over a thing, either directly or
               through another person or persons, is then in constructive
               possession of it.

               Possession may be sole or joint. If one person alone has
               actual or constructive possession of a thing, then possession is
               sole. If two or more persons share actual or constructive
               possession of a thing, then possession is joint. Possession may
               be actual or constructive, and either alone or jointly with
               others.

               To establish constructive possession the State must prove a
               person had both the capability and the intent to maintain
               dominion and control over the contraband. The capability
               requirement means the State must show a person was able to
               reduce the contraband to his personal possession. The intent
               requirement means the State must show a person had knowledge
               of the contraband’s presence. Knowledge may be inferred from a
               person’s exclusive dominion and control over the premises
               containing the contraband, or from additional circumstances
               tending to show a person’s knowledge of the presence of the
               contraband. Examples of such circumstances include but are not
       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017   Page 7 of 16
               limited to:

               1) incriminating statements by a person;

               2) attempted flight or furtive gestures;

               3) location of substances like drugs in settings that suggest
               manufacturing;

               4) proximity of the contraband to a person;

               5) contraband within a person’s plain view; and

               6) mingling of the contraband with items owned by a person.


       Appellant’s App. at 122.


[13]   In Gray v. State, our supreme court explained the requirement of possession,

       both actual and constructive.


               A person actually possesses contraband when she has direct
               physical control over it. But a conviction for a possessory offense
               does not depend on catching a defendant red-handed. When the
               State cannot show actual possession, a conviction for possessing
               contraband may rest instead on proof of constructive possession.
               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.
               A trier of fact may infer that a defendant had the capability to
               maintain dominion and control over contraband from the simple
               fact that the defendant had a possessory interest in the premises
               on which an officer found the item. We allow this inference even
               when that possessory interest is not exclusive. A trier of fact may
               likewise infer that a defendant had the intent to maintain
               dominion and control over contraband from the defendant’s

       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017   Page 8 of 16
               possessory interest in the premises, even when that possessory
               interest is not exclusive. When that possessory interest is not
               exclusive, however, the State must support this second inference
               with additional circumstances pointing to the defendant’s
               knowledge of the presence and the nature of the item.


       957 N.E.2d 171, 174-75 (Ind. 2011) (citations omitted).1


[14]   Here, the evidence shows that Walton had actual possession of the cocaine and

       heroin. Detective Brinker received the heroin in a hand-to-hand exchange from

       Walton. As for the cocaine, the detective twice observed Walton with the black

       sock that appeared to contain crack cocaine, and he observed Walton break off

       a piece of the crack rock and hand it to Spralls, who handed it to the detective.

       Subsequent testing showed that the sock contained 143 grams of crack cocaine.

       We find no error, fundamental or otherwise, in the trial court’s giving of Final

       Instruction No. 3.


           Section 3 – The trial court acted within its discretion in its
             treatment of mitigating and aggravating factors during
                                   sentencing.
[15]   Walton challenges the trial court’s treatment of mitigating and aggravating

       factors during sentencing. Sentencing decisions rest within the sound discretion

       of the trial court, and as long as a sentence is within the statutory range, it is




       1
         As best we can discern, Walton’s complaint is that the jury instruction is confusing concerning the mens
       rea element of constructive possession. We find that his argument lacks cogency and therefore is waived
       pursuant to Indiana Appellate Rule 46(A)(8). Elvers v. State, 22 N.E.3d 824, 833 n.4 (Ind. Ct. App. 2014).
       Even so, the record clearly supports Walton’s actual possession of the contraband.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017            Page 9 of 16
       subject to review only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d

       482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. An abuse of discretion

       occurs where the trial court’s decision is clearly against the logic and effect of

       the facts and circumstances before it, or the reasonable, probable, and actual

       deductions to be drawn therefrom. Sloan v. State, 16 N.E.3d 1018, 1026 (Ind.

       Ct. App. 2014). A trial court may abuse its discretion if the sentencing

       statement omits mitigating factors that are clearly supported by the record and

       advanced for consideration or identifies aggravating factors that are not

       supported by the record. Anglemyer, 868 N.E.2d at 490-91.


[16]   Walton first claims that the trial court abused its discretion by omitting certain

       mitigators advanced for consideration. The trial court is not obligated to accept

       the defendant’s argument concerning what constitutes a mitigating factor.

       Healey v. State, 969 N.E.2d 607, 616 (Ind. Ct. App. 2012), trans. denied.

       Moreover, if the trial court does not find the existence of a mitigator after it has

       been argued by counsel, the court is not obligated to explain why it found the

       circumstance not to be mitigating. Anglemyer, 868 N.E.2d at 493.


[17]   In particular, Walton cites as an overlooked mitigator the hardship that a

       lengthy sentence would place on his children. The trial court is not required to

       find that a defendant’s incarceration would result in undue hardship on his

       dependents. Benefield v. State, 904 N.E.2d 239, 247 (Ind. Ct. App. 2009), trans.

       denied. “Many persons convicted of crimes have dependents and, absent special

       circumstances showing that the hardship to them is ‘undue,’ a trial court does

       not abuse its discretion by not finding this to be a mitigating factor.” Id. At

       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017   Page 10 of 16
       sentencing, Walton introduced testimony from his mother and girlfriend

       extolling his loving and active participation not only with his own children but

       also with his girlfriend’s children. The trial court heard the evidence and simply

       did not find this factor to be mitigating. We find no abuse of discretion here.

       While Walton’s mother referenced some behavior problems that she had

       observed in his five-year-old son since his incarceration, the evidence did not

       reflect special circumstances indicative of undue hardship.


[18]   With respect to Walton’s other proffered mitigators, we first note that the trial

       court did take into account the rehabilitative programs that he completed in jail.

       As for his expressions of remorse, Walton never expressed remorse for

       committing the offenses; rather, he said that he was sorry for associating with

       his cohorts. See Price v. State, 765 N.E.2d 1245, 1253 (Ind. 2002) (no abuse of

       discretion where trial court did not find remorse as mitigator where defendant’s

       statements of remorse fell “well short of a full acceptance of responsibility”).

       The trial court was in the best position to evaluate Walton’s expressions, and

       we will not reassess them. We find no abuse of discretion in the trial court’s

       treatment of mitigating factors.


[19]   Walton also takes issue with the trial court’s treatment of aggravating factors.

       The trial court identified as aggravators Walton’s juvenile record (including two

       true findings, one for an offense that would have been a felony if committed by

       an adult); adult criminal record (including nine convictions, four of which were

       felonies); recent parole violation; three probation revocations; the nature and

       circumstances of the current offenses; and his arrest for another drug offense

       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017   Page 11 of 16
       while out on bond in the present cause. He claims that the trial court erred in

       counting his juvenile and adult criminal records as two separate aggravators.

       He also takes umbrage with the court’s identification of the nature and

       circumstances of the offenses, which he claims was not sufficiently detailed to

       constitute a valid aggravator. We address the nature and circumstances of the

       offenses as part of our Indiana Appellate Rule 7(B) analysis below.


[20]   As for the trial court’s separate identification of Walton’s juvenile and adult

       criminal records, the trial court’s consideration of aggravators and mitigators is

       not a mathematics equation in which the court simply subtracts the lesser

       number from the greater; rather, the trial court identifies aggravators supported

       by the record, and we conduct our review without reweighing the properly

       identified factors. See Anglemyer, 868 N.E.2d at 491 (“The relative weight or

       value assignable to reasons properly found or those which should have been

       found is not subject to review for abuse [of discretion].”). The record supports

       the identified aggravators, and we decline Walton’s invitations to assign a

       different weight to them. We find no abuse of discretion here.


             Section 4 – Walton has failed to meet his burden of
         establishing that his sentence is inappropriate in light of the
                   nature of his offenses and his character.
[21]   Finally, Walton asks that we review and revise his sentence pursuant to

       Appellate Rule 7(B), which states that we “may revise a sentence authorized by

       statute if, after due consideration of the trial court’s decision, [this] Court finds

       that the sentence is inappropriate in light of the nature of the offense and the

       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017   Page 12 of 16
       character of the offender.” When a defendant requests appellate review and

       revision of his sentence, we have the power to affirm or reduce the sentence.

       Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). In conducting our review, we

       may consider all aspects of the penal consequences imposed by the trial court in

       sentencing, i.e., whether it consists of executed time, probation, suspension,

       home detention, or placement in community corrections, and whether the

       sentences run concurrently or consecutively. Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010). We do not look to see whether the defendant’s

       sentence is appropriate or if another sentence might be more appropriate; rather,

       the test is whether the sentence is “inappropriate.” Fonner v. State, 876 N.E.2d

       340, 344 (Ind. Ct. App. 2007). A defendant bears the burden of persuading this

       Court that his sentence meets the inappropriateness standard. Anglemyer, 868

       N.E.2d at 490.


[22]   In considering the nature of Walton’s offenses, “the advisory sentence is the

       starting point the Legislature has selected as an appropriate sentence.” Id. at

       494. When determining the appropriateness of a sentence that deviates from an

       advisory sentence, we consider whether there is anything more or less egregious

       about the offense as committed by the defendant that “makes it different from

       the typical offense accounted for by the legislature when it set the advisory

       sentence.” Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011). The

       jury found Walton guilty of four felony dealing offenses and two felony

       possession offenses. The trial court merged his convictions and entered

       judgment on one count each of class A and class B felony dealing and


       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017   Page 13 of 16
       sentenced him to concurrent thirty-five- and fifteen-year terms. A class A

       felony carries a sentencing range of twenty to fifty years, with a thirty-year

       advisory term. Ind. Code § 35-50-2-4 (2013). A class B felony carries a

       sentencing range of six to twenty years, with a ten-year advisory term. Ind.

       Code § 35-50-2-5 (2013).


[23]   Walton correctly observes that there are no exceptional circumstances

       surrounding his offenses that would militate toward a lengthier sentence.

       Nevertheless, we note that the black sock that Walton held and/or had in his

       lap during the drug transactions was found to contain 143 grams of crack

       cocaine, a quantity exponentially larger than the three-gram threshold for his

       class A felony dealing offense. Ind. Code § 35-48-4-1(b) (2013). We also note

       the number and seriousness of the offenses of which he was found guilty (one

       class A felony, three class B felonies, one class C felony, and one class D

       felony) and observe that his aggregate thirty-five-year term is well below his

       maximum sentence exposure.


[24]   As for Walton’s character, we conduct our review by engaging in a broad

       consideration of his qualities. Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App.

       2014), clarified on other grounds on reh’g, 11 N.E.3d 571. On the positive side, he

       has completed numerous courses during his incarceration aimed at self-

       improvement and addressing his drug abuse issues. He appears to be an




       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017   Page 14 of 16
       attentive father, at least as to some of his children. 2 On the negative side, his

       most notable quality is his sustained disrespect for the law, as evidenced by a

       criminal record that spans two decades. At age thirteen, he had a true finding

       for shoplifting, class D felony theft if committed by an adult. He later had true

       findings for criminal trespass and curfew violation. Entering into adulthood, he

       was convicted of driving while suspended, resisting law enforcement, and class

       D felony possession of a controlled substance. He followed up with convictions

       for felony theft, felony cocaine possession, and felony auto theft, all the while

       continuing to drive on a suspended license. He has had his probation revoked

       three times, and while he was out on bail in the instant cause, he was arrested at

       a local motel and charged with multiple dealing and possession offenses,

       including four felonies and a misdemeanor. He is currently unemployed, and

       though he stated that he previously supported himself by flipping houses, he

       also reported that he has never filed a tax return. Appellant’s App. at 158.


[25]   Simply put, Walton is a career criminal who has neither learned from his

       mistakes nor responded favorably to lenient treatment. He has failed to meet

       his burden of establishing that his sentence is inappropriate in light of the nature

       of the offense and his character. Accordingly, we affirm.




       2
         The testimony concerning Walton’s attentive parenting appears mainly to concern the two children that he
       fathered with his current girlfriend and the girlfriend’s own children. The record shows that he has fathered
       seven additional children with six different mothers, and that he occasionally sees his other children, mostly
       when those children stay at his mother’s home. The record shows that he is in arrears on child support.
       Appellant’s App. at 158.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017            Page 15 of 16
[26]   Affirmed.


       Kirsch, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017   Page 16 of 16
