Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
Feb 27 2013, 9:52 am
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:
MATTHEW G. GRANTHAM GREGORY F. ZOELLER
Bowers Brewer Garrett & Wiley, LLP Attorney General of Indiana
Huntington, Indiana
GEORGE P. SHERMAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
PAULA TACKETT, )
)
Appellant-Defendant, )
)
vs. ) No. 35A05-1205-CR-267
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HUNTINGTON SUPERIOR COURT
The Honorable Jeffrey R. Heffelfinger, Judge
Cause No. 35D01-1110-FA-226
February 27, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Paula L. Tackett (Tackett), appeals her conviction and
sentence for Count I, dealing in methamphetamine, a Class A felony, Ind. Code § 35-48-
1-1(b)(3)(B)(ii); and Count II, conspiracy to commit dealing, a Class B felony, I.C. §§
35-41-5-2; -48-4-1.1(b)(3)(B)(iii).
We affirm.
ISSUES
Tackett raises two issues on appeal, which we restate as:
(1) Whether her sentence was appropriate in light of her character and the nature
of the offense; and
(2) Whether the trial court properly denied Tackett’s motion to certify a statement
of evidence.
FACTS AND PROCEDURAL HISTORY
On October 25, 2011, a family case manager for the Huntington County
department of child services investigated allegations of a minor child being left home
alone and the manufacture and use of methamphetamine by the minor’s parents. When
the family case manager arrived at the residence, she found a note pinned on the front
door which read “Don’t bother Knocking[.] Junior has left town and [S.T.] is not having
company. Please Don’t Disturb. Go Away.” (State’s Exh. No. 2). Although there were
lights on inside the house, a television was playing, and dogs were barking, no one
opened the door. The following day, the family case manager received a phone call from
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Tackett, informing the case manager that she and her minor child, S.T., were at a hotel
about an hour away.
Meanwhile, police had obtained a search warrant for the residence. During the
search, police officers discovered several of the ingredients used to manufacture
methamphetamine, including lye, used cold medicine packs, a baggie containing lithium
strips, tubing, and several bottles which had been used as generators and reaction vessels.
Based on the number of reactionary vessels located, the officers determined that eight
separate meth labs had been created inside the residence. The officers also found mail
addressed to Tackett.
On October 28, 2011, Indiana State Police Detective Shane Jones (Detective
Jones) interviewed Tackett. Tackett admitted that her husband, Raymond Tackett, Jr.
(Raymond) manufactured methamphetamine because they needed money. They lived
together in the residence and Tackett had witnessed Raymond cooking methamphetamine
in the house. She stated that she had purchased lye for Raymond at a local hardware
store which he had used to manufacture methamphetamine. Detective Jones also
reviewed the pharmacy log of the local Wal-Mart, which showed that Tackett had
purchased pseudoephedrine on September 18, 2011, October 7, 2011, and October 22,
2011.
On October 28, 2011, the State filed an Information charging Tackett with Count
I, dealing in methamphetamine, a Class A felony, Ind. Code § 35-48-1-1(b)(3)(B)(ii). On
March 28, 2011, the State amended the charging Information and added Count II,
conspiracy to commit dealing, a Class B felony, I.C. §§ 35-41-5-2; -48-4-
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1.1(b)(3)(B)(iii). On April 18 through April 19, 2012, the trial court conducted a jury
trial. At the close of the evidence, Tackett was found guilty as charged. On May 22,
2012, during a sentencing hearing, the trial court sentenced Tackett to thirty years on
Count I and ten years on Count II, with sentences to run concurrently.
On May 23, 2012, Tackett filed a notice of appeal. On August 6, 2012, she filed a
motion to stay appeal and remand, which we granted ten days later. On October 15,
2012, Tackett filed a motion to certify her statement of evidence in the trial court. This
statement of evidence, verified by Tackett’s trial counsel, noted that Tackett “wore a dark
blue jail uniform on both days of her trial, as she was in custody during the trial.”
(Appellant’s App. p. 81C). The statement also indicated that “[t]here was no objection to
this either on the record, at sidebar, in chambers, or at any other time during the course of
this proceeding.” (Appellant’s App. p. 81C). On November 7, 2012, the trial court
denied Tackett’s motion to certify statement of evidence because “[t]he statement is not
evidence and is an attempt by [Tackett] to certify allegations that are outside of the
official record of the proceedings.” (Appellant’s App. p. 81E).
Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Sentence
Tackett contends that her thirty-year sentence is inappropriate considering her
character and the nature of the offense. Here, Tackett was sentenced to a Class A felony,
which carries a fixed term of between twenty and fifty years, with the advisory sentence
being thirty years. See I.C. § 35-50-2-4. In addition, she was sentenced to a Class B
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felony, which has a fixed term of between six and twenty years, with the advisory
sentence being ten years. See I.C. § 35-50-2-5. As such, Tackett’s concurrent sentence
of thirty years for the Class A felony and ten years for the Class B felony amounted to the
advisory sentence for each crime.
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. Ind. Appellate Rule 7(B). In performing our review, we assess
“the culpability of the defendant, the severity of the crime, the damage done to others,
and a myriad of other factors that come to light in a given case.” Cardwell v. State, 895
N.E.2d 1219, 1224 (Ind. 2008). A defendant “must persuade the appellate court that his
or her sentence has met the inappropriateness standard of review.” Anglemyer v. State,
868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).
With respect to Tackett’s character, we note that she has a minimal criminal
history compared to the severity of the instant charges, with her last conviction dating
from 2002. Specifically, she was convicted in 1995 for driving while intoxicated, in
1995 for check deception, conversion in 2000, and perjury and disorderly conduct in
2002. She completed probation whenever she was placed on it. However, as a mother,
she allowed her minor child to live in a dangerous situation—a situation she encouraged
and actively participated in.
Turning to the nature of the crime, it should be noted that Tackett’s minor child
was living in the residence where she allowed Raymond to cook methamphetamine. Not
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only did she tolerate his culinary pursuits, she also aided him by purchasing the necessary
ingredients lye and pseudoephedrine. The evidence indicated that eight separate meth
labs had been created inside the home. When officers searched the residence, all but one
of the rooms needed to be decontaminated as they had dangerous levels of
methamphetamine. The minor child’s bedroom “had too high of a level for safety for
him to live.” (Transcript p. 398). The officers even found dangerously high levels in the
ventilation system. These high levels of methamphetamine found throughout the home
support an inference that this was an on-going operation.
Based on these facts, we conclude that the trial court’s imposition of concurrent
advisory sentences is appropriate in light of Tackett’s character and the nature of the
crime.
II. Motion to Certify Evidence
Next, Tackett contends that the trial court erred in denying her motion to certify
her statement of evidence pursuant to Indiana Appellate Rule 31 as the statement sought
to clarify a course of conduct that took place during trial. Specifically, she asserts that
the motion clarifies an omission in the record, i.e., that Tackett appeared in a dark blue
jail uniform.
Indiana Appellate Rule 31 provides, in pertinent part:
If no Transcript of all or part of the evidence is available, a party or the
party’s attorney may prepare a verified statement of the evidence from the
best available sources, which may include the party’s or the attorney’s
recollection. The party shall then file a motion to certify the statement of
evidence with the trial court or Administrative Agency. The statement of
evidence shall be attached to the motion.
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If the statement is certified by the trial court, it will then become part of the Clerk’s
Record. See App. R. 31(C). The certification of an accurate record, including a
statement of the evidence where no transcript has been taken, is a matter left entirely to a
trial court’s discretion and is not subject to review by this court. Harbour v. Bob
Anderson Pontiac, 624 N.E.2d 475, 477 (Ind. Ct. App. 1993). The trial judge, being
present at trial, is in a better position to determine what actually occurred. Id.
Besides the fact that the trial court’s decision to certify a party’s statement of
evidence is not available for our review, there is a more compelling reason not to apply
Indiana Appellate Rule 31 in this situation. Here, Tackett presented us with an entire
transcript of not only the trial, but also of the omnibus hearing and several pre-trial
hearings. The transcript of the trial itself is complete and there are no parts missing or
untranscribable. Merely because counsel omitted to include or object on the record as to
what his client was wearing does not now allow him to supplement the record by
applying App. R. 31. As such, we cannot say that the trial court abused its discretion by
denying certification of Tackett’s statement of the evidence.
CONCLUSION
Based on the foregoing, we conclude that Tackett’s sentence was appropriate in
light of her character and the nature of the offense; and the trial court properly denied
Tackett’s motion to certify a statement of evidence.
Affirmed.
BAKER, J. and BARNES, J. concur
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