Pursuant to Ind.Appellate Rule 65(D), Dec 20 2013, 6:00 am
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DONALD R. SHULER GREGORY F. ZOELLER
Barkes, Kolbus, Rife & Shuler, LLP Attorney General of Indiana
Goshen, Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
HERVEY CLANTON, )
)
Appellant-Defendant, )
)
vs. ) No. 20A05-1304-CR-194
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ELKHART CIRCUIT COURT
The Honorable Terry C. Shewmaker, Judge
Cause No. 20C01-1206-FA-34
December 20, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Hervey Clanton was convicted after a jury trial of two counts of Class A felony
dealing cocaine within one thousand feet of a family housing complex,1 one count of Class B
felony possession of a firearm by a serious violent felon,2 and three counts of Class C felony
neglect of a dependent.3 He argues on appeal there was insufficient evidence to support the
dealing in cocaine and neglect of a dependent convictions, the trial court should have
dismissed the possession of a firearm by a serious violent felon charge, and his sentence is
inappropriate.
We affirm.
FACTS AND PROCEDURAL HISTORY
Elkhart police arranged for a confidential informant to buy cocaine from Clanton.
Police gave the informant money, wired him with a recording device, and placed a
transmitter in his car. The informant met Clanton at a gas station and bought cocaine from
him while police watched. Police then arranged a second controlled purchase at the same
location, and Clanton again sold the informant cocaine. A week later, police sent the
informant to Clanton’s apartment, which was across the street from the gas station. 4 Clanton
answered his door, and the informant asked if Clanton had any “work,” which is “street
terminology” for drugs. (Tr. at 175.) Clanton said he would not have any “work” until the
1
Ind. Code § 35-48-4-2.
2
Ind. Code § 35-47-4-5.
3
Ind. Code § 35-46-1-4.
4
The parties stipulated Clanton’s apartment was in a family housing complex and Clanton sold cocaine to the
informant.
2
following day.
The next day police executed a search warrant at Clanton’s apartment. Police detained
Clanton outside the apartment. Chelsea Nussbaum, who rented the apartment, was outside
the apartment with a child, and two more children were inside the apartment. One of the
children was Clanton’s. Inside the apartment police found smoking devices with marijuana
residue, a gas mask with a bong attached, scales of the type used to weigh drugs, small
baggies of a type used to package drugs, $300 in cash, and a loaded gun.
Clanton moved to dismiss the handgun possession charge, and after his motion was
denied he admitted he committed that offense “subject to him being convicted of the
underlying offenses being the subject of this trial.” (App. at 74.) The jury then found him
guilty of the remaining charges.
Clanton was sentenced to forty-five years on each count of dealing in cocaine, to be
served concurrently. He was sentenced to six years on each of the neglect of a dependent
counts and to fifteen years for the firearms possession count, which sentences were to be
served concurrently with each other but consecutive to the cocaine sentences, for an
aggregate sentence of sixty years.
DISCUSSION AND DECISION
1. Sufficiency of Evidence
Clanton claims the State did not prove his guilt of the dealing charges because there
was insufficient evidence he was the dealer, and did not prove Class C felony neglect of a
dependent because there was insufficient evidence he delivered, financed, or manufactured
3
cocaine at the apartment. When we review a claim that a conviction is not supported by
sufficient evidence, we generally may not reweigh the evidence or question the credibility of
witnesses. Oldham v. State, 779 N.E.2d 1162, 1168 (Ind. Ct. App. 2002), trans. denied.
That is the function of the fact finder. Id. We must affirm a conviction if the finder of fact
heard evidence of probative value from which it could have inferred the defendant’s guilt
beyond a reasonable doubt. Graham v. State, 713 N.E.2d 309, 311 (Ind. Ct. App. 1999),
trans. denied. When making this determination, we consider only the evidence, and all
reasonable inferences to be drawn from that evidence, favorable to the verdict. Id.
There was ample evidence to identify Clanton as the person who sold cocaine to the
confidential informant. The uncorroborated testimony of one witness may be sufficient by
itself to sustain a conviction on appeal. Toney v. State, 715 N.E.2d 367, 369 (Ind. 1999). In
Toney, an informant identified Toney at the scene of a drug sale and again at trial. That
uncorroborated testimony alone was sufficient to sustain Toney’s conviction. Id. In addition,
Toney had the twenty dollars of “buy money” in his possession when he was arrested, and
there was no suggestion of how he otherwise acquired it. That evidence was sufficient to
support the jury’s finding of guilt. Id.
There was even more evidence to identify Clanton. The informant testified he knew
Clanton for four years before the first controlled purchase, and he identified Clanton in a
photo array. A police officer who was watching the transaction testified he saw Clanton and
he identified Clanton at trial. Another officer who observed the purchase testified he was
close enough to see Clanton’s face. The identification evidence was sufficient.
4
Clanton next argues there was insufficient evidence he committed Class C felony
neglect of a dependent because the State did not prove the situation that endangered the
dependents happened in a location where someone was delivering, financing, or
manufacturing cocaine.
Neglect of a dependent is normally a Class D felony, but it is a Class C felony if it is
committed in a location where a person is delivering, financing, or manufacturing cocaine, a
narcotic drug, or methamphetamine. Ind. Code § 35-46-1-4(b)(1)(B)(i). Clanton was
charged with a Class C felony.5
There was sufficient evidence to support the Class C felony conviction. The State
relies on that part of the definition of “manufacturing” that includes “any packaging or
repackaging of the [controlled] substance.” Ind. Code § 35-48-1-18(1). When Clanton’s
apartment was searched police found small baggies, which an officer testified were the type
used to package cocaine for sale. Police found two scales of the type used to weigh drugs.
One had white residue on it, as did a plate located nearby. An officer testified the residue
was tested, but after Clanton objected and his objection was sustained, there was no
testimony the residue was cocaine. An officer testified that before the second controlled
purchase, Clanton had been in the apartment, and he walked across the street from there to
the gas station where he sold the cocaine. That was sufficient evidence to permit the jury to
infer Clanton was packaging cocaine in the apartment.
5
He acknowledges the evidence might support a Class D felony charge.
5
2. Motion to Dismiss
We review for an abuse of discretion the denial of a motion to dismiss a criminal
charge. Haywood v. State, 875 N.E.2d 770, 772 (Ind. Ct. App. 2007). We will reverse a trial
court’s decision for an abuse of discretion where the decision is clearly against the logic and
effect of the facts and circumstances. Id. We may affirm the ruling if it is sustainable on any
basis in the record. Estrada v. State, 969 N.E.2d 1032, 1038 (Ind. Ct. App. 2012), trans.
denied.
Denial of Clanton’s motion to dismiss the handgun charge was not error. A motion to
dismiss an indictment or information must be in writing, Ind. Code § 35-34-1-8, and
Clanton’s was not. Clanton notes an individual may not be prosecuted for mere status, Klein
v. State, 698 N.E.2d 296, 300 (Ind. 1998), and argues “the only aspect of Mr. Clanton’s
possession of a handgun that made it a crime was his status as a serious violent offender.”
(Appellant’s Br. at 25.)
Clanton was not prosecuted for his status. We held in Baker v. State, 747 N.E.2d 633,
636 (Ind. Ct. App. 2001), trans. denied, that the statute prohibiting possession of a firearm by
a serious violent felon does not unconstitutionally criminalize one’s status as a serious violent
felon:
Baker is correct that an individual may not be prosecuted for mere status.
Klein v. State, 698 N.E.2d 296, 300 (Ind. 1998). In the Klein case, Klein
argued that the gang activity statute unconstitutionally penalized his status as a
gang member. Id. at 300. Our supreme court noted that membership in a
gang, by itself, did not provide the basis for prosecution for criminal gang
activity. Id. Rather, the State also had to prove that the defendant was aware
of the gang’s actual purpose. Id.
6
Here, as in Klein, Baker’s status as a serious violent offender, by itself,
did not provide the basis for his prosecution. Rather, the State had to prove
that Baker possessed a firearm. Baker’s argument must therefore fail. See
United States v. Jester, 139 F.3d 1168 (7th Cir. 1998) (rejecting an identical
challenge to 18 U.S.C. § 922(g)(1), which prohibits a convicted felon from
possessing a firearm).
We also rejected Baker’s argument the statute violated his constitutional right to bear arms.
Id. at 636-37. We decline Clanton’s invitation to revisit Baker.
Clanton distinguishes Dozier v. State, 709 N.E.2d 27, 31 (Ind. Ct. App. 1999), a
decision on which Baker was based, noting Dozier did not have a license for his gun and
Dozier was not at his home when arrested. A person may carry a handgun without being
licensed if he carries the handgun on property he rents or otherwise legally controls, Ind.
Code § 35-47-2-1, and Clanton, unlike Dozier, was at his apartment and there was no
evidence his gun was unlicensed. But those distinctions were not relevant to the outcome in
Baker: “Baker’s status as a serious violent offender, by itself, did not provide the basis for
his prosecution. Rather, the State had to prove that Baker possessed a firearm.” 747 N.E.2d
at 636. Clanton has not demonstrated the denial of his motion to dismiss was an abuse of
discretion.
3. Appropriateness of Sentence
Ind. Appellate Rule 7(B) empowers us to independently review and revise sentences
authorized by statute if, after due consideration, we find the trial court’s decision
inappropriate in light of the nature of the offense and the character of the offender. The
“nature of offense” compares the defendant’s actions with the required showing to sustain a
7
conviction under the charged offense, Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App.
2013), trans. denied, while the “character of the offender” permits for a broader
consideration of the defendant’s character. Id. An appellant bears the burden of showing
both prongs of the inquiry favor revision of his sentence. Id. Whether a sentence will be
found inappropriate turns on our sense of the culpability of the defendant, the severity of the
crime, the damage done to others, and myriad other factors that come to light in a given case.
Sanjari v. State, 981 N.E.2d 578, 584 (Ind. Ct. App. 2013), trans. denied. We recognize the
unique perspective a trial court brings to its sentencing decisions. Id.
The advisory sentence for Class A felony dealing in cocaine is thirty years, Ind. Code
§ 35-50-2-4, and Clanton was sentenced to forty-five years on each count of Class A felony
dealing in cocaine, to be served concurrently. The advisory sentence for Class C felony
neglect of a dependent is four years, Ind. Code § 35-50-2-6, and he was sentenced to six
years on each of the neglect of a dependent counts. The advisory sentence for the Class B
felony firearm possession charge is ten years, Ind. Code § 35-50-2-5, and Clanton was
sentenced to fifteen years for the firearms possession count. The neglect and firearms
sentences were to be served concurrently with each other but consecutive to the cocaine
sentences, for an aggregate sentence of sixty years.
While we agree with Clanton that his offenses are for the most part unremarkable and
involve nothing that warrants a sentence above the advisory, we cannot find Clanton’s
sentences inappropriate in light of his character. An extensive criminal history reflects
poorly on an offender’s character. Schmidt v. State, 952 N.E.2d 249, 253 (Ind. Ct. App.
8
2011), trans. denied. The significance of a criminal history when assessing the
appropriateness of a sentence varies based on the gravity, nature, and number of prior
offenses in relation to the current offense. Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct.
App. 2007).
Clanton’s criminal history dates back to 2004 and includes felony convictions of
armed robbery and escape. Clanton also has nine misdemeanor convictions, which include
weapons and drug offenses. He committed these offenses while on “good behavior”
probation. (App. at 113.) The trial court noted a variety of sanctions have been attempted to
rehabilitate Clanton, without success. Clanton’s sentence was not inappropriate.
CONCLUSION
There was sufficient evidence to convict Clanton, his motion to dismiss was properly
denied, and his sentence is not inappropriate. We therefore affirm.
Affirmed.
BAILEY, J., and BRADFORD, J., concur.
9