MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                        Aug 10 2017, 8:43 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
Leanna Weissmann                                         Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                    Attorney General of Indiana

                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Todd Norman,                                             August 10, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         69A05-1611-CR-2661
        v.                                               Appeal from the Ripley Circuit
                                                         Court
State of Indiana,                                        The Honorable Ryan King, Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         69C01-1602-F2-1



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 69A05-1611-CR-2661 | August 10, 2017    Page 1 of 12
                                             Case Summary
[1]   Todd Norman appeals his conviction for Level 2 felony possession of

      methamphetamine with the intent to deliver. We affirm.


                                                    Issues
[2]   Norman presents three issues on appeal, which we restate as:


                I.    whether the trial court abused its discretion by allowing
                      the State to question Norman about his missing cell
                      phone;


               II.    whether the State presented sufficient evidence to convict
                      Norman of Level 2 felony possession of
                      methamphetamine with the intent to deliver; and


              III.    whether the sentence imposed was inappropriate in light of
                      the nature of the offense and the character of the offender.


                                                     Facts
[3]   On February 17, 2016, Versailles Town Marshall Joseph Mann and Ripley

      County Probation Officer Ethan Back conducted a routine probation visit at

      Norman’s home. After some time had passed, Norman opened the door and

      allowed the officers to enter. Upon entering, Officer Back noticed alcohol

      inside Norman’s home, which violated the terms of his probation and gave the

      officers a reason to inspect the home further. Marshall Mann discovered a bag

      that contained a white crystalline substance under a couch cushion. The

      substance was later identified as 12.59 grams of methamphetamine. Mann


      Court of Appeals of Indiana | Memorandum Decision 69A05-1611-CR-2661 | August 10, 2017   Page 2 of 12
      testified that this amount equals about 125 individual uses of the drug. After

      the discovery of methamphetamine, Mann contacted the Batesville Police

      Department, and Batesville Detective Blake Roope arrived on the scene. Mann

      then discovered a digital scale that contained residue similar in appearance to

      methamphetamine. Detective Roope decided not to have the residue on the

      scale tested. Officer Back and Detective Roope later observed a blue container

      sitting on a ladder inside one of Norman’s rooms. Eight thousand dollars in

      cash was found inside the container. Officers also found $500 inside Norman’s

      pockets.


[4]   On February 18, 2016, the State charged Norman with Level 2 felony

      possession of methamphetamine with the intent to deliver and Level 4 felony

      possession of methamphetamine. On August 22, 2016, the State filed a motion

      to amend the Level 2 felony charge and dismiss the Level 4 felony charge. The

      trial court granted the motion, and a jury trial was held on August 23-24, 2016.

      During the trial, Mann testified that drug dealers often use scales to measure

      product intended for sale. He also testified that buyers of illegal substances

      typically use cash for their transactions. Mann also stated that

      methamphetamine is typically packaged in half gram to one gram quantities,

      but that it is not unusual to see it packaged in quantities of three to three-and-

      one-half grams. Mann also testified that a gram of methamphetamine typically

      costs $100 and three grams cost between $225 and $250. He also testified that

      dealers of illegal substances typically keep digital records of sales on phones and

      other electronic devices.


      Court of Appeals of Indiana | Memorandum Decision 69A05-1611-CR-2661 | August 10, 2017   Page 3 of 12
[5]   Norman testified in his own defense that the methamphetamine found in his

      home did not belong to him but that he entertains friends often and one of them

      could have left it. Norman also testified that he plays darts competitively and

      uses the scale to measure the weight of the darts. On cross-examination, the

      State questioned Norman about his missing cell phone; Norman objected to this

      questioning. The trial court overruled the objection. Norman then testified that

      his phone was missing. He also testified that he remembered talking to his

      sister about the phone, but he denied asking her to destroy it. Norman stated,

      “That’s, I don’t know if I, I don’t know exactly what I said, but it wasn’t

      nothing that drastic.” Tr. Vol. III p. 235. Norman claimed that he did not trust

      banks and as such withdrew his paychecks every month. He also testified that

      he had recently made a cash withdrawal to buy a new television set.


[6]   The jury found Norman guilty of Level 2 felony possession of

      methamphetamine with the intent to deliver. The trial court sentenced Norman

      to twenty-seven-and-one-half years in the Department of Correction with five

      years suspended to probation. Norman now appeals.

                                                  Analysis
                                         I. Admission of Evidence

[7]   Norman argues that the trial court abused its discretion in allowing the State to

      question him about his missing cell phone. We review the admission of

      evidence for an abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272

      (Ind. 2002). An abuse of discretion occurs “where the decision is clearly

      against the logic and effect of the facts and circumstances.” Smith v. State, 754

      Court of Appeals of Indiana | Memorandum Decision 69A05-1611-CR-2661 | August 10, 2017   Page 4 of 12
      N.E.2d 502, 504 (Ind. 2001). In reviewing the admissibility of evidence, we

      consider only the evidence in favor of the trial court’s ruling. Whiteside v. State,

      853 N.E.2d 1021, 1025 (Ind. Ct. App. 2006).


[8]   Norman contends that the State made a “tenuous connection by implying a lost

      cell phone might have shown evidence of drug dealing,” arguing that the

      testimony “bore no relevance to Norman’s intent concerning the bag of

      methamphetamine.” Appellant’s Br. p. 16. Indiana Evidence Rule 401(a)

      provides that, “evidence is relevant if: it has any tendency to make a fact more

      or less probable than it would be without the evidence.” The State presented

      testimony that dealers of illegal substances often keep records of sales on their

      cell phones. The State questioned Norman as to whether he had asked his

      sister to destroy his cell phone to hide such evidence. Although Norman denied

      the allegations, he acknowledged that a cell phone does have the ability to store

      information from texts and emails and that his phone was missing.


[9]   Norman also argues that, even if the evidence had relevance, “The implication

      that Norman destroyed evidence of wrongdoing came with too great a risk of

      prejudice.” Appellant’s Br. p. 16. Evidence Rule 403 provides, “The court may

      exclude relevant evidence if its probative value is substantially outweighed by a

      danger of one or more of the following: unfair prejudice, confusing the issues,

      misleading the jury, undue delay, or needlessly presenting cumulative

      evidence.” “All relevant evidence is inherently prejudicial in a criminal

      prosecution.” Carter v. State, 766 N.E.2d 377, 382 (Ind. 2002), reh’g denied.

      “The trial court has wide latitude, however, in weighing the probative value of

      Court of Appeals of Indiana | Memorandum Decision 69A05-1611-CR-2661 | August 10, 2017   Page 5 of 12
       the evidence against the possible prejudice of its admission.” Goldsberry v. State,

       821 N.E.2d 447, 455 (Ind. Ct. App. 2005) (quoting Evans v. State, 727 N.E.2d

       1072, 1079 (Ind. 2000)). The State’s questioning of Norman about his cell

       phone was not unduly prejudicial. Norman contends that, “The State implied

       that Norman actively worked to destroy his cell phone to cover up his illegal

       activities.” Appellant’s Br. p. 18. However, when questioned about his missing

       phone, he did not admit that his phone contained any evidence of drug dealing

       and further denied asking his sister to destroy it. The probative value of the

       testimony was not substantially outweighed by unfair prejudice.


[10]   Finally, Norman also contends that the trial court abused its discretion in

       allowing this evidence because it was improper evidence of a bad act.

       Specifically, Norman argues that, “The State used the missing cell phone to

       plant a seed in jurors’ minds that the phone had been destroyed because it

       contained evidence of drug dealing.” Id. at 15. Evidence Rule 404(b)(1)

       provides that, “Evidence of a crime, wrong, or other act is not admissible to

       prove a person’s character in order to show that on a particular occasion the

       person acted in accordance with the character.” This kind of evidence is

       admissible, however, if it is used to prove “motive, opportunity, intent,

       preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

       See Ind. Evidence Rule 404(b)(2). The rationale for the prohibition against bad

       act and character evidence is that the jury is precluded from making the

       forbidden inference that the defendant had a criminal propensity and therefore

       engaged in the charged conduct. Duvall v. State, 978 N.E.2d 417, 423 (Ind. Ct.


       Court of Appeals of Indiana | Memorandum Decision 69A05-1611-CR-2661 | August 10, 2017   Page 6 of 12
       App. 2012), trans. denied. “A trial court faced with a 404(b) question must: (1)

       decide if the evidence of other crimes, wrongs, or acts is relevant to the matter

       at issue other than the defendant’s propensity to commit the charged act; and

       (2) balance the probative value of the evidence against its prejudicial effect

       pursuant to Rule 403.” Hicks v. State, 690 N.E.2d 215, 219 (Ind. 1997).


[11]   There is nothing inherently wrong or criminal about destroying one’s own cell

       phone. Standing alone, it would not be evidence of Norman’s “propensity” to

       engage in methamphetamine dealing or criminal conduct more generally. The

       only sense in which Norman’s destruction of his cell phone could be labeled a

       “bad act” is if it implied he was attempting to conceal evidence of drug dealing.

       As a general rule, evidence of a defendant’s attempts to conceal evidence is

       admissible as revealing consciousness of guilt. Bennett v. State, 787 N.E.2d 938,

       946 (Ind. Ct. App. 2003), trans. denied; Robinson v. State, 720 N.E.2d 1269, 1272

       (Ind. Ct. App. 1999). See also Larry v. State, 716 N.E.2d 79, 81 (Ind. Ct. App.

       1999) (holding evidence that defendant battered witness and called him a

       “snitch” was admissible under Evidence Rule 404(b) as evidence of

       “knowledge” or consciousness of guilt). In sum, the trial court did not abuse its

       discretion in allowing evidence regarding destruction of Norman’s cell phone; it

       was admissible under Evidence Rules 401, 403, and 404(b).


                                         II. Sufficiency of Evidence

[12]   Norman argues that the evidence was insufficient to sustain his conviction for

       possession of methamphetamine with the intent to deliver. When reviewing a

       claim of insufficient evidence, we neither reweigh evidence nor judge the
       Court of Appeals of Indiana | Memorandum Decision 69A05-1611-CR-2661 | August 10, 2017   Page 7 of 12
       credibility of witnesses. Rutherford v. State, 866 N.E.2d 867, 871 (Ind. Ct. App.

       2007). We consider only the evidence favorable to the judgment and any

       reasonable inferences to be drawn therefrom. Glotzbach v. State, 783 N.E.2d

       1221, 1226 (Ind. Ct. App. 2003). We will affirm a conviction unless we

       conclude that no reasonable fact-finder could find the elements of the crime

       proven beyond a reasonable doubt. Stokes v. State, 922 N.E.2d 758, 763 (Ind.

       Ct. App. 2010), trans. denied.


[13]   Pursuant to Indiana Code Section 35-48-4-1.1, a person who possesses

       methamphetamine with the intent to deliver commits a Level 2 felony if “the

       amount of the drug involved is at least ten grams.” Norman argues that,

       although the State presented evidence that he possessed more than ten grams of

       methamphetamine, the evidence to prove intent to deliver was “weak

       circumstantial evidence showing a suspicious possibility, but not a legal

       certainty.” Appellant’s Br. p. 22. The mental state of intent can only be

       established by considering the behavior of the relevant actor, the surrounding

       circumstances, and the reasonable inferences to be drawn therefrom. Richardson

       v. State, 856 N.E.2d 1222, 1227 (Ind. Ct. App. 2006), trans. denied. As a general

       premise, possession of a large amount of a narcotic substance is circumstantial

       evidence of intent to deliver. Cline v. State, 860 N.E.2d 647, 650 (Ind. Ct. App.

       2007). The higher the amount of narcotics found in a person’s possession, the

       stronger the inference that he intended to deliver it and not consume it

       personally. Id. See Davis v. State, 791 N.E.2d 266, 270 (Ind. Ct. App. 2003),

       trans. denied. Other circumstances that may support a finding of drug dealing

       Court of Appeals of Indiana | Memorandum Decision 69A05-1611-CR-2661 | August 10, 2017   Page 8 of 12
       instead of mere possession include the defendant’s possession of a large amount

       of cash and indicia of dealing, such as scales. See Hape v. State, 903 N.E.2d 977,

       997-98 (Ind. Ct. App. 2009), trans. denied; Richardson, 856 N.E.2d at 1227-28.


[14]   Mann testified that methamphetamine is usually sold in half gram to one gram

       quantities for a typical user. Mann also testified that some users buy “eight

       ball” quantities of methamphetamine, which usually contain three to three-and-

       one-half grams. Tr. Vol. III p. 37. He also testified that scales are typically

       used to weigh the product for sale and that buyers of illegal substances typically

       use cash for their purchases. Norman had 12.59 grams of methamphetamine,

       which equals approximately 125 uses of the drug, $8,500 in cash, and a scale

       with residue similar in appearance to methamphetamine in his possession. The

       State presented sufficient evidence to sustain his conviction.


                                        III. Inappropriate Sentence

[15]   We now assess whether Norman’s sentence is inappropriate in light of the

       nature of the offense and the character of the offender under Indiana Appellate

       Rule 7(B). See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on

       reh’g, 875 N.E.2d 218 (Ind. 2007). Although Rule 7(B) does not require us to be

       “extremely” deferential to a trial court’s sentencing decision, we still must give

       due consideration to that decision. Rutherford, 866 N.E.2d at 873. We also

       understand and recognize the unique perspective a trial court brings to its

       sentencing decisions. Id. “Additionally, a defendant bears the burden of

       persuading the appellate court that his or her sentence is inappropriate.” Id.


       Court of Appeals of Indiana | Memorandum Decision 69A05-1611-CR-2661 | August 10, 2017   Page 9 of 12
[16]   The principal role of Rule 7(B) 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.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008). We “should focus on the forest—the aggregate sentence—rather than

       the trees—consecutive or concurrent, number of counts, or length of the

       sentence on any individual count.” Id. Whether a sentence is inappropriate

       ultimately turns on the culpability of the defendant, the severity of the crime,

       the damage done to others, and a myriad other factors that come to light in a

       given case. Id. at 1224. When reviewing the appropriateness of a sentence

       under Rule 7(B), we may consider all aspects of the penal consequences

       imposed by the trial court in sentencing the defendant, including whether a

       portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,

       1025 (Ind. 2010).


[17]   The advisory sentence is the starting point to determine the appropriateness of

       the sentence. See Anglemyer, 868 N.E.2d at 494. Pursuant to Indiana Code

       Section 35-50-2-4.5, a conviction of a Level 2 felony is punishable by ten to

       thirty years in prison, with an advisory sentence of seventeen and one-half

       years. Norman’s sentence was above the advisory but below the maximum

       sentence available. The trial court also suspended five years of his sentence to

       probation.


[18]   In regard to the nature of the offense, Mann and Officer Back went to

       Norman’s residence to conduct a routine probation visit. When Norman finally

       Court of Appeals of Indiana | Memorandum Decision 69A05-1611-CR-2661 | August 10, 2017   Page 10 of 12
       answered the door, Officer Back immediately observed several containers of

       alcohol, which prompted a more extensive search. Mann discovered 12.59

       grams of methamphetamine and a scale with residue similar in appearance to

       methamphetamine. The amount of methamphetamine equaled approximately

       125 individual uses and was worth over $1,200. Officers also found $8,500 in

       cash. The evidence most favorable to the verdict indicates that Norman was

       engaged in a significant drug dealing operation. Norman has not persuaded us

       that the nature of his offense warrants a revised sentence.


[19]   As for the character of the offender, Norman argues that, although he has a

       criminal history, most of his convictions stem from his addiction to alcohol and

       drugs. Norman has misdemeanor convictions for resisting law enforcement,

       operating a vehicle while intoxicated endangering a person, animals running at

       large, utility tampering, and public intoxication. Norman also has been

       convicted of felony operating a vehicle while intoxicated and operating a

       vehicle as a habitual traffic violator. He was on probation at the time he

       committed the current offense, and he has had numerous probation violations

       in the past. Not only did he violate probation with the current offense, but

       officers also found alcohol in his home, and he tested positive for

       methamphetamine.


[20]   We also consider Norman’s history of alcohol and drug use. Although we

       recognize that a history of substance abuse may be a mitigating circumstance,

       where a defendant is aware of a substance abuse problem but has not taken

       appropriate steps to treat it, substance abuse does not weigh in favor of a lesser

       Court of Appeals of Indiana | Memorandum Decision 69A05-1611-CR-2661 | August 10, 2017   Page 11 of 12
       sentence. See Marley v. State, 17 N.E.3d 335, 341 (Ind. Ct. App. 2014), trans.

       denied; Hape, 903 N.E.2d at 1002 (Ind. Ct. App. 2009); Bryant v. State, 802

       N.E.2d 486, 501 (Ind. Ct. App. 2004), trans. denied; Bennett, 787 N.E.2d at 948.

       Norman only contends that he is struggling with a “treatable problem.”

       Appellant’s Br. p. 30. However, he has been convicted of several alcohol and

       drug related offenses and has only attended court-ordered treatment five or six

       years prior to the current offense. Norman has not shown any initiative in

       seeking treatment for his substance abuse issues.


[21]   Given the nature of the offense and Norman’s character, we are not persuaded

       that the sentence imposed was inappropriate.


                                                 Conclusion
[22]   The trial court did not abuse its discretion when it allowed the State to question

       Norman about his missing cell phone. The State presented sufficient evidence

       to support Norman’s conviction for Level 2 felony possession of

       methamphetamine with the intent to deliver, and Norman has failed to show

       that the sentence imposed was inappropriate. We affirm.


[23]   Affirmed.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 69A05-1611-CR-2661 | August 10, 2017   Page 12 of 12
