MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 29 2018, 10:03 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Frederick A. Turner Curtis T. Hill, Jr.
Bloomington, Indiana Attorney General of Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dutch A. Choate, August 29, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-814
v. Appeal from the Morgan Superior
Court
State of Indiana, The Honorable Brian H. Williams,
Appellee-Plaintiff. Judge
Trial Court Cause No.
55D02-1701-F2-34
Najam, Judge.
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Statement of the Case
[1] Dutch A. Choate appeals his conviction, following a jury trial, for possession of
methamphetamine, as a Level 4 felony, and his sentence. Choate raises the
following two issues for our review:
1. Whether the State presented sufficient evidence to support
his conviction.
2. Whether the trial court erred when it sentenced him to an
aggravated sentence for a felony conviction without
entering a sentencing statement.
[2] We affirm in part, reverse in part, and remand for resentencing.
Facts and Procedural History
[3] On December 24, 2016, at 5:00 a.m., Morgan County Sheriff’s Department
Officer Timothy Coryell went to a residence in Mooresville to serve an arrest
warrant on Lee Harley Davidson Bates. Amber Harless, who lived at the
residence, answered the door and gave Officer Coryell permission to enter and
locate Bates. However, instead of entering personally, Officer Coryell informed
other officers that Harless had indicated Bates was inside the residence, and
other officers entered with a canine unit.
[4] Officers apprehended Bates in the basement of the residence. There,
Mooresville Police Department Officer Mark Harris, who was assisting Officer
Coryell, heard “unknown people moving around” upstairs, which told Officer
Harris that “the scene [wa]s not secure” and “could still pose a danger to the
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law enforcement officers inside . . . .” Tr. Vol. 3 at 33. Accordingly, Officer
Harris went upstairs to secure the residence.
[5] Officer Harris entered Harless’ bedroom and looked under her bed, where he
observed Choate “laying on his stomach” with “his hands in front of him.” Id.
at 35. Officer Harris observed that Choate “had his hands on top of two
baggies with a large amount of substance” in them, which Officer Harris “later
determined to be methamphetamine[].” Id. at 37. After extracting Choate from
underneath the bed, officers further observed under the bed a tray, a glass
smoking pipe with some residue on it, and paraphernalia. Officers arrested
Choate.
[6] The State charged Choate with multiple offenses. After a jury trial, the jury
found him guilty of possession of methamphetamine, as a Level 4 felony. The
trial court entered its judgment of conviction and then sentenced Choate to an
enhanced term of ten years executed in the Department of Correction.
However, neither in its oral pronouncement of Choate’s sentence nor in its
written sentencing order did the court identify any aggravating factors or
otherwise explain its basis for Choate’s sentence. This appeal ensued.
Discussion and Decision
Issue One: Sufficiency of the Evidence
[7] Choate first argues on appeal that the State failed to prove his possession of the
methamphetamine. For sufficiency challenges, we neither reweigh evidence
nor judge witness credibility. Gibson v. State, 51 N.E.3d 204, 210 (Ind. 2016).
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We consider only the evidence most favorable to the judgment together with all
reasonable inferences that may be drawn from the evidence. Id. We will affirm
the judgment if it is supported by substantial evidence, even if the evidence is
conflicting. Id.
[8] Possession can be either actual or constructive. “A person actually possesses
contraband when she has direct physical control over it.” Gray v. State, 957
N.E.2d 171, 174 (Ind. 2011). However, “[w]hen the State cannot show actual
possession, it may nonetheless prevail on proof of constructive possession.” Id.
“A person constructively possesses contraband when the person has (1) the
capability to maintain dominion and control over the item; and (2) the intent to
maintain dominion and control over it.” Id.
[9] Choate argues on appeal that the State failed to show that he constructively
possessed the two baggies of methamphetamine. But the State’s evidence
shows that, when Officer Harris discovered Choate under Harless’ bed, Choate
had “his hands on top of two baggies” filled with methamphetamine. Tr. Vol. 3
at 37. This is not a constructive possession case. When caught, Choate was in
actual possession of the methamphetamine.
[10] Still, Choate argues on appeal that he just “jumped under the bed to hide” and
in doing so just happened to be near contraband that was already there.
Appellant’s Br. at 10. Choate’s argument is neither here nor there on appeal.
The question before us is whether the State presented sufficient evidence to
support the jury’s verdict. The State did so by showing that Choate had direct
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physical control over the methamphetamine when Officer Harris found him.
We affirm his conviction.
Issue Two: Sentence
[11] Choate next contends on appeal that the trial court erred when it sentenced him
to an enhanced term for a Level 4 felony without an explanation for that
sentence. The State concedes that the trial court erred in this respect when it
sentenced Choate, and we agree. See Anglemyer v. State, 868 N.E.2d 482, 490
(Ind. 2007) (“One way in which a trial court may abuse its discretion [in
sentencing] is failing to enter a sentencing statement at all.”).
[12] However, the parties dispute the proper remedy for this error. Choate argues
that he is entitled to the advisory sentence, as Indiana Code Section 35-38-1-1.3
(2018) requires a sentencing statement be made in the pronouncement of a
sentence for a felony conviction “unless the court imposes the advisory sentence
for the felony.” Thus, Choate reasons, because the trial court did not enter the
required sentencing statement, it was required to sentence him to the advisory
sentence. The State asserts, instead, that we should affirm Choate’s sentence as
harmless under Indiana Appellate Rule 7(B).
[13] We have long recognized that, where a trial court has abused its discretion in
sentencing a defendant, “the error is harmless if the sentence imposed was not
inappropriate” under Rule 7(B). Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct.
App. 2007) (citing Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007).
However, central to our review under Rule 7(B) is our assessment of “the trial
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court’s recognition or nonrecognition of aggravators and mitigators as an initial
guide to determining whether the sentence imposed was inappropriate.”
Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016). We cannot do
that where, as here, the trial court has not entered a sentencing statement at all
for us to review. And neither can we say with confidence that the trial court
would have imposed the same sentence had it properly considered reasons that
enjoy support in the record. Anglemyer, 868 N.E.3d at 491. Accordingly, we
reverse Choate’s sentence and remand for resentencing. See Windhorst, 868
N.E.2d at 507.
[14] Affirmed in part, reversed in part, and remanded for resentencing.
Crone, J., and Pyle, J., concur.
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