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