MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Nov 23 2015, 8:32 am
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
Susan E. Schultz Gregory F. Zoeller
Corydon, Indiana Attorney General of Indiana
Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Walter Davis, November 23, 2015
Appellant-Defendant, Court of Appeals Case No.
31A04-1501-CR-38
v. Appeal from the Harrison Superior
Court
State of Indiana, The Honorable Curtis Eskew,
Appellees-Plaintiff Special Judge
Trial Court Cause No.
31D01-1312-FB-774
Bailey, Judge.
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Case Summary
[1] Walter Davis (“Davis”) was convicted after a jury trial of Dealing in a
Controlled Substance, as a Class B felony.1 He now appeals.
[2] We affirm.
Issues
[3] Davis raises three issues for our review, which we restate as:
I. Whether the trial court engaged in impermissible ex parte
communication with the jury;
II. Whether there was sufficient evidence to sustain the judgment;
and
III. Whether Davis’s sentence was inappropriate in light of the
nature of his offense and his character.
Facts and Procedural History
[4] In 2012 or 2013, Christopher Mattingly (“Mattingly”) was a subject of a
Harrison County Sheriff’s Department narcotics investigation. During the
investigation, Mattingly permitted investigators to enter his home, where
investigators found narcotic pills for which Mattingly did not have a
1
Ind. Code § 35-48-4-2(a)(1)(C). The Indiana General Assembly enacted substantial revisions to Indiana’s
criminal laws, effective July 1, 2014. We refer at all times to the provisions of the Code in effect at the time
of Davis’s offense.
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prescription. As a result of this episode, Mattingly agreed to work as a
confidential informant.
[5] In March 2013, Mattingly identified Davis to Harrison County Sheriff’s
Detective Steve Coleman (“Detective Coleman”) as a possible source of
narcotics. Mattingly and Detective Coleman arranged for Mattingly to make a
controlled purchase of oxycodone pills from Davis on March 5, 2013. A search
of Indiana Bureau of Motor Vehicles records indicated that Davis lived at 424
Lemmon Street in Corydon.
[6] On March 5, 2013, Detective Coleman and another officer met with Mattingly
at a neutral location, searched Mattingly, and provided him with a $100 bill and
a hoodie wired with audio-visual recording equipment. Detective Coleman
then drove with Mattingly to Lemmon Street. Detective Coleman and other
officers maintained visual surveillance of the street.
[7] Mattingly exited Detective Coleman’s car and walked to the front porch of 430
Lemmon Street. Mattingly knocked on the door, and Davis answered. The
two went inside the home, and Mattingly used the $100 bill to purchase five
oxycodone tablets from Davis. A third individual was in the residence at some
point during the transaction, but Mattingly had little interaction with this
person.
[8] After completing the purchase of oxycodone, Mattingly left 430 Lemmon Street
and returned to Detective Coleman’s vehicle. Mattingly turned the pills over to
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Detective Coleman, who searched Mattingly for other items and then permitted
Mattingly to leave.
[9] On December 9, 2013, the State charged Davis with Dealing in a Controlled
Substance, as a Class B felony, and Maintaining a Common Nuisance, as a
Class D felony.2 A warrant was issued for Davis’s arrest; the warrant was
served and Davis was arrested on December 10, 2013. On January 2, 2014, the
State alleged Davis to be a Habitual Substance Offender;3 this allegation was
dismissed before trial.
[10] On November 18 and 19, 2014, the State tried Davis to a jury. At the
conclusion of the trial, the jury found Davis guilty of Dealing in a Controlled
Substance. The jury could not reach a consensus on the charge of Maintaining
a Common Nuisance; the State moved to dismiss the charge, and the trial court
granted that motion. A sentencing hearing was conducted on December 29,
2014. At that hearing, the trial court entered judgment of conviction against
Davis for Dealing in a Controlled Substance, and sentenced Davis to thirteen
years imprisonment.
[11] This appeal ensued.
Discussion and Decision
2
I.C. § 35-48-4-13(b).
3
I.C. § 35-50-2-10. This provision of the Indiana Code was repealed, effective July 1, 2014.
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Ex Parte Communication
[12] In this appeal, Davis first contends that the trial court engaged in ex parte
communication with the jury in response to a question from the jury regarding
the meaning of “maintain” as it was used with respect to the charge that Davis
had committed the offense of Maintaining a Common Nuisance.
[13] Addressing constitutional claims related to ex parte communication between the
court and a jury, our supreme court has “repeatedly noted the proper procedure
for trial courts to follow when a deliberating jury makes a request for additional
guidance during its deliberations.” Pendergrass v. State, 702 N.E.2d 716, 719
(Ind. 1998). The court must
notify the parties so they may be present in court and informed of the
court's proposed response to the jury before the judge ever
communicates with the jury. When this procedure is not followed, it
is an ex parte communication and such communications between the
judge and the jury without informing the defendant are forbidden.
However, although an ex parte communication creates a presumption
of error, such presumption is rebuttable and does not constitute per se
grounds for reversal. When a trial judge responds to the jury’s request
by denying it, any inference of prejudice is rebutted and any error
deemed harmless.
Pendergrass v. State, 702 N.E.2d 716, 719-20 (Ind. 1998) (quoting Bouye v. State,
699 N.E.2d 620, 628 (Ind. 1998)). The prohibition against ex parte
communications is to “‘prevent the jury from being improperly influenced by
the judge.’” Id. (quoting Bouye, 699 N.E.2d at 629).
[14] Our review of the record convinces us that there is no appealable issue on this
point. Davis was not convicted of Maintaining a Common Nuisance; instead,
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the jury was hung on this question, and the State dismissed the charge. There is
thus no basis for an allegation of error from which Davis might argue for
reversal.
Sufficiency of the Evidence
[15] Davis’s second issue asks us to consider whether the trial court erred in denying
his motion for a directed verdict as to his charge for Dealing in a Controlled
Substance, as a Class B felony. “[I]n order for a trial court to grant a directed
verdict, there must be a complete lack of evidence on a material element of the
crime or the evidence must be without conflict and susceptible to only an
inference in favor of the defendant’s innocence.” Huber v. State, 805 N.E.2d
887, 890 (Ind. Ct. App. 2004). We accordingly treat Davis’s argument on
appeal as one challenging the sufficiency of the evidence. Id.
[16] Our standard of review in such cases is well settled. We consider only the
probative evidence and reasonable inferences supporting the verdict. Drane v.
State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of
witnesses or reweigh evidence. Id. We will affirm the conviction unless “no
reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind.
2000)). “[T]he evidence is sufficient if an inference may reasonably be drawn
from it to support the verdict.” Id. (quoting Pickens v. State, 751 N.E.2d 331,
334 (Ind. Ct. App. 2001)).
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[17] Here, Davis was charged with Dealing in a Controlled Substance, as a Class B
felony. To convict Davis of this offense, the State was required to prove beyond
a reasonable doubt that Davis delivered or sold oxycodone pills to a
confidential informant on or about 424 Lemmon Street in Corydon. See I.C. §
35-48-4-2(a)(1)(C); App’x at 7.
[18] In his brief, Davis contends that there was insufficient evidence of his
possession of oxycodone prior to the transaction. In particular, Davis argues
that the procedure used during the controlled buy was “deficient,” Appellant’s
Br. at 12, that a third individual was present in the home and could have been
the source of the drugs, and that Mattingly’s motivations in participating in the
controlled buy were questionable. Davis thus insists that the entirety of the
controlled buy, including its surveillance, was so compromised as to render the
evidence insufficient to sustain a conviction.
[19] We undertake our review of the record mindful of the standard of review. The
evidence that favors the verdict is that Mattingly met with Deputy Coleman
and, during this meeting, Mattingly engaged in a conversation on a
speakerphone with Davis. During that conversation, Mattingly arranged to
purchase oxycodone tablets from Davis; the conversation was recorded, and
both Deputy Coleman and Mattingly testified that Davis’s voice was heard on
the recording that was played for the jury. Deputy Coleman testified that he
searched Mattingly thoroughly before and after the controlled buy, and that the
only difference in Mattingly’s possessions were directly related to the buy:
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Mattingly left for the buy with a $100 bill and without drugs on his person, and
returned without the bill and with five tablets of oxycodone.
[20] A review of the video recording of the controlled buy itself shows Mattingly
interacting with an individual that he identified as Davis; Davis was present in
person at trial, which afforded the jury an opportunity to examine both the
video and Davis in order to weigh the evidence related to whether Davis had a
role in the transaction. The video recording shows Davis admit Mattingly to
the residence at 430 Lemmon Street and escort Mattingly to another room. In
that room, the two men engage in a transaction, and Davis is shown at various
times holding a stack of bills and a pill bottle. A third individual was present,
but there is little or no interaction between Mattingly and that third individual.
[21] This is sufficient evidence for a jury to infer that Davis sold oxycodone to
Mattingly. Davis’s arguments to the contrary amount to requests that we
reweigh evidence, which we cannot do. We accordingly affirm Davis’s
conviction for Dealing in a Controlled Substance, as a Class B felony.
Inappropriateness Review
[22] We turn last to Davis’s contention that his sentence is inappropriate.
[23] The authority granted to this Court by Article 7, § 6 of the Indiana Constitution
permitting appellate review and revision of criminal sentences is implemented
through Appellate Rule 7(B), which provides: “The 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
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of the offense and the character of the offender.” Under this rule, and as
interpreted by case law, appellate courts may revise sentences after due
consideration of the trial court’s decision, if the sentence is found to be
inappropriate in light of the nature of the offense and the character of the
offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State,
798 N.E.2d 852, 856-57 (Ind. 2003). The principal role of such review is to
attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.
[24] Upon conviction for Dealing in a Controlled Substance, as a Class B felony,
Davis faced a possible sentencing range running from six to twenty years
imprisonment, with an advisory term of ten years. I.C. § 35-50-2-5. The trial
court sentenced Davis to thirteen years imprisonment.
[25] The nature of Davis’s offense is generally unremarkable. In the context of a
controlled buy, Davis sold five oxycodone pills to Mattingly for $100.
[26] Davis’s character, though not the worst of the worst, does not speak well of
him. Since 1984, Davis has had a series of convictions related to substance
abuse, including convictions for Public Intoxication, Operating a Vehicle While
Intoxicated, and Possession of Marijuana; he has also been convicted of Theft
and Conversion. In several of these cases, Davis was afforded probation in lieu
of prison sentences; in at least two cases, Davis’s probation was revoked for
subsequent criminal conduct. The latest prior conviction and probation
revocation occurred in October 2011, and came about due to a conviction for
Operating a Vehicle While Intoxicated. Davis’s efforts at rehabilitation during
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the trial proceedings are commendable, and we recognize the effect of his
incarceration upon his family. Nevertheless, in light of a criminal history
involving substance abuse over a period of nearly thirty years, it is apparent that
Davis has not benefitted from corrective measures short of incarceration.
[27] We accordingly conclude that Davis’s thirteen-year sentence is not
inappropriate.
Conclusion
[28] Davis lacks any basis for an appeal related to the trial court’s statements to the
jury. There was sufficient evidence to sustain Davis’s conviction, and his
sentence is not inappropriate.
[29] Affirmed.
Baker, J., and Mathias, J., concur.
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