MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any
court except for the purpose of establishing Jul 28 2020, 10:43 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Justin R. Wall Curtis T. Hill, Jr.
Wall Legal Services Attorney General of Indiana
Huntington, Indiana
Steven Hosler
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Larry Eugene Reust, Jr., July 28, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-729
v. Appeal from the Huntington
Circuit Court
State of Indiana, The Honorable Davin G. Smith,
Appellee-Plaintiff Judge
Trial Court Cause No.
35C01-1910-F3-338
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-729 | July 28, 2020 Page 1 of 8
[1] Larry Reust, Jr., appeals his conviction and the sentence imposed by the trial
court for Level 3 Felony Possession of a Narcotic Drug, 1 arguing that the
evidence was insufficient to support the conviction and that the sentence was
inappropriate in light of the nature of the offense and his character. Finding the
evidence sufficient and the sentence not inappropriate, we affirm.
Facts
[2] On October 22, 2019, Huntington County Sheriff’s Department Deputy Jamin
Sands transported Reust to the Huntington County Jail to be booked for an
unrelated crime. While Deputy Sands was reading Reust the arrest warrant, he
noticed that Reust “appeared to be adjusting his pants.” Tr. Vol. III p. 114.
Then, Special Deputy Joshua Platt took Reust to a dressing room so that he
could change into a jail uniform. Deputy Platt decided to strip search Reust by
asking him to “bend over and squat and cough.” Id. at 119. After Reust twice
failed to complete the procedure, he eventually did what Deputy Platt
requested.
[3] It was at this point that Deputy Platt “was able to see the end of a plastic baggie
near his rectum.” Id. Deputy Platt asked Reust to remove the baggie and hand it
to him; Reust complied. Deputy Platt handed the plastic baggie to Deputy
Sands, and while doing so, he noticed that the plastic baggie contained a
“brown substance.” Id. at 120. Deputy Sands then placed the baggie in a secure
1
Ind. Code § 35-48-4-6(a), -6(d)(2).
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evidence locker and eventually sent it off to the Indiana State Police Laboratory
to be tested. A representative from the lab reported that the substance was a
combination of heroin and tramadol and that it weighed a total of 13.55 grams.
[4] On October 23, 2019, the State charged Reust with one count of Level 3 felony
possession of a narcotic drug due to a prior conviction for dealing in a
controlled substance. The State also alleged that Reust was an habitual
offender. On November 3, 2019, Special Deputy Sidney Jeffers spoke with
Reust on an unrelated matter, and during that conversation, Reust told Deputy
Jeffers that “when he came to the jail—initially came into the jail—that he had
brought heroin inside of his butt checks.” Id. at 150-51.
[5] Following Reust’s March 10-11, 2020, trial, the jury found him guilty as
charged. Additionally, Reust admitted to being an habitual offender. On March
24, 2020, the trial court sentenced Reust to twelve years in the Department of
Correction (DOC) for the Level 3 felony conviction, with an additional thirteen
years imposed for the habitual offender enhancement, for an aggregate term of
twenty-five years. Reust now appeals.
Discussion and Decision
I. Sufficiency of Evidence
[6] First, Reust argues that the evidence was insufficient to support his conviction
for Level 3 felony possession of a narcotic drug. When reviewing the sufficiency
of the evidence supporting a conviction, we must affirm if the probative
evidence and reasonable inferences drawn therefrom could have allowed a
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reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.
McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). It is not our job to reweigh
the evidence or to judge the credibility of the witnesses, and we consider any
conflicting evidence most favorably to the trial court’s ruling. Wright v. State,
828 N.E.2d 904, 906 (Ind. 2005).
[7] To convict Reust of Level 3 felony possession of a narcotic drug, the State was
required to prove beyond a reasonable doubt that Reust, without having a valid
prescription or order, knowingly or intentionally possessed a pure or
adulterated narcotic drug, that the amount of the drug was between ten and
twenty-eight grams, and that an enhancing circumstance applies. I.C. § 35-48-4-
6(a), -6(d)(2). Reust contends that the evidence was insufficient to prove that (1)
he knowingly possessed the narcotics; and (2) the amount of the drug was
between ten and twenty-eight grams.
[8] First, regarding the knowingly element, “[a] person engages in conduct
‘knowingly’ if, when he engages in the conduct, he is aware of a high
probability that he is doing so.” Ind. Code § 35-41-2-2(b). It is undisputed that
when booking Reust, Deputy Sands noticed that Reust “appeared to be
adjusting his pants.” Tr. Vol. III p. 114. Later, during Reust’s strip search,
Deputy Platt asked Reust to turn his head and cough. After two failed attempts,
Reust eventually complied with Deputy Platt’s instructions, which caused
Deputy Platt to notice the end of a plastic baggie sticking out of Reust’s anus.
Later on, Reust admitted to Deputy Jeffers that “when he came to the jail—
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initially came into the jail—that he had brought heroin inside of his butt
checks.” Id. at 150-51.
[9] Based on this evidence, we believe a reasonable factfinder could conclude that
Reust knowingly possessed the narcotics. Not only were the drugs stashed in a
very intimate area over which no other person besides Reust would have had
control, but Reust also confessed to bringing the narcotics with him when he
initially appeared in jail. In other words, it can reasonably be deduced that
Reust was aware of a high probability that he possessed narcotics. Thus, given
Reust’s actions during his arrest, the location of the hidden drugs, and his
confession, we find that the evidence was sufficient to prove the “knowingly”
element.
[10] Next, regarding the amount/weight of the drugs in question, Reust argues that
“it should have been beholden upon the State to prove exactly how much
controlled substance was in the baggie as it is the precise amount of controlled
substance that is indicative of the harm to society that would be inflicted upon it
by the defendant. The State simply failed to do so.” Appellant’s Br. p. 17.
However, the State has done nothing but present uncontroverted evidence that
the narcotics in question weighed 13.55 grams. Reust’s demand that we
reevaluate the narcotics themselves, their amount, and whether the lab report
was credible amounts to nothing more than a request that we reweigh the
evidence, which we may not do. A reasonable trier of fact could have
determined that the amount of the drug in question weighed between ten and
twenty-eight grams based solely on the results from the laboratory report.
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[11] In sum, the evidence is sufficient.
II. Appropriateness
[12] Next, Reust argues that the sentence imposed by the trial court is inappropriate
in light of the nature of the offense and his character.
[13] Indiana Appellate Rule 7(B) states that a “Court may revise a sentence . . . 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.” The question is not whether another sentence is more
appropriate, but whether the defendant’s specific sentence is inappropriate.
Steinberg v. State, 941 N.E.2d 515, 535 (Ind. Ct. App. 2011). In determining
whether the sentence is inappropriate, we will consider numerous factors such
as 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). The defendant bears the
burden of persuading us that his sentence is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
[14] For someone who commits the offense of Level 3 felony possession of a
narcotic drug, the maximum sentence is sixteen years, and the minimum
sentence is three years. Ind. Code § 35-50-2-5(b). The advisory sentence is nine
years. Id. Further, for an habitual offender enhancement as applied to someone
convicted of a Level 3 felony, the trial court may impose an additional fixed
term of between six and twenty years. I.C. § 35-50-2-8(i)(1). Here, the trial court
Court of Appeals of Indiana | Memorandum Decision 20A-CR-729 | July 28, 2020 Page 6 of 8
imposed a twelve-year term for Reust’s Level 3 felony conviction, with an
additional thirteen years imposed for the habitual offender enhancement, for an
aggregate twenty-five-year term to be served in the DOC.
[15] First, as to the nature of the offense, Reust went to great lengths to conceal
contraband from both Deputies Sands and Platt. Not only did Reust refuse to
comply with Deputy Platt’s instructions the first two times, but he also hid
illegal narcotics in a very invasive and private area of his body. We admit that
the circumstances surrounding Reust’s commission of this crime were not the
most extreme or egregious. But, when considered in tandem of our analysis of
Reust’s character, we find that the nature of the offense does not render Reust’s
sentence inappropriate.
[16] More to that point, as to Reust’s character, Reust has previously been convicted
of possession of marijuana, possession of cocaine, possession of a controlled
substance, dealing in cocaine, operating a vehicle while intoxicated, and
possession of a controlled substance within 1,000 feet of school property.
Additionally, he currently has twenty-three criminal charges pending against
him from four different felony cases. See Bailey v. State, 763 N.E.2d 998, 1004
(Ind. 2002) (holding that a history of criminal activity can reflect poorly on a
defendant’s character at sentencing); see also Rutherford v. State, 866 N.E.2d 867,
874 (Ind. Ct. App. 2007) (holding that “it is appropriate to consider such a
[criminal] record as a poor reflection on the defendant’s character, because it
may reveal that he . . . has not been deterred even after having been subjected to
the police authority of the State[]”). The trial court noted Reust’s serious
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criminal history during sentencing when it said that the “[a]ggravating
circumstances are the substantial volume of [Reust’s] criminal history as well as
the substantial nature of the crimes involved in [Reust’s] criminal history.”
Appealed Order p. 1.
[17] While we recognize that the trial court imposed a sentence for Reust’s Level 3
felony conviction above the advisory sentence, the sheer weight and volume of
Reust’s criminal background—combined with the sobering fact that Reust was
charged with some twenty-three crimes after having been charged with the
current offense—lead us to conclude that Reust’s sentence was not
inappropriate. And the crimes with which Reust was charged all fall into the
realm of criminal drug possession, use, intoxication, or distribution. This
apparent disregard for the rule of law and an unwillingness to rehabilitate his
behavior demonstrate that Reust has no remorse for the damage he has caused
to himself and his surrounding community. Thus, we find that Reust’s
character does not render his sentence inappropriate.
[18] In sum, we will not revise Reust’s sentence pursuant to Indiana Appellate Rule
7(B).
[19] The judgment of the trial court is affirmed.
Bailey, J., and Vaidik, J., concur.
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