MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                         Apr 15 2020, 7:35 am
court except for the purpose of establishing
                                                                      CLERK
the defense of res judicata, collateral                           Indiana Supreme Court
                                                                     Court of Appeals
estoppel, or the law of the case.                                      and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Mark A. Kiesler                                           Curtis T. Hill, Jr.
New Albany, Indiana                                       Attorney General of Indiana
                                                          Courtney Staton
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Derek J. Tanksley,                                        April 15, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2539
        v.                                                Appeal from the Washington
                                                          Superior Court
State of Indiana,                                         The Honorable Frank Newkirk,
Appellee-Plaintiff.                                       Jr., Judge
                                                          Trial Court Cause No.
                                                          88C01-1901-F6-114



Tavitas, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2539 | April 15, 2020            Page 1 of 20
                                              Case Summary
[1]   Derek J. Tanksley appeals his convictions and sentence for possession of

      methamphetamine, a Level 6 felony, and possession of paraphernalia, a Class C

      misdemeanor. We affirm.


                                                     Issues
[2]   Tanksley raises three issues on appeal, which we restate as follows:


              I.       Whether the trial court abused its discretion in admitting
                       Tanksley’s Facebook communications into evidence.


              II.      Whether the State presented sufficient evidence that
                       Tanksley constructively possessed methamphetamine and
                       paraphernalia.


              III.     Whether Tanksley’s sentence is inappropriate in light of
                       the nature of the offenses and his character.


                                                      Facts
[3]   In January 2019, Glenda Mousty informed Officer James Moore of the Salem

      Police Department that Steven Brown intended, on January 25, 2019, to

      transport narcotics from Indianapolis “[to] bring back to [sell in] Salem[.]” 1 Tr.

      Vol. II p. 182. Mousty reported that Brown: (1) had a suspended driver’s




      1
       The record reveals that, by his own admission, Officer Moore improperly characterized Mousty as a
      “confidential informant” in his police report, when Mousty was more appropriately described as a
      “concerned citizen.” Tr. Vol. II p. 183.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2539 | April 15, 2020               Page 2 of 20
      license; (2) would be driving a white, two-door convertible with a black top; (3)

      would be transporting methamphetamine in a black bag that Brown kept under

      a seat; and (4) would likely have a concealed weapon under his seat. Mousty

      also provided Brown’s date of birth.


[4]   On January 23, 2019, Officer Moore processed Brown’s name and date of birth

      “through the Washington County Dispatch” and confirmed that a Steven

      Brown with the same date of birth had a suspended driver’s license. Id. at 43.

      Officer Moore also viewed Brown’s photograph in the Bureau of Motor

      Vehicles (“BMV”) records.


[5]   On January 25, 2019, Officer Moore and Officer Chad Webb, 2 who was on

      duty with his K-9 partner, had just “got[ten] off a detail [involving] a possible

      drunk driver.” Id. at 28. The officers were parked in their respective squad cars

      and conversing in a parking lot. As the officers spoke, Officer Moore observed

      a white Chrysler Sebring convertible that matched the description provided by

      Mousty “on Jackson Street traveling west[.]” Id. at 184-85.


[6]   Officer Moore entered his squad car, drove a short distance, and repositioned

      his squad car to get another look at the vehicle. “Using [his] vehicle

      headlights[,] the lamp, [and] streetlights[,]” Officer Moore recognized Brown as

      the driver. Id. at 187. Officer Moore “ran the vehicle’s registration” and waited




      2
          Officer Webb has since attained the rank of Captain.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2539 | April 15, 2020   Page 3 of 20
      for Officer Webb to pull up behind him. The officers then initiated a traffic stop

      at the intersection of Fair Street and Old State Road 60. 3 Id. at 188.


[7]   Brown and four passengers, including Tanksley, were in the vehicle. Tanksley

      was seated in the front passenger seat. Melissa Livingston, Charles Glenn, and

      Tanksley’s ex-wife, Rosetta Simpson, were in the back seat. Officers Moore

      and Webb approached the vehicle together. On the driver’s side of the vehicle,

      Officer Moore asked for Brown’s driver’s license and registration. Brown

      “fidget[ed] and would not make eye contact with [Officer Moore].” Id. at 189.

      Tanksley immediately asked “why [the officers] stopped [ ] Brown” and “[h]ow

      [the officers] knew that [ ] Brown had a suspended license.” Id. at 190.


[8]   Officer Moore also asked for Tanksley’s identification, which Tanksley gave to

      Officer Webb. Officer Moore checked Brown’s and Tanksley’s driver’s licenses

      against BMV records from his squad car 4 and determined that Brown and

      Tanksley had suspended driver’s licenses. In the meantime, Officer Webb

      observed that all of the occupants of the vehicle fidgeted and moved around

      excessively. Officer Webb relayed his observations to Officer Moore.


[9]   Officer Moore approached the vehicle and, concerned by the occupants’

      excessive movements and Mousty’s tip regarding a potential weapon in the

      vehicle, “pulled everyone out of the vehicle.” Id. at 191. While all stood in




      3
          The convertible was not registered to Brown or any of the occupants.
      4
          None of the remaining passengers carried personal identification.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2539 | April 15, 2020   Page 4 of 20
       front of his squad car, Officer Moore asked for the back seat passengers’

       respective dates of birth. Contemporaneously, based on his observations of the

       car occupants’ conduct, Officer Webb decided to conduct an open air sniff with

       his canine partner. 5 The canine officer alerted at the trunk of the vehicle.


[10]   Brown and Tanksley became agitated, “got very irate[,]” “rowdy[,]” and

       “rais[ed] their voice[s].” Id. at 192. On learning that the canine officer alerted

       on the vehicle, Tanksley stated that “the dogs are trained to hit on every

       vehicle.” Id. at 212. Officers Webb and Moore handcuffed Brown and

       Tanksley and requested backup. Officer Moore placed Brown in his squad car,

       while Officer Webb stood nearby with Tanksley and the other passengers.


[11]   Officer Moore initiated a search of the vehicle based on the canine officer’s

       alert. The search yielded: (1) a blue and black bag under the driver’s seat that

       contained two glass pipes with white residue, a wooden pipe, and a small

       digital scale; (2) a pack of cigarettes by the speedometer with a clear baggie

       containing 0.03 grams of methamphetamine tucked into the outer cellophane

       sleeve; (3) a syringe tucked under the back seat; and (4) two syringes tucked

       between the back seat and the back seat head rest.” 6 Id. at 195.




       5
        Officer Webb’s canine partner, Zuma, is trained to detect methamphetamine, heroin, cocaine, and
       marijuana odors.
       6
         Investigators did not recover any narcotics from the trunk of the vehicle. Officer Webb later testified that
       this may have resulted from changed wind direction, potential drug odors on the contents of the trunk, or if—
       perhaps—the person who closed the trunk had drug residue on his or her hands.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2539 | April 15, 2020                   Page 5 of 20
[12]   Subsequently, a search at the jail yielded a distinctive digital scale, bearing the

       name of rap musician Snoop Dogg, on Tanksley’s person. Also, pursuant to a

       search warrant, Captain Webb obtained access to Tanksley’s Facebook

       account, including Tanksley’s Facebook communications with the various

       occupants of the vehicle in the twenty-four to thirty-six-hour period before

       Tanksley’s arrest.


[13]   On January 28, 2019, the State charged Tanksley with possession of

       methamphetamine, a Level 6 felony; the State also alleged that Tanksley was

       an habitual offender. On March 20, 2019, and March 22, 2019, respectively,

       the State charged Tanksley with possession of a syringe, a Level 6 felony, and

       possession of paraphernalia, a Class C misdemeanor. 7 On March 29, 2019,

       Tanksley filed a motion in limine to exclude Indiana Evidence Rule 404(B)

       evidence relating to Tanksley’s Facebook communications; 8 the trial court

       denied the motion in limine.


[14]   Tanksley was tried by a jury on August 14, 2019. Officers Moore and Webb

       testified to the foregoing facts. In its case-in-chief, the State moved to introduce




       7
         The charging information alleging possession of paraphernalia provides that Tanksley “did knowingly or
       intentionally possess an instrument, device, or object, to-wit: digital scales, glass pipes, and wooden pipe[.]”
       App. Vol. II p. 54.
       8
         Tanksley also filed a motion in limine concerning the digital scale that was recovered from his person and
       the field testing performed thereon. The trial court denied Tanksley’s motion in limine regarding the fact that
       the digital scale was seized, but granted the motion in limine as follows: (1) the digital scale recovered from
       Tanksley’s person was “not to be described as paraphernalia”; and (2) the result of the field testing was
       inadmissible. See Conf. App. Vol. III p. 44.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2539 | April 15, 2020                       Page 6 of 20
Tanksley’s Facebook communications. Tanksley objected that the Facebook

communications were irrelevant and prejudicial and argued as follows:


           . . . [T]he Facebook messages are not relevant to whether or not
           my client was, in fact, in possession of methamphetamine,
           syringes, or other paraphernalia on January 25, 2019. To put my
           client into the drug trader boat is, majorative [sic 9], is not
           probative, it is prejudicial. I believe that these messages are not
           at all related to the [methamphetamine] that was found on
           January 25, 2019. Relevance is very broad . . . , but these
           conversations have nothing to do with whether or not he actually
           possessed these things in this place at this time. It is an attempt
           to paint my client with a drug seller brush without any proof that
           he was selling drugs.


Id. at 220. The State responded:


           These are messages from the 24th and the 25th of January. [ ]
           [I]f you talk about methamphetamine all night, and you talk
           about going to Indianapolis. You set up a ride with the person
           who was driving the car. You have Facebook messages about
           buying methamphetamine and selling methamphetamine with
           one of the people [] in the back seat. It’s the very definition of
           relevance. Is it prejudicial? Absolutely its [sic] prejudicial. But
           again, it goes to the weight, not the evidence. It’s not so
           prejudicial that it should be kept out, it’s certainly not
           inflammatory. These are the defendant’s statements made
           contemporaneously within the twenty-four to thirty-six hours of
           this traffic stop.




9
    We believe the court reporter intended to use the word “pejorative[.]”


Court of Appeals of Indiana | Memorandum Decision 19A-CR-2539 | April 15, 2020   Page 7 of 20
       Id. at 221. The trial court admitted the Facebook communications into

       evidence.


[15]   Officer Webb then testified in the following colloquy, that—based upon his

       training and experience—Tanksley’s Facebook communications in the twenty-

       four to thirty-six-hour period preceding the arrest, which included references to

       “grams, ounces, [and] amounts of money[,]” pertained to the negotiation,

       bidding, possession, and/or sale of methamphetamine, id. at 240:


               [Officer Webb]: Well, on the first page, a guy makes a comment
               to Mr. Tanksley about [“]damn look at you, you’re a regular ice
               cream Escobar.[”] Ice cream is a slang term for
               methamphetamines. Escobar was a drug cartel. I mean, it’s
               saying he’s trying to become a drug dealer.


                                                     *****


               [Officer Webb]: [ ] On this page, [Tanksley] says I’ve got seven
               hundred for two. Which in my training and experience, it’s
               seven hundred dollars for two ounces.


                                                     *****


               [Officer Webb]: And then [Tanksley]’s flashing money on the
               next page.


                                                       *****


               [Officer Webb]: They talk about selling drugs, they’re negotiating
               prices, on where to meet and where to go pick them up. [ ]


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2539 | April 15, 2020   Page 8 of 20
       Id. at 218-19. At the close of the evidence, the jury found Tanksley guilty of

       possession of methamphetamine and possession of paraphernalia, and not

       guilty of possession of a syringe. Tanksley subsequently admitted to being an

       habitual offender.


[16]   The trial court conducted Tanksley’s sentencing hearing on September 27,

       2019, and found, as aggravating factors: (1) Tanksley’s criminal history; (2) his

       prior failures to comply with probation and/or pretrial release; and (3) his lack

       of remorse. The trial court found, as a mitigating factor, that no serious harm

       to persons or property resulted from Tanksley’s crimes. The trial court imposed

       the following concurrent sentences: two years executed in the Department of

       Correction (“DOC”) for possession of methamphetamine; and sixty days

       executed for possession of paraphernalia. The trial court enhanced Tanksley’s

       sentence by four years for the habitual offender adjudication, resulting in an

       aggregate sentence of six years. 10 Tanksley now appeals.


                                                          Analysis
                                               I.       Admission of Evidence

[17]   Tanksley argues that the trial court abused its discretion when it admitted the

       “inadmissible and prejudicial” Facebook messages, which, Tanksley contends,

       constituted improper Evidence Rule 404(B) evidence of other acts and “merely




       10
            Tanksley received 160 days of jail time credit.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2539 | April 15, 2020   Page 9 of 20
       show[ed] Tanksley’s propensity . . . to be involved with illegal narcotics.”

       Tanksley’s Br. pp. 7, 8. This issue is waived.


[18]   At trial, Tanksley did not object to the admission of the Facebook

       communications on Evidence Rule 404(B) grounds; rather, he challenged the

       Facebook communications as irrelevant and overly prejudicial, pursuant to

       Evidence Rule 403. See Halliburton v. State, 1 N.E.3d 670, 683 (Ind. 2013)

       (deeming waived Halliburton’s claim that the trial court abused its discretion by

       admitting improper Evidence Rule 404(B) evidence of a prior burglary when,

       “at trial[,] Halliburton objected to testimony concerning the prior burglary on

       [Evidence Rule 403] grounds”); see Turner v. State, 953 N.E.2d 1039, 1045 (Ind.

       2011) (holding “a defendant may not argue one ground for objection at trial and

       then raise new grounds on appeal”). Tanksley has waived this claim of error

       for appellate review. 11


[19]   Waiver notwithstanding, Tanksley also argues that admission of the Rule

       404(B) evidence was error because Tanksley did not allege any contrary intent

       at trial. A trial court’s ruling on the admission of evidence is generally accorded

       a great deal of deference on appeal. Hall v. State, 36 N.E.3d 459, 466 (Ind.

       2015), reh’g denied. We do not reweigh the evidence; rather, we consider only

       evidence that is either favorable to the ruling or unrefuted and favorable to the

       defendant. Beasley v. State, 46 N.E.3d 1232, 1235 (Ind. 2016). We will not




       11
            Tanksley does not allege fundamental error or present a cogent fundamental error argument in his brief.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2539 | April 15, 2020                    Page 10 of 20
       reverse an error in the admission of evidence if the error was harmless. Messel v.

       State, 80 N.E.3d 230 (Ind. Ct. App. 2017).


[20]   Evidence Rule 404(B) provides:


               (b) Crimes, Wrongs, or Other Acts.


                        (1) Prohibited Uses. 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.


                        (2) Permitted Uses; Notice in a Criminal Case. This evidence
                        may be admissible for another purpose, such as proving
                        motive, opportunity, intent, preparation, plan, knowledge,
                        identity, absence of mistake, or lack of accident. [ ]


[21]   Tanksley cites Wickizer v. State, 626 N.E.2d 795, 799 (Ind. 1993), for the

       proposition that Indiana law does not “authorize the general use of prior

       conduct evidence as proof of the general or specific intent element in criminal

       offenses” unless “a defendant goes beyond merely denying the charged

       culpability and affirmatively presents a claim of particular contrary intent.”


[22]   Wickizer is inapposite here. Tanksley disregards the fact that Rule 404(B)

       expressly permits the admission of evidence of defendant’s crimes, wrongs, or

       other acts for other purposes, including to prove a defendant’s preparation or

       plan. See Evid. R. 404(B)(2). Such is the case here, where Tanksley’s Facebook

       communications illustrated the travel, bidding, and negotiation components of



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2539 | April 15, 2020   Page 11 of 20
       his efforts to acquire the methamphetamine. The trial court did not abuse its

       discretion in admitting the Facebook communications.


                                          II.     Sufficiency of Evidence

[23]   Next, Tanksley argues that the State failed to prove that Tanksley had the

       requisite intent to possess the methamphetamine and paraphernalia that were

       found in the vehicle. When there is a challenge to the sufficiency of the

       evidence, “[w]e neither reweigh evidence nor judge witness credibility.” Gibson

       v. State, 51 N.E.3d 204, 210 (Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78,

       84 (Ind. 1985), cert. denied). Instead, “we ‘consider only that evidence most

       favorable to the judgment together with all reasonable inferences drawn

       therefrom.’” Id. “We will affirm the judgment if it is supported by ‘substantial

       evidence of probative value even if there is some conflict in that evidence.’” Id.;

       see also McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018) (holding that, even

       though there was conflicting evidence, it was “beside the point” because that

       argument “misapprehend[s] our limited role as a reviewing court”). Further,

       “[w]e will affirm the conviction unless no reasonable fact-finder could find the

       elements of the crime proven beyond a reasonable doubt.” Love v. State, 73

       N.E.3d 693, 696 (Ind. 2017) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind.

       2007)).


[24]   Tanksley contends that the State presented insufficient evidence to prove that

       he intended to maintain dominion and control over the methamphetamine and




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2539 | April 15, 2020   Page 12 of 20
       paraphernalia that were found in the vehicle. 12 To prove a defendant possessed

       contraband, the State is required to prove either actual or constructive

       possession. Eckrich v. State, 73 N.E.3d 744, 746 (Ind. Ct. App. 2017).


                  Actual possession occurs when a person has direct physical
                  control over an item. Constructive possession occurs when a
                  person has (1) the capability to maintain dominion and control
                  over the item; and (2) the intent to maintain dominion and
                  control over it. When a person has exclusive possession of the
                  premises in which contraband is found, he is assumed to know
                  about the presence of the contraband and be capable of
                  controlling it. However, when possession of the premises is not
                  exclusive, the State must show additional circumstances that
                  indicate the defendant’s knowledge of the presence of the
                  contraband and ability to control it.


       Bailey v. State, 131 N.E.3d 665, 683 (Ind. Ct. App. 2019) (citations and

       quotation marks omitted), trans. denied. “Such additional circumstances include

       incriminating statements by the defendant, attempted flight, a drug

       manufacturing setting, proximity of the defendant to the drugs, drugs being found in

       plain view, and the location of the drugs in proximity to items owned by the

       defendant.” Id. (emphasis added).


[25]   This is a case of constructive possession. The State presented the following

       evidence at trial to prove Tanksley’s knowledge of the methamphetamine and

       paraphernalia and Tanksley’s control of the contraband. Officer Moore’s




       12
            Tanksley does not challenge the State’s proof of any other element of the offenses.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2539 | April 15, 2020             Page 13 of 20
       search of the vehicle yielded methamphetamine on the dashboard near the

       speedometer and a bag containing paraphernalia under the driver’s seat. At the

       time of the traffic stop, Tanksley was seated in the front passenger seat of the

       vehicle with immediate access to the contraband. The State, thus, presented

       into evidence “additional circumstances that indicated [Tanksley]’s knowledge

       of the presence of the contraband and ability to control it,” namely, that the

       methamphetamine was in plain view and that the bag containing the

       paraphernalia was in close physical proximity to Tanksley. Id. Moreover, (1)

       the discovery of a second digital scale on Tanksley’s person; (2) Tanksley’s

       incriminating Facebook communications in the twenty-four to thirty-six-hour

       period preceding his arrest; and (3) Captain Webb’s testimony that Tanksley’s

       Facebook communications pertained to the sale and possession of

       methamphetamine further support the inference that Tanksley had the intent

       and capability to maintain dominion and control over the methamphetamine

       and paraphernalia that were found in the vehicle.


[26]   Based on the foregoing, a jury could reasonably infer Tanksley’s capability and

       intent to maintain possession and control of the methamphetamine and

       paraphernalia that were found in the vehicle. See Bailey v. State, 131 N.E.3d at

       684 (finding sufficient evidence that defendant constructively possessed

       controlled substances found in areas in which defendant did not have exclusive

       access); see Gray v. State, 957 N.E.2d 171, 176 (Ind. 2011) (finding sufficient

       evidence that defendant constructively possessed marijuana found under a




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2539 | April 15, 2020   Page 14 of 20
       coffee table in a common room). Sufficient evidence exists to support

       Tanksley’s convictions.


                                     III.     Inappropriateness of Sentence

[27]   Lastly, Tanksley argues that his six-year executed sentence is inappropriate in

       light of the nature of the offenses and his character. Indiana Appellate Rule

       7(B) provides that this Court may revise a sentence authorized by statute 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.” The defendant bears the burden to persuade this court that his or her

       sentence is inappropriate. Wilson v. State, 966 N.E.2d 1259, 1266 (Ind. Ct. App.

       2012) (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)), trans. denied.


[28]   In Indiana, trial courts can tailor an appropriate sentence to the circumstances

       presented; the trial court’s judgment receives “considerable deference.” Sanders

       v. State, 71 N.E.3d 839, 844 (Ind. 2017) (quoting Cardwell v. State, 895 N.E.2d

       1219, 1222 (Ind. 2008)). 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 question is whether the sentence imposed is

       inappropriate.” Sanders, 71 N.E.3d at 844 (citing King v. State, 894 N.E.2d 265,

       268 (Ind. Ct. App. 2008)).


[29]   When determining whether a sentence is inappropriate, the advisory sentence is

       the starting point the legislature has selected as an appropriate sentence for the

       crime committed. Childress, 848 N.E.2d at 1081. Tanksley was convicted of

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2539 | April 15, 2020   Page 15 of 20
       possession of methamphetamine, a Level 6 felony. The sentencing range for a

       Level 6 felony is six months to two and one-half years, with an advisory

       sentence of one year. See Ind. Code § 35-50-2-7. Tanksley was also convicted

       of possession of paraphernalia, a Class C misdemeanor. The sentencing range

       for a Class C misdemeanor is a fixed term of not more than sixty days. See I.C.

       § 35-50-3-2.


[30]   Additionally, Tanksley was found to be an habitual offender. “The court shall

       sentence a person found to be a[n] habitual offender to an additional term that

       is between: . . . two (2) years and six (6) years, for a person convicted of a Level

       5 or Level 6 felony.” I.C. § 35-50-2-8. Tanksley, thus, faced a potential

       sentence of eight and one-half years for his Level 6 felony conviction, after the

       habitual offender enhancement attached, and a potential sentence of sixty days

       for his Class C misdemeanor conviction. Here, however, the trial court

       imposed a two-year sentence for Tanksley’s Level 6 felony conviction,

       enhanced by a four-year habitual offender enhancement, for an aggregate

       sentence of six years. The trial court also imposed a concurrent sixty-day

       sentence for the Class C misdemeanor.


[31]   Regarding the nature of the offenses, Tanksley’s Facebook communications

       establish that he acquired a quantity of methamphetamine that he intended to

       sell. At the time of his arrest, Tanksley constructively possessed the

       methamphetamine and paraphernalia, including a digital scale, typically used

       to measure narcotics in grams and ounces for sale, and a wooden pipe and two

       glass pipes bearing white residue, typically used to ingest or “test[ ] the strength,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2539 | April 15, 2020   Page 16 of 20
       effectiveness or purity” of narcotics. App. Vol. II p. 78. Tanskley was also

       found in actual possession of a second digital scale.



[32]   Regarding Tanksley’s character, the following facts—as found by the trial

       court—provide considerable insight into his character: (1) Tanksley’s prior

       criminal history; (2) prior failures to comply with probation and with terms of

       pretrial release; and (3) lack of remorse. Tanskley has had numerous contacts

       with the criminal justice system. As a juvenile, he was adjudicated as a

       delinquent multiple times for offenses that, if committed by an adult, would

       constitute visiting a common nuisance, a Class B misdemeanor (2001); illegal

       possession of alcohol, a Class B misdemeanor (2002); burglary, a Class B felony

       (2002); and three counts of theft, Class D felonies (2003). See Conf. App. Vol.

       III p. 147 (stating that, as a juvenile, Tanksley “was placed on informal

       adjustment, formal probation, [ ] in detention, [ ] in residential placement [] and

       sentenced to Southwest Regional Youth Village”). Each time, Tanksley either

       failed to successfully complete a court-ordered teen alcohol and drug education

       program, “his probation was either revoked[,] or his probation was closed as

       unsuccessful.” Id.


[33]   As an adult, Tanksley amassed four felony convictions and three misdemeanor

       convictions before the instant offenses. Tanksley’s adult felony convictions

       include convictions for possession of a controlled substance (2012), receiving

       stolen property (2012), and dealing in a synthetic drug with intent to deliver

       (2014), as Class D felonies; and possession of a synthetic drug with a prior


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2539 | April 15, 2020   Page 17 of 20
       conviction, a Level 6 felony (2016). His prior misdemeanor convictions are for

       public intoxication, a Class B misdemeanor (2010); possession of paraphernalia

       (2014), possession of a synthetic drug (2016), resisting law enforcement (2016),

       and invasion of privacy in violation of an order for protection (2018), as Class

       A misdemeanors. After Tanksley was convicted of the instant offenses, he was

       convicted of failure to appear, a Level 6 felony, and, once again, Tanksley

       admitted to being an habitual offender.


[34]   The significance of criminal history in assessing a defendant’s character is based

       upon the gravity, nature, and number of prior offenses in relation to the current

       offense. Boling v. State, 982 N.E.2d 1055, 1060 (Ind. Ct. App. 2013). Even a

       minor criminal history is a poor reflection of a defendant’s character. Moss v.

       State, 13 N.E.3d 440, 448 (Ind. Ct. App. 2014).


[35]   Despite numerous contacts with the justice system starting in 2005, Tanksley

       remains undeterred from criminal activity. The pre-sentence investigation

       report (“PSI”) reveals that Tanskley’s criminal history is replete with probation

       violations, including commission of new offenses while on probation and

       positive drug screens; violation of terms of home detention 13 and/or day

       reporting; failure to complete court-ordered drug and alcohol programming;

       and multiple failures to appear for court proceedings.




       13
            Tanksley successfully completed home detention but failed to pay the associated fees.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2539 | April 15, 2020               Page 18 of 20
[36]   The instant convictions stem from drug offenses, and Tanksley has a long

       history of unchecked substance abuse. According to the PSI, Tanksley reported

       that he has used marijuana consistently since he was twelve; has been drinking

       alcohol since age thirteen; and has “use[d] methamphetamine for one to two

       weeks out of [each] month” since he was twenty. Conf. App. Vol. III p. 151.

       Tanksley also reported recreational use of cocaine, spice, Percocet, and

       mushrooms. Although Tanksley readily admits to having a substance abuse

       problem, he has failed to pursue treatment or to take full advantage of court-

       ordered drug programming. 14 We cannot say that Tanksley’s sentence is

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


                                                    Conclusion
[37]   Tanksley’s challenge to the admission of the Facebook communications on

       Evidence Rule 404(B) grounds was waived. Waiver notwithstanding, the trial

       court did not otherwise abuse its discretion in admitting the Facebook

       communications. Sufficient evidence exists to support Tanksley’s convictions.

       Tanksley’s sentence is not inappropriate in light of the nature of the offenses or

       his character. We affirm.




       14
          According to the PSI, Tanksley reported that he has held two jobs in his adult life, one of which he held
       for ninety days until he “just stopped going to work.” Conf. App. Vol. III p. 149. Approximately eight and
       one-half years before that job, Tanksley held his only other job for nearly six months, until he was fired for
       smoking marijuana. Tanksley reported that, in the intervening years, he has relied on his parents and
       grandparents to support him financially; has worked odd jobs in order to generate money to buy drugs; and
       has dealt drugs.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2539 | April 15, 2020                    Page 19 of 20
[38]   Affirmed.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2539 | April 15, 2020   Page 20 of 20
