Jason Keith Scott v. State of Indiana ( 2014 )


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  •  Pursuant to Ind.Appellate Rule 65(D), this
     Memorandum Decision shall not be
                                                                                    Aug 08 2014, 10:29 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:
    
    JOHN P. WILSON                                        GREGORY F. ZOELLER
    Wilson & Wilson                                       Attorney General of Indiana
    Greenwood, Indiana
                                                          JESSE R. DRUM
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana
    
    
                                    IN THE
                          COURT OF APPEALS OF INDIANA
    
    JASON KEITH SCOTT,                                    )
                                                          )
           Appellant-Defendant,                           )
                                                          )
                    vs.                                   )      No.41A01-1311-CR-499
                                                          )
    STATE OF INDIANA,                                     )
                                                          )
           Appellee-Plaintiff.                            )
    
    
                          APPEAL FROM THE JOHNSON CIRCUIT COURT
                               The Honorable K. Mark Loyd, Judge
                                  Cause No. 41C01-1107-FD-379
    
    
                                                August 8, 2014
    
                     MEMORANDUM DECISION - NOT FOR PUBLICATION
    
    FRIEDLANDER, Judge
           Following a bench trial, Jason Scott was convicted of Operating a Vehicle While
    Intoxicated1 (OWI) as a class D felony. Scott now appeals, presenting two issues for our
    review:
            1. Did the State present sufficient evidence to sustain Scott’s conviction?
    
            2. Is the sentence imposed inappropriate?
    
            We affirm.
    
            On June 25, 2011, Greenwood Police Officer Jay Arnold was dispatched to respond
    
    to a suspected impaired driver. Officer Arnold found a vehicle matching the description
    
    and plate number stopped at a traffic light. When the light changed, the driver drove
    
    through the intersection, pulled over to the shoulder, and turned on his hazard lights.
    
    Officer Arnold thought the vehicle might be disabled, so he pulled behind it and activated
    
    his emergency lights. When Officer Arnold approached the vehicle, he smelled alcohol
    
    inside the passenger compartment and observed the passenger in the front seat not wearing
    
    a seatbelt. Scott was driving the vehicle, his girlfriend, Julie Thorpe, was in the front
    
    passenger seat, and Thorpe’s young child was in the backseat. When Officer Arnold asked
    
    Scott for his driver’s license, Scott told the officer that his license was suspended. Thorpe
    
    was allowed to drive the vehicle away and Scott was taken into custody. At the station,
    
    Scott failed multiple field sobriety tests and a breath test showed that that he had an alcohol
    
    concentration equivalent (ACE) of .18 of a gram of alcohol per 210 liters of breath.
    
    
    1
     The version of the governing statutes, i.e., Ind. Code Ann. § 9-30-5-3 (West, Westlaw 2011) and I.C. § 9-
    30-5-1 (West, Westlaw 2011) in effect at the time this offense was committed classified it as a class D
    felony. This statute has since been revised and in its current form reclassifies the offense as a Level 6
    felony. See I.C. § 9-30-5-3 (West, Westlaw current with all 2014 Public Laws of the 2014 Second Regular
    Session and Second Regular Technical Session of the 118th General Assembly). The new classification,
    however, applies only to offenses committed on or after July 1, 2014. See id. Because this offense was
    committed on June 25, 2011, it retains the former classification.
    
                                                        2
            Scott was arrested and charged with multiple OWI offenses. Ultimately, Scott was
    
    convicted of OWI as a class D felony and found to be a habitual substance offender. The
    
    trial court sentenced Scott to eight years in the Department of Correction: three years for
    
    the offense, enhanced by five years for being a habitual substance offender. Scott now
    
    appeals.
    
                                                         1.
    
            Scott argues the State presented insufficient evidence to support his OWI
    
    conviction. When considering a challenge to the sufficiency of evidence to support a
    
    conviction, we respect the fact-finder’s exclusive province to weigh conflicting evidence
    
    and therefore neither reweigh the evidence nor judge witness credibility. McHenry v. State,
    
    
    820 N.E.2d 124
     (Ind. 2005). We consider only the probative evidence and reasonable
    
    inferences supporting the verdict, and “must affirm ‘if the probative evidence and
    
    reasonable inferences drawn from the evidence could have allowed a reasonable trier of
    
    fact to find the defendant guilty beyond a reasonable doubt.’” Id. at 126 (quoting Tobar v.
    
    State, 
    740 N.E.2d 109
    , 111–12 (Ind. 2000)).
    
            In support of his argument concerning the sufficiency of the evidence, Scott makes
    
    multiple allegations, including sloppy police work by the initial investigating officer, lack
    
    of probable cause and/or reasonable suspicion,2 failure to establish corroborating evidence
    
    of the seatbelt violation, and failure to present evidence concerning the police informant.3
    
    
    
    2
      Scott makes no argument on appeal concerning the admission or suppression of any evidence.
    3
      Scott’s argument that the State failed to meet its burden of proof to establish that Scott endangered anyone
    is irrelevant because Scott was not convicted of OWI causing endangerment. See I.C. § 90-30-5-2 (West,
    Westlaw 2011).
    
                                                          3
    These claims are nothing more than invitations to reweigh the evidence, which we will not
    
    do. To support Scott’s class D felony OWI conviction, the State was required to prove that
    
    Scott operated a vehicle with an ACE of at least .15 grams of alcohol per 210 liters of
    
    breath and had a previous OWI conviction that occurred within the 5 years immediately
    
    preceding the current offense. I.C. § 9-30-5-1; I.C. § 9-30-5-3. The State provided
    
    evidence that Scott had an ACE of .18 and Scott admitted that he was driving the vehicle.
    
    Scott had a prior OWI conviction in 2010. This evidence is sufficient to support Scott’s
    
    OWI conviction.
    
                                                   2.
    
           Finally, Scott argues that his eight-year sentence is inappropriate in light of the
    
    nature of the offense and the character of the offender. Article 7, section 4 of the Indiana
    
    Constitution grants our Supreme Court the power to review and revise criminal sentences.
    
    Pursuant to Ind. Appellate Rule 7, the Supreme Court authorized this court to perform the
    
    same task. Cardwell v. State, 
    895 N.E.2d 1219
     (Ind. 2008). Pursuant to App. R. 7(B), we
    
    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.” Wilkes v. State, 
    917 N.E.2d 675
    , 693 (Ind. 2009). Nevertheless, “we
    
    must and should exercise deference to a trial court’s sentencing decision, both because
    
    Rule 7(B) requires us to give ‘due consideration’ to that decision and because we
    
    understand and recognize the unique perspective a trial court brings to its sentencing
    
    decisions.” Stewart v. State, 
    866 N.E.2d 858
    , 866 (Ind. Ct. App. 2007).
    
    
    
                                                   4
           Whether we regard a sentence as inappropriate “turns on our sense of the culpability
    
    of the defendant, the severity of the crime, the damage done to others, and myriad other
    
    factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d at 1224.
    
    Furthermore, “[t]he principal role of appellate review should be to attempt to leaven the
    
    outliers, and identify some guiding principles for trial courts and those charged with
    
    improvement of the sentencing statutes, but not to achieve a perceived ‘correct’ result in
    
    each case.” Id. at 1225. Accordingly, “the question under Appellate Rule 7(B) is not
    
    whether another sentence is more appropriate; rather, the question is whether the sentence
    
    imposed is inappropriate.” King v. State, 
    894 N.E.2d 265
    , 268 (Ind. Ct. App. 2008)
    
    (emphasis in original).
    
           Scott was sentenced to a three years for the class D felony, enhanced by five years
    
    for being a habitual substance offender. A class D felony has a sentencing range of six
    
    months to three years, with an advisory sentence of one and one-half years. Ind. Code Ann.
    
    § 35-50-2-7 (West, Westlaw 2012). Habitual substance offenders face an additional fixed
    
    sentence of three to eight years imprisonment. I.C. § 35-50-2-10(f) (West, Westlaw 2011).
    
    Scott received an eight-year aggregate sentence.
    
           With regard to the nature of the offense, Scott had a suspended driver’s license at
    
    the time of the offense. Furthermore, Scott put not only himself at risk, but Thorpe and her
    
    young child in the backseat as well. As to the character of the offender, we observe that
    
    Scott’s criminal history includes multiple felony and misdemeanor convictions, including
    
    domestic battery as a class D felony, criminal recklessness as a class D felony, battery
    
    resulting in bodily injury, driving while suspended, and conversion. Scott’s lengthy history
    
                                                 5
    of criminal activity is indicative of his disregard for the law and provides ample
    
    justification for the sentence imposed. Scott has failed to meet the burden of persuading
    
    this court that his eight-year sentence was inappropriate.
    
           Judgment affirmed.
    
    Vaidik, C.J., and May, J., concur.
    
    
    
    
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