MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                     Feb 12 2018, 9:28 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
Daniel J. Vanderpool                                     Curtis T. Hill, Jr.
Vanderpool Law Firm, PC                                  Attorney General of Indiana
Warsaw, Indiana
                                                         Angela N. Sanchez
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kristina L. Brown,                                       February 12, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         85A04-1708-CR-1872
        v.                                               Appeal from the
                                                         Wabash Circuit Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Robert R. McCallen III, Judge
                                                         Trial Court Cause No.
                                                         85C01-1511-F4-1024



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 85A04-1708-CR-1872 | February 12, 2018           Page 1 of 8
[1]   Following her convictions on two counts of dealing in cocaine, each as a Level

      4 felony,1 and the trial court’s imposition of an aggregate six-year executed

      sentence, Kristina Brown (“Brown”) appeals, raising the following restated

      issues for our review:


                 I.       Whether the trial court abused its discretion when it
                          denied her motion for separate trials for each of her
                          counts; and


                 II.      Whether her sentence is inappropriate in light of the
                          nature of the offense and the character of the offender.


[2]   We affirm.


                                      Facts and Procedural History
[3]   D.J. had a history of criminal offenses and worked as a confidential informant

      with the Wabash County Drug Task Force (“DTF”). On July 31, 2015, he

      contacted the DTF, telling the officers that he had arranged a drug buy for crack

      cocaine from a person identified as J.G. After finding that J.G. was not at

      home, D.J. and his DTF contact decided to go to the home of J.G.’s supplier,

      Brown.


[4]   Upon their arrival, Brown was sitting outside on the porch, and D.J. decided to

      attempt a purchase from her directly. After a brief conversation, D.J. believed




      1
          See Ind. Code § 35-48-4-1(c)(2).


      Court of Appeals of Indiana | Memorandum Decision 85A04-1708-CR-1872 | February 12, 2018   Page 2 of 8
      that he had talked Brown into the sale. Knowing that she would not make a

      sale with his friend there, D.J. took the contact home and returned to Brown’s

      home. She got into D.J.’s car, and they drove around the block. Brown gave

      D.J. a small package wrapped in thin paper, and D.J. gave her $100.00. He

      then dropped her off at her house and went to another location for a post-buy

      search and to give the officers of the DTF the package he had received. The

      package was found to contain cocaine of less than one gram.


[5]   About two weeks after the first transaction, D.J. again called Brown. He asked

      her whether she had more cocaine, and she replied that she did. D.J. then

      called the DTF, who arranged for the pre-buy search. Once again, after the

      search, D.J. went to Brown’s home. On this occasion, two of Brown’s children

      were outside. When D.J. drove up, Brown came directly to his car, removed a

      small package from her bra and gave the package to D.J. D.J. gave Brown

      $100.00 and left. He then met with the officers of the DTF and gave them the

      package he had received from Brown. The package was found to contain

      cocaine of less than one gram.


[6]   Brown was charged with two counts of Level 4 felony dealing in cocaine. Prior

      to trial, Brown filed a Motion to Separate the Trials of the two counts,

      contending that the offenses were not part of the same scheme or plan and that

      separate trials were necessary for a fair trial on the charges. At the hearing on

      her motion, Brown argued that the charges were joined simply because they

      were of the same or similar character. The State responded that the charges

      were not joined for trial due to their similarity, but because they were a part of a

      Court of Appeals of Indiana | Memorandum Decision 85A04-1708-CR-1872 | February 12, 2018   Page 3 of 8
      larger effort to show that the Brown dealt drugs, and were, therefore,

      connected. The trial court denied Brown’s Motion for Separate Trials.


[7]   Brown was convicted of two counts of Level 4 felony dealing in cocaine, and a

      pre-sentence investigation report was submitted to the trial court. It revealed

      that Brown had four prior A misdemeanor convictions as an adult. One of

      those was for possession of marijuana, and the rest were for driving while

      suspended. In addition, while the case was pending, she was also convicted of

      a Class B misdemeanor offense, failing to stop after an accident.


[8]   At sentencing, the trial court found that the aggravating circumstances

      outweighed any mitigating circumstances. On Count I, it ordered that Brown

      be incarcerated for eight years, with two years suspended. On Count II, the

      trial court ordered that Brown be incarcerated for six years, with no time

      suspended. The sentences were ordered to be served concurrently for an

      aggregate six-year executed sentence. Brown now appeals.


                                     Discussion and Decision

                       I.      Denial of Motion for Separate Trials
[9]   Indiana Code section 35-34-1-9(a) provides that two or more offenses, stated in

      separate counts, may be joined in the same indictment or information 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.” However,

      Indiana Code section 35-34-1-11(a) “provides defendants with the right to

      Court of Appeals of Indiana | Memorandum Decision 85A04-1708-CR-1872 | February 12, 2018   Page 4 of 8
       severance where ‘two (2) or more offenses have been joined for trial in the same

       indictment or information solely on the ground that they are of the same or

       similar character. . . .’” Craig v. State, 730 N.E.2d 1262, 1265 (Ind. 2000).


[10]   “As the statute explicitly states, severance is required as a matter of right under

       this provision only if the sole ground for joining is that the offenses are of the

       same or similar character.” Id. (citing Ben-Yisrayl v. State, 690 N.E.2d 1141,

       1145 (Ind. 1997), cert. denied, 525 U.S. 1108 (1999)). “Offenses may be

       sufficiently ‘connected together’ to justify joinder under subsection 9(a)(2) ‘if the

       State can establish that a common modus operandi linked the crimes and that the

       same motive induced that criminal behavior.’” Id. (emphasis in original)

       (citations omitted). “Because the trial court has no discretion when severing

       charges that were joined solely on the ground that they were of the same or

       similar character, we review the trial court’s decision employing a de novo

       standard.” Booker v. State, 790 N.E.2d 491, 494 (Ind. Ct. App. 2003).


[11]   Here, the two charges were not joined solely because they were of the same

       character. To the contrary, the evidence presented demonstrated striking

       similarities beyond the mere “same or similar character” of Brown’s offenses.

       First, the two offenses were close in time occurring two weeks apart. Second,

       on both occasions, D.J. contacted Brown at the same location, namely, her

       residence. Third, both offenses involved the sale of the same drug (crack

       cocaine), the same amount (less than one gram), and the same price (one

       hundred dollars ($100.00)). Fourth, on both occasions, the illegal drugs were



       Court of Appeals of Indiana | Memorandum Decision 85A04-1708-CR-1872 | February 12, 2018   Page 5 of 8
       on Brown’s person or in close proximity. The trial court did not abuse its

       discretion in denying Brown’s motion for separate trials.


                                              II. Sentencing
[12]   Brown argues that her eight-year aggregate sentence is inappropriate in light of

       the nature of the offense and her character. Pursuant to Indiana Appellate Rule

       7(B), this Court “may revise a sentence authorized by statute 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.” Our Supreme Court has explained that the principal role of appellate

       review should be to attempt to leaven the outliers, not to achieve a perceived

       correct result in each case. Brown v. State, 52 N.E.3d 945, 954 (Ind. Ct. App.

       2016) (citing Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)), trans. denied.

       We independently examine the nature of a defendant’s offenses and his

       character under Appellate Rule 7(B) with substantial deference to the trial

       court’s sentence. Satterfield v. State, 33 N.E.3d 344, 355 (Ind. 2015). “In

       conducting our review, 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.’” Barker v. State, 994 N.E.2d 306, 315

       (Ind. Ct. App. 2013), trans. denied. The defendant bears the burden of

       persuading us that his sentence is inappropriate. Brown, 52 N.E.3d at 954.


[13]   “As to the nature of the offense, the advisory sentence is the starting point the

       legislature has selected as an appropriate sentence for the crime committed.”


       Court of Appeals of Indiana | Memorandum Decision 85A04-1708-CR-1872 | February 12, 2018   Page 6 of 8
       Kunberger v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015). Here, Brown was

       convicted of two counts of dealing in cocaine as Level 4 felonies. A Level 4

       felony is subject to a sentence between two and twelve years, with six years

       being the advisory. I.C. § 35-50-2-5.5. Brown received a sentence of eight

       years, with two years suspended to probation, for one count and six years with

       no time suspended for the other count. Her sentences were ordered to be served

       concurrently for an aggregate executed sentence of six years. Therefore, she

       received an executed term of the advisory sentence for one of her offenses and

       the opportunity to be incarcerated for no more than the advisory if she proves

       herself capable of complying with the terms of probation.


[14]   The nature of the offense is found in the details and circumstances of the

       commission of the offense and the defendant’s participation. Croy v. State, 953

       N.E.2d 660, 664 (Ind. Ct. App. 2011). Brown’s sentence is not inappropriate in

       light of her crimes. In this case, she sold crack cocaine on two occasions,

       approximately two weeks apart. Both times, the deals began at her home while

       her children were present. One of the sales occurred in a community park

       where children were likely to be present. D.J. came to Brown’s house because

       he believed that she was the cocaine supplier to the person from whom he had

       originally arranged to buy. Finally, Brown had the drugs in her possession and

       readily available for sale. Brown fails to show that the nature of her crimes

       warrant a reduction in her sentence.


[15]   “The character of the offender is found in what we learn of the offender’s life

       and conduct.” Croy, 953 N.E.2d at 664. Brown also fails to prove that her

       Court of Appeals of Indiana | Memorandum Decision 85A04-1708-CR-1872 | February 12, 2018   Page 7 of 8
       sentence is inappropriate as to her character. She has not accepted

       responsibility for her actions in this case and, to the contrary, has attempted to

       divert blame onto others for her own actions. She has also exposed her young

       children to the dangers of the drugs that she was selling from their home and in

       their presence. Brown has not shown the traits or character that warrant a

       revision of her sentence. To the contrary, Brown has a persistent history of

       criminal and delinquent conduct that has been unaffected by numerous

       opportunities for reform. Since 2002, Brown has been convicted or adjudicated

       delinquent in thirteen separate cases. As a juvenile, she was adjudicated

       delinquent for resisting law enforcement twice, possession of alcohol, disorderly

       conduct, incorrigibility, and being a runaway. She received formal and

       informal probation, intensive supervision program, and placement at the

       Indiana Girl’s School. As an adult, she has been convicted of possession of

       marijuana, driving while license suspended three times, and failure to stop after

       an accident. She was also on probation at the time she committed the crimes in

       this case, and she committed another offense while on bond awaiting trial. We

       conclude that Brown’s sentence is not inappropriate based on the nature of her

       offenses and her character.


[16]   Affirmed.


[17]   Bailey, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 85A04-1708-CR-1872 | February 12, 2018   Page 8 of 8
