MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                   FILED
regarded as precedent or cited before any                                     Jul 22 2020, 10:31 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
Robert P. Magrath                                         Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath                            Attorney General of Indiana
Madison, Indiana                                          James T. Whitehead
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jacob Hart,                                               July 22, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          20A-CR-16
        v.                                                Appeal from the Dearborn Circuit
                                                          Court
State of Indiana,                                         The Honorable James D.
Appellee-Plaintiff.                                       Humphrey, Judge
                                                          Trial Court Cause No.
                                                          15C01-1810-F3-15



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-16 | July 22, 2020                            Page 1 of 12
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Jacob Hart (Hart), appeals his conviction for dealing in

      methamphetamine, a Level 3 felony, Ind. Code § 35-48-4-1.1(a)(2); maintaining

      a common nuisance, a Level 6 felony, I.C. § 35-49-5-1-5(c); and possession of a

      firearm by a serious violent felon, a Level 4 felony, I.C. § 35-47-4-5(c).


[2]   We affirm.


                                                   ISSUES
[3]   Hart presents three issues on appeal, which we consolidate and restate as:


          (1) Whether the State presented sufficient evidence beyond a reasonable

              doubt to support Hart’s conviction for dealing in methamphetamine and

              possession of a firearm by a serious violent felon; and

          (2) Whether Hart’s sentence is inappropriate in light of the nature of the

              offenses and his character.


                      FACTS AND PROCEDURAL HISTORY
[4]   Hart and Zion Burnett (Burnett) entered in a romantic relationship in July of

      2018. In September of 2018, Burnett met Rebecca Hunsucker (Hunsucker),

      who purchased methamphetamine from Hart for her own use. Hunsucker had

      two children: a middle-schooler and a child with special needs. By mid-

      September Hunsucker asked Hart and Burnett to live in her home to help watch

      her children while she was at work.




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-16 | July 22, 2020   Page 2 of 12
[5]   While living in Hunsucker’s residence, Burnett noticed that Hart regularly

      hosted guests, taking them into the bathroom privately where no one else could

      see them. Whenever Burnett attempted to enter the bathroom while Hart had

      visitors, Hart would become angry and yell at her. When asked about these

      meetings, Hart would explain that he was providing methamphetamine to help

      his guests with withdrawal symptoms. During this same time, Burnett also

      noticed Hart setting up a scale, weighing out smaller quantities of

      methamphetamine, and putting them in baggies. She videotaped Hart, who

      was unemployed at the time, counting out currency and waiving a gun. Hart

      showed Burnett how the gun worked and explained to her that he was going to

      sell the firearm.


[6]   On the morning of September 28, 2018, Hart, Hart’s brother, and another guest

      were in Hunsucker’s kitchen “baking marijuana butter” on the stove, causing a

      strong odor of marijuana to permeate the entire residence. (Transcript Vol. II,

      p. 103). When Hunsucker’s daughter arrived at middle school that morning,

      she reeked of marijuana, causing the resource officer to alert the Lawrenceburg

      Police Department with the request to perform a welfare check on the special

      needs child in Hunsucker’s residence, which was located 67.2 feet from the

      elementary school where children were playing outside during recess.


[7]   When police officers arrived within five feet of Hunsucker’s residence they

      could smell the marijuana emanating from inside the home. The officers

      knocked and Hart’s brother opened the door. After entering the residence, the

      officers secured the scene while applying and receiving approval for a search

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-16 | July 22, 2020   Page 3 of 12
      warrant. During their search of the house, officers located multiple bags of

      marijuana and a bag of methamphetamine inside a box of Newport cigarettes.

      They gathered digital scales and currency from Hart’s room, as well as multiple

      packages of clear sandwich baggies, which contained methamphetamine. The

      officers also discovered paraphernalia, such as a pipe with residue, hollowed

      out ink pen tubes commonly used to inhale smoke from indirectly heated drugs,

      and aluminum foil. A search of Hart’s cell phone revealed multiple videos,

      photographs, and other data, including a video of Hart waiving a gun. The

      officers also found a message from one of Hart’s Facebook friends, requesting a

      “couple G’s”—with “G” meaning a gram in drug slang. (Tr. Vol. II, p. 174).


[8]   On October 1, 2018, the State filed an Information, charging Hart with Level 3

      felony dealing in methamphetamine in an amount less than five grams in the

      presence of a child or in near proximity to a school; a Class A misdemeanor

      dealing in marijuana; a Level 6 felony maintaining a common nuisance; and a

      Class C misdemeanor possession of paraphernalia. The State amended the

      Information to include a Level 5 felony possession of marijuana; and a Level 4

      felony possession of a firearm by a serious violent felon.


[9]   On October 2, 2018, during the initial hearing in this cause, Hart informed the

      trial court with respect to the Level 3 felony dealing in methamphetamine:


              Anything that was found in that room, it’s mine. Not
              [Burnett’s], it’s not hers. Everything in that room, it’s mine.
              You can put that on paperwork. You guys can type that on the
              computers or whatever. You can write that . . . down.
              Everything is mine in that room.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-16 | July 22, 2020   Page 4 of 12
       (Tr. Vol. II, p. 191). Hart repeated the claim after being cautioned by the trial

       court, insisting that he would “take that fully to the chin,” while advising the

       trial court that he was “guilty” and requesting that the court free “his people.”

       (Tr. Vol. II, pp. 192, 193).


[10]   On November 4, 2019, Hart’s jury trial commenced. At the conclusion of the

       evidence, the jury found Hart guilty of dealing in methamphetamine,

       maintaining a common nuisance, possession of methamphetamine, and

       possession of a firearm by a serious violent felon. The jury found Hart not

       guilty of dealing in marijuana. On November 27, 2019, during the sentencing

       hearing, the trial court sentenced Hart to fourteen years executed for dealing in

       methamphetamine, to be served concurrently with the sentence imposed for

       maintaining a common nuisance, but consecutively to six years executed and

       four years suspended for illegal possession of a firearm by a serious violent

       felon, for an aggregate sentence of twenty-four years, with twenty years

       executed. The trial court vacated the conviction for possession of

       paraphernalia.


[11]   Hart now appeals. Additional facts will be provided if necessary.


                               DISCUSSION AND DECISION
                                          I. Sufficiency of the Evidence


[12]   Hart contends that the State failed to present sufficient evidence beyond a

       reasonable doubt to sustain his conviction for dealing in methamphetamine and

       his possession of a firearm as a serious violent felon. Our standard of review
       Court of Appeals of Indiana | Memorandum Decision 20A-CR-16 | July 22, 2020   Page 5 of 12
       with regard to sufficiency claims is well-settled. In reviewing a sufficiency of

       the evidence claim, this court does not reweigh the evidence or judge the

       credibility of the witnesses. Clemons v. State, 987 N.E.2d 92, 95 (Ind. Ct. App.

       2013). We consider only the evidence most favorable to the judgment and the

       reasonable inferences drawn therefrom and will affirm if the evidence and those

       inferences constitute substantial evidence of probative value to support the

       judgment. Id. Reversal is appropriate only when reasonable persons would not

       be able to form inferences as to each material element of the offense. Id.


                                       A. Dealing in Methamphetamine


[13]   To convict Hart of dealing in methamphetamine, a Level 3 felony, the State

       was required to establish that Hart dealt in methamphetamine of at least one

       gram but less than five grams in the physical presence of a child less than

       eighteen years of age or within five hundred feet of school property. I.C. § 35-

       48-4-1.1(a)(2)(A); -(d)(2). Hart contends that the State failed to carry its burden

       as Hart’s “constructive possession” of “a little over two (2) grams of

       methamphetamine and the presence of a box of unused sandwich bags” is more

       indicative of drug use rather than of an intent to distribute methamphetamine.

       (Appellant’s Br. p. 11).


[14]   As noted by the State, and we agree, Hart’s challenge to the possession of

       methamphetamine as being constructive ignores his blatant admission of

       ownership during the preliminary hearing, which was entered into evidence

       during his trial, claiming that “anything that was found in that room, it’s


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-16 | July 22, 2020   Page 6 of 12
       mine.” (Tr. Vol. II, p. 191). As such, Hart accepted ownership of the scales,

       the baggies, the currency, and the methamphetamine found in his room in

       Hunsucker’s residence.


[15]   In addition to the evidence establishing ownership, there is an abundance of

       evidence supporting Hart’s conviction for the dealing element of the charge.

       Several witnesses testified at trial that they either saw Hart sell

       methamphetamine or they purchased the illegal substance from him.

       Hunsucker told the jury that she purchased methamphetamine from Hart on

       five to ten different occasions. She observed Hart weighing it out and packing

       the substance into smaller baggies. Trevor Adkins confirmed that he bought

       methamphetamine from Hart on at least ten occasions in quantities of

       anywhere from one to two grams at the time, at a cost of between thirty to fifty

       dollars per gram. Burnett informed the court that she observed Hart take

       visitors into the bathroom at Hunsucker’s residence. When Burnett attempted

       to interrupt these private visits, Hart yelled at her and told her that he was

       helping the visitors with their withdrawal symptoms. She also videotaped Hart

       counting out currency at a time when he was unemployed. Moreover, within

       hours of his arrest, Hart received a message on his cell phone requesting a

       “couple of G’s.” (Tr. Vol. II, p. 172).


[16]   Given all of this evidence, the jury could reasonably infer that Hart was not

       merely a methamphetamine user but also a dealer who intended to distribute

       methamphetamine. Therefore, we conclude that the State presented sufficient

       evidence beyond a reasonable doubt to support Hart’s dealing conviction.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-16 | July 22, 2020   Page 7 of 12
                         B. Illegal Possession of Firearm by Serious Violent Felon


[17]   Hart was adjudicated a serious violent felon pursuant to Indiana Code section

       35-47-4-5(c), which provides that “[a] serious violent felon who knowingly or

       intentionally possesses a firearm commits unlawful possession of a firearm by a

       serious violent felon.” “Firearm” is defined as any weapon that is capable of

       expelling, designed to expel, or may readily be converted to expel a projectile by

       means of an explosion.” I.C. § 35-47-1-5. Not challenging his status as a

       serious violent felon, Hart instead contends that law enforcement testimony

       was “far from unequivocal” that he possessed a firearm as statutorily defined.

       (Appellant’s Br. p. 15). As no physical firearm was entered into evidence, Hart

       was convicted based on Burnett’s video of him brandishing a firearm. Hart

       now argues that the officers could not positively identify the object in the video

       as a firearm.


[18]   The record reflects that Detective Nicholas Beetz (Detective Beetz), positively

       identified the weapon as a firearm based on his twenty years of experience.

       Detective Beetz recognized the weapon to be a firearm based on its shape and

       special characteristics, such as the slide, the rails, the grip, and the striker firing

       system. He was able to confirm that the diameter of the barrel was consistent

       with the caliber of an ammunition round. After conducting further research,

       Detective Beetz was able to identify the firearm as a Browning .25 caliber. He

       excluded the possibility of the weapon to be a BB gun as it had every

       characteristic of a firearm.



       Court of Appeals of Indiana | Memorandum Decision 20A-CR-16 | July 22, 2020   Page 8 of 12
[19]   Although Hart had told Burnett that the weapon did not work because the

       magazine was broken, CSI and weapons systems expert Officer Steve Jackson

       (Officer Jackson) established that even with an inoperable magazine the firearm

       could still work by using a single round in the chamber with the slide closed.

       Officer Jackson opined that Hart was brandishing a real firearm and not a

       replica based on the carbon buildup which would be absent in a replica. Officer

       Jackson testified that he could identify the carbon accumulation from

       gunpowder between the back of the case and the weapon’s breechface.


[20]   Accordingly, based on the testimony of the two law enforcement witnesses, the

       jury could reasonably infer that Hart brandished a weapon that was capable of

       expelling a projectile by means of an explosion. See I.C. § 35-47-1-5. As such,

       we conclude that the State presented sufficient evidence beyond a reasonable

       doubt to support Hart’s adjudication as a serious violent felon in possession of a

       firearm.


                                      II. Appropriateness of the Sentence


[21]   Hart requests that we independently review the appropriateness of his sentence.

       “Even when a trial court imposes a sentence within its discretion, the Indiana

       Constitution authorizes independent appellate review and revision of this

       sentencing decision.” Hoak v. State, 113 N.E.3d 1209, 1209 (Ind. 2019). Thus,

       we may alter a sentence if, after due consideration of the trial court’s decision,

       we find that the sentence is inappropriate in light of the nature of the offense

       and the character of the offender. Id. The principal role of such review is to


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-16 | July 22, 2020   Page 9 of 12
       attempt to leaven the outliers. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008). The defendant bears the burden to persuade the reviewing court that the

       sentence imposed is inappropriate. Robinson v. State, 91 N.E.3d 574, 577 (Ind.

       2018).


[22]   Hart’s aggregate twenty-four year sentence is the combined result of the trial

       court’s imposition of fourteen years executed for dealing in methamphetamine,

       a Level 3 felony, and a consecutive six years executed, with four years

       suspended, for illegal possession of a firearm by a serious violent felon, a Level

       4 felony. “A person who commits a Level 3 felony [] shall be imprisoned for a

       fixed term of between three (3) and sixteen (16) years, with the advisory

       sentence being nine (9) years.” I.C. § 35-50-2-5. “A person who commits a

       Level 4 felony shall be imprisoned for a fixed term of between two (2) and

       twelve (12) years, with the advisory sentence being six (6) years.” I.C. § 35-50-

       2-5.5. Accordingly, the trial court imposed a sentence just shy of the maximum

       sentencing range for the Level 3 felony and the maximum for the Level 4

       felony.


[23]   With respect to the nature of the crime, we do not turn a blind eye to “facts of

       the incident that brought the defendant before” us or the “nature and

       circumstances of the crime as well as the manner in which the crime is

       committed.” Bethea v. State, 893 N.E.2d 1134, 1145 (Ind. 2013). Hart was

       dealing methamphetamine out of a residence in which he was invited as a guest

       and entrusted with the care of two minor children. While baking marijuana

       butter, he filled the home with the overwhelming stench of marijuana and

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-16 | July 22, 2020   Page 10 of 12
       endangered the child with special needs who was still in the home. The smell

       was so pungent that when the middle school age child reached school, the

       resource officer notified the authorities. Hart had several customers that came

       to Hunsucker’s residence to purchase methamphetamine from Hart.


[24]   Likewise, Hart’s character does not warrant a downward revision of his

       sentence. A defendant’s willingness to continue committing crimes is relevant

       for analysis of his character under Appellate Rule 7(B). Garcia v. State, 47 N.E.

       3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied. Independent of the current

       conviction, Hart’s criminal involvement includes juvenile detention, violation

       and revocation of probation, jail or prison discipline, a battery offense, and both

       felony and misdemeanor crimes. His criminal history commences in 2013,

       when he was a juvenile, with a delinquency adjudication of battery resulting in

       serious bodily injury. During his suspension, he tested positive for drugs and

       was subject to modification. As a juvenile, he was also adjudicated delinquent

       for criminal trespass. After he became an adult, he incurred a conviction for

       battery resulting in serious bodily injury to a law enforcement officer in 2018, in

       a case arising out of seven charges. Hart received a largely suspended sentence

       for the serious bodily injury conviction and violated his probation within four

       months. In addition to these offenses, he has been held in contempt of court.

       While awaiting trial for the current charges in the Dearborn County Law

       Enforcement Center, Hart was involved in approximately eleven jail incidents,

       including fighting with inmates, threats to jail officers, sexual gestures to an

       inmate, and striking and injuring a jail officer.


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-16 | July 22, 2020   Page 11 of 12
[25]   Besides his criminal history, Hart’s character clearly speaks to his disregard for

       others and the criminal justice system. While Hart contends that his “conduct

       was accompanied by restraint, regard, and lack of brutality,” it cannot be

       ignored that Hart dealt methamphetamine out of Hunsucker’s residence thereby

       abusing her hospitality and endangering her two minor children and children

       playing at a nearby school. (Appellant’s Br. p. 19). Accordingly, in light of the

       nature of the offense and Hart’s character, we cannot conclude that the imposed

       sentence is inappropriate.


                                             CONCLUSION
[26]   Based on the foregoing, we hold that the State presented sufficient evidence

       beyond a reasonable doubt to support Hart’s conviction for dealing in

       methamphetamine and possession of a firearm by a serious violent felon; and

       Hart’s sentence is not inappropriate in light of the nature of the offense and his

       character.


[27]   Affirmed.


       Mathias, J. and Tavitas, J. concur




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-16 | July 22, 2020   Page 12 of 12
