Johnathon R. Aslinger v. State of Indiana ( 2014 )

  •                                                    Jan 23 2014, 10:17 am
    JEREMY K. NIX                                  GREGORY F. ZOELLER
    CASEY C. MORGAN                                Attorney General of Indiana
    Matheny Hahn Denman & Nix, LLP
    Huntington, Indiana                            ERIC P. BABBS
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana
                                  IN THE
                        COURT OF APPEALS OF INDIANA
    JOHNATHON R. ASLINGER,                         )
          Appellant-Defendant,                     )
                 vs.                               )       No. 35A02-1303-CR-296
    STATE OF INDIANA,                              )
          Appellee-Plaintiff.                      )
                             The Honorable Jeffrey R. Heffelfinger, Judge
                        Cause No. 35D01-1206-FD-127 & 35D01-1207-FA-152
                                        January 23, 2014
                                 OPINION - FOR PUBLICATION
    RILEY, Judge
                                 STATEMENT OF THE CASE
          This consolidated appeal stems from two separate, but closely-related, proceedings
    conducted in Huntington County, Indiana. Appellant-Defendant, Johnathon R. Aslinger
    (Aslinger), appeals his convictions and sentences for possession of methamphetamine, a
    Class D felony, Ind. Code § 35-48-4-6.1, and possession of paraphernalia, a Class A
    misdemeanor, I.C. § 35-48-4-8.3(a) (Case #127); and dealing in methamphetamine, a Class
    A felony, I.C. § 35-48-4-1.1 (Case #152).
          We affirm in part, reverse in part, and remand.
       Aslinger raises five issues on appeal, which we restate as:
       (1) Whether the trial court abused its discretion in admitting evidence purportedly
          seized in violation of the Fourth Amendment;
       (2) Whether the trial court abused its discretion in denying Aslinger an opportunity to
          make an offer of proof;
       (3) Whether the trial court abused its discretion in sentencing Aslinger to consecutive
          habitual substance offender sentence enhancements;
       (4) Whether the trial court abused its discretion in refusing to tender Aslinger’s jury
          instruction; and
       (5) Whether Aslinger’s sentence is inappropriate in light of the nature of the offense
          and character of the offender.
                             FACTS AND PROCEDURAL HISTORY
            On June 19, 2012, shortly before midnight, Huntington Police Officer Alan Foster
    (Officer Foster) responded to a dispatch of two juvenile males breaking into vehicles.
    Upon arriving at the location, Officer Foster observed two males who fit the description
    provided in the dispatch, Aslinger and Geoffrey Fugate (Fugate), standing near the street.
    As Officer Foster approached, Aslinger and Fugate began walking away, and Officer
    Foster saw Aslinger place some items in Fugate’s backpack. Officer Foster asked Aslinger
    and Fugate to stop and talk to him, but they continued walking. After Officer Foster’s
    second request, announcing himself as the K-9 Unit, Aslinger and Fugate obeyed. After
    verifying the men’s identifications, Officer Foster detected a “rolled cigarette/joint” tucked
    behind Aslinger’s ear. (Tr. #127 p. 91). When questioned, Aslinger explained that “it was
    a rolled joint of B2.”1 (Appellant’s #127 App. p. 17). Officer Foster then examined the
    hand-rolled cigarette. Based on its aroma, Officer Foster believed it to be marijuana, which
    he verified with a field test.
            While discussing the results of the field test with Aslinger, who maintained that the
    substance was B-2, Officer Foster noticed a silver knife in Aslinger’s pocket and requested
    that Aslinger remove everything from his pockets.2 By this time, Officer Karl Shockome
    had arrived to assist Officer Foster. In addition to the knife, the Officers removed a glass
    pipe, a yellow pen barrel, and an electronic scale from Aslinger’s pockets. Officer Foster
    performed a pat-down on Aslinger and felt “a long slender bulge” in his pocket, which
      B-2, also commonly known as spice, “is a synthetic drug . . . that is supposed to represent the same
    euphoria feeling of ‘high’ as marijuana.” (Tr. #127 p. 91). Depending on its formulation, it may be legal.
      The details of the pat-down vary between Officer Foster’s police report from the night of the incident
    and his testimony at trial. Thus, it is unclear to what extent Officer Foster ordered Aslinger to empty his
    own pockets versus the extent to which Officer Foster actually felt and removed the items.
    Officer Foster removed to reveal a “pipe that is used for smoking marijuana.” (Tr. #127 p.
    94). Officer Foster “then handcuffed [Aslinger] for our safety and his. We checked the
    watch pocket and found two plastic bags with a white powder.” (Appellant’s #127 App. p.
    17). A field test confirmed the white powder was methamphetamine.
            At this time, Officer Foster requested the dispatch officer to communicate with the
    witnesses who had reported the break-ins, and who were observing Officer Foster’s
    encounter with Aslinger and Fugate from their window. The dispatch officer informed
    Officer Foster that they were not the two men spotted breaking into cars. Officer Foster,
    having been denied permission to search the backpack, told Fugate he was free to leave.
    Aslinger, however, was placed under arrest.
            The following day, June 20, 2012, the State filed an Information charging Aslinger
    with Count I, possession of methamphetamine, a Class D felony, I.C. § 35-48-4-6.1; Count
    II, possession of marijuana, a Class D felony, I.C. § 35-48-4-11; and Count III, possession
    of paraphernalia, a Class A misdemeanor, I.C. § 35-48-4-8.3(b). The State also filed a
    separate Information to charge Aslinger as a habitual substance offender (HSO) based on
    two convictions in 2010 for Class A misdemeanor substance offenses: operating while
    intoxicated (OWI) and possession of marijuana. Aslinger was subsequently released on
            Exactly one month after his arrest—while out on bond—during the late-night/early-
    morning hours of July 18-19, 2012, Aslinger and three friends—Aaron Downey (Downey),
    Trista Thornsberry (Thornsberry), and Tria Loshe (Loshe)—spent a few hours driving
    around country roads in Huntington County. As they drove, Aslinger and Downey used a
    plastic bottle to start cooking a batch of methamphetamine. The group eventually drove to
    Christie Davis’ home at 344 Swan Street in Huntington, which is located approximately
    250 feet from Laurie Park. Once there, Aslinger and Downey finished preparing the
    methamphetamine, which they and the others then injected intravenously and smoked
    multiple times over the next several hours.
           Around mid-morning on July 19, Aslinger and Thornsberry left Davis’ house on
    foot. An argument ensued, and, because their walk along the railroad tracks led them
    directly to the backside of the Huntington County jail, it did not take long for their
    screaming to capture police attention. Police officers investigated the disturbance and
    quickly suspected that Aslinger and Thornsberry “were under the influence of something.”
    (Tr. #152 p. 107). In the midst of her yelling and erratic behavior, Thornsberry revealed
    that she was currently on probation, prompting the police officers to take her into custody.
    At that time, because of his compliance with the officers, Aslinger was permitted to leave.
    Later that evening, following an interview with Thornsberry, the police officers obtained
    and executed a search warrant at the Swan Street house where they found evidence of a
    methamphetamine lab. Downey, Loshe, and Davis—who were all still at the Swan Street
    house when the warrant was executed—were taken into custody and interviewed.
           The next day, July 20, 2012, the State filed an Information, charging Aslinger with
    one Count of dealing in methamphetamine, a Class A felony, I.C. § 35-48-4-1.1.
    Specifically, the Information alleged that Aslinger “knowingly manufactured
    methamphetamine . . . within one thousand (1,000) feet of a public park.” (Appellant’s
    #152 App. p. 9). On September 24, 2012, the State filed a second Information and charged
    Aslinger as an HSO for his prior OWI and marijuana possession convictions.
           On February 6 through February 8, 2013, a bifurcated jury trial was held for Case
    #152. At the close of the evidence, the jury returned a guilty verdict for dealing in
    methamphetamine.      Thereafter, Aslinger admitted to having two prior substance
    convictions and entered a guilty plea to the HSO charge. On February 21, 2013, a
    bifurcated jury trial was conducted for Case #127. The jury returned a verdict of guilty as
    to possession of methamphetamine and paraphernalia, but found Aslinger not guilty of
    marijuana possession. Following the verdict, the jury heard additional evidence and found
    Aslinger guilty of being an HSO.
           On March 12, 2013, the trial court conducted a sentencing hearing for both Case
    #127 and Case #152. The trial court first sentenced Aslinger for his conviction in Case
    #152, imposing a thirty-two-year sentence for dealing in methamphetamine, enhanced by
    five years for the HSO adjudication, for a total of thirty-seven years. For Case #127, the
    trial court sentenced Aslinger to serve one-and-a-half years for methamphetamine
    possession, enhanced by five-and-a-half years for the HSO adjudication. The trial court
    also ordered a concurrent one-year sentence for possession of paraphernalia, for a total
    term of seven years. The trial court ordered the sentences for Case #127 and Case #152 be
    served consecutively, resulting in an aggregate sentence of forty-four-years.
           Aslinger now appeals. Additional facts will be provided as necessary.
                                DISCUSSION AND DECISION
                                          I. Case #127
          Aslinger was convicted of possession of methamphetamine, a Class D felony, I.C.
    § 35-48-4-6.1, and possession of paraphernalia, a Class A misdemeanor, I.C. § 35-48-4-
    8.3(a). He now challenges that: (A) evidence was improperly admitted after being seized
    in violation of the Fourth Amendment; (B) he was denied the opportunity to make an offer
    of proof; and (C) his HSO sentence enhancement is unauthorized by Indiana law.
                                     A. Search and Seizure
          First, Aslinger claims the trial court abused its discretion in admitting evidence
    seized in violation of the Fourth Amendment to the United States Constitution. The Fourth
    Amendment, which is applicable to the states through the Fourteenth Amendment, provides
    citizens with the right to be free from “unreasonable searches and seizures.” U.S. CONST.
    AMEND. IV.   Where a search is conducted in the absence of a warrant, the State must prove
    there was a valid exception. Moore v. State, 
    827 N.E.2d 631
    , 638 (Ind. Ct. App. 2005),
    trans. denied. Whether a warrantless search and seizure violates the Fourth Amendment
    “depends upon the facts and circumstances of each case[,]” and evidence obtained from an
    invalid seizure is inadmissible pursuant to the United States Supreme Court’s
    “exclusionary rule.” Id. at 636-38. A trial court generally has broad discretion over
    evidence admissibility, and our court will reverse only for an abuse of discretion. Francis
    v. State, 
    764 N.E.2d 641
    , 643-44 (Ind. Ct. App. 2002). We will not reweigh evidence, will
    consider conflicting evidence in a light most favorable to the trial court’s ruling and
    uncontested evidence in the defendant’s favor. Id. Notwithstanding our deference to the
    trial court’s evidentiary decisions, we review determinations of an officer’s reasonable
    suspicion to conduct an investigatory stop de novo. Harper v. State, 
    922 N.E.2d 75
    , 79
    (Ind. Ct. App. 2010), trans. denied.
            Aslinger asserts that evidence was improperly seized because “the reasonable
    suspicion which gives authority to [an officer to conduct] a Terry stop does not authorize
    the examination of the contents of items carried by the suspicious person.” (Appellant’s
    #127 Br. p. 7). A police officer may briefly detain “a person for investigative purposes if
    the officer has a reasonable suspicion supported by articulable facts that criminal activity
    ‘may be afoot.’” Armfield v. State, 
    918 N.E.2d 316
    , 319 (Ind. 2009) (quoting Terry v.
    392 U.S. 1
    , 30 (1968)). During a Terry stop, an officer is justified in asking a few
    questions and, if the situation calls for it, frisking the suspect for weapons. See Edmond v.
    951 N.E.2d 585
    , 588 (Ind. Ct. App. 2011). In this case, Aslinger does not contest
    that the original purpose for Officer Foster to make a Terry stop was reasonable based on
    the dispatch that “two [male] juveniles in the area of Wright Street and Salamonie Avenue
    were . . . breaking into cars.” (Tr. #127 p. 86). Instead, Aslinger challenges that Officer
    Foster’s investigation to matters beyond the vehicle break-ins exceeded the investigation
    permissible without a warrant.             Conversely, the State contends that the Officer’s
    observation of the hand-rolled cigarette provided the Officer with reasonable suspicion to
    detain Aslinger and investigate further.3
      The State initially claims that Aslinger waived his Fourth Amendment claim for appellate review by
    failing to object when the State admitted the physical evidence at trial, which “is required to preserve the
    issue for appeal.” Brown v. State, 
    929 N.E.2d 204
    , 207 (Ind. 2010). Our court may review a waived
    claim if “a fundamental error occurred.” Id. In this case, we need not engage in a fundamental error
    analysis. Immediately prior to the introduction of the physical evidence collected by Officer Foster,
    Aslinger objected to the Officer’s search “and anything after this point” as a violation of Terry v. Ohio,
    392 U.S. 1
     (1968), which was overruled. (Tr. #127 p. 90). We thus find this issue is not waived.
           Our nation’s courts have long held that “an investigative detention must be
    temporary and last no longer than is necessary to effectuate the purpose of the stop.”
    Finger v. State, 
    799 N.E.2d 528
    , 534 (Ind. 2003) (quoting Florida v. Royer, 
    460 U.S. 491
    500 (1983)). Here, when Officer Foster arrived on the scene, he saw two males whose ages
    he could not readily identify. Upon the Officer’s request, Aslinger and Fugate provided
    their identification cards, which would have verified the men were not juveniles, and,
    although it is unclear at what point he called the dispatch officer to contact the witnesses,
    Officer Foster did receive confirmation that Aslinger and Fugate were not the two
    suspected of the vehicle break-ins. Furthermore, other than his observation that Aslinger
    had placed something into Fugate’s bag, which was not questioned, Officer Foster noted
    no other conduct to sustain a suspicion that Aslinger was involved in the break-ins. See
    Jamerson v. State, 
    870 N.E.2d 1051
    , 1058 (Ind. Ct. App. 2007). Once the purpose of an
    investigatory stop has been satisfied, a police officer is not justified in extending the
    investigation. See Holly v. State, 
    918 N.E.2d 323
    , 326 (Ind. 2009).
           Despite the purposes of the stop being seemingly satisfied, Officer Foster
    nonetheless continued the Terry stop with an investigation of the hand-rolled cigarette and
    a thorough search of Aslinger’s pockets. As to the seizure of the cigarette, Aslinger claims
    that Officer Foster exceeded the scope of his authority because “[t]he illegality of the rolled
    cigarette was not readily apparent to Officer Foster.” (Appellant’s #127 Br. p. 7). Under
    the plain view doctrine, a police officer who is lawfully in a particular place may seize an
    item inadvertently discovered, so long as its incriminating nature is “readily apparent.”
    Lance v. State, 
    425 N.E.2d 77
    , 78 (Ind. 1981). When Officer Foster observed the rolled
    cigarette in plain view behind Aslinger’s ear, the Officer was permissibly on a public street.
    However, a hand-rolled cigarette is not per se illegal. Based on the Officer’s testimony, it
    is clear that it was not “immediately apparent or instantaneously ascertainable” to Officer
    Foster whether the hand-rolled cigarette contained an illicit substance, and merely
    suspecting that an item is unlawful is not sufficient to conduct a warrantless seizure.
    Corwin v. State, 
    962 N.E.2d 118
    , 122 (Ind. Ct. App. 2011) (discussing plain feel doctrine),
    trans. denied. Officer Foster reported nothing to merit suspicion that Aslinger had drugs
    tucked behind his ear, and to even suspect the cigarette was marijuana, Officer Foster had
    to take it, sniff it, and look inside it to see “green plant material.” (Appellant’s #127 App.
    p. 17).
              With respect to the seizure of paraphernalia, Officer Foster, “without more,” was
    not permitted by Terry or the plain view doctrine to investigate “the contents of the items”
    in Aslinger’s pockets. Corwin, 962 N.E.2d at 122. That said, during a permissible Terry
    stop, if the police officer has “a reasonable fear of danger,” the officer may “conduct a
    carefully limited search of the [suspect’s] outer clothing” for the distinct purpose of
    locating weapons. Johnson v. State, 
    710 N.E.2d 925
    , 928 (Ind. Ct. App. 1999). Officer
    Foster’s view of the knife in Aslinger’s pocket certainly gives rise to a reasonable concern
    for officer safety. Officer Foster testified that after he removed the knife from Aslinger’s
    pocket and placed it in the police car, he observed another “long slender bulge” in
    Aslinger’s pocket (Tr. #127 p. 94). Believing it could be another knife or weapon, Officer
    Foster also removed what turned out to be a pipe for smoking marijuana. Because one
    weapon had already been removed from Aslinger’s possession, we find Officer Foster was
    reasonable to believe the knife-shaped pipe may have been a second weapon.
           While the removal of the pipe is permissible under a valid Terry stop, it is well-
    established that an officer’s justification to conduct a pat-down for weapons is limited to
    just that; it is not an invitation “to discover evidence of a crime.” Johnson, 710 N.E.2d at
    928. In this case, Officer Foster testified that also he searched the rest of Aslinger’s pockets
    and removed another pipe, a square scale, and a pen barrel, as well as two plastic bags
    filled with white powder from the watch pocket. Officer Foster did not state that he
    believed these were weapons, and it is insufficient in a pat-down that he “merely suspected”
    feeling paraphernalia or narcotics. Parker v. State, 
    697 N.E.2d 1265
    , 1268 (Ind. Ct. App.
    1998). To justify removing this contraband from Aslinger’s pockets, its identity must have
    been “immediately apparent or instantaneously ascertainable.” Id.
           The State’s alternative argument that no warrant was required focuses on the fact
    that the items from Aslinger’s pockets were seized pursuant to a valid search incident to
    arrest. Because Officer Foster detected the odor of marijuana, the State contends he had
    probable cause to arrest Aslinger and conduct a subsequent search. The State references
    cases such as Edmond, 951 N.E.2d at 585, and Miller v. State, 
    846 N.E.2d 1077
     (Ind. Ct.
    App. 2006), for the proposition that “the distinctive odor of marijuana . . . yields probable
    cause that the person possesses marijuana.” (Appellee’s Br. pp. 19-20). The present case
    is distinct, however, because there was no scent of marijuana emanating from Aslinger’s
    person or vehicle. The State avers that “Officer Foster not only smelled marijuana but
    localized the smell’s source to a particular object, the rolled ‘joint’ cigarette that was on
    Aslinger’s person.” (Appellee’s Br. p. 20). The State is mistaken in its sequence of events;
    in fact, Officer Foster had to physically take the cigarette from Aslinger and then sniff it to
    detect any odor.      Accordingly, because the seizure of the hand-rolled cigarette was
    unrelated to the purpose justifying the Terry stop and not subject to seizure under the plain
    view doctrine, Officer Foster did not have probable cause to make an arrest and conduct
    an incidental search. We find the trial court abused its discretion in admitting the marijuana
    joint, methamphetamine, and paraphernalia (with the exception of the second pipe, which
    was thought to have been a knife) because no warrant or warrant exception authorized their
                                             B. Offer of Proof
           Next, Aslinger claims that the trial court abused its discretion by denying him the
    opportunity to make an offer of proof to “show[] facts and circumstances for the underlying
    offenses which would justify a jury in not determining that Aslinger was [an HSO].”
    (Appellant’s #127 Br. p. 9). An “[e]rror may not be predicated upon a ruling which . . .
    excludes evidence unless . . . the substance of the evidence was made known to the court
    by a proper offer of proof, or was apparent from the context within which questions were
    asked.” Ind. Evidence Rule 103(a)(2). “An offer of proof should show the facts sought to
    be proved, the relevance of that evidence, and the answer to any objection to exclusion of
    the evidence.” State v. Wilson, 
    836 N.E.2d 407
    , 410 (Ind. 2005). An offer of proof assists
      Because the second pipe remains admissible, Aslinger’s conviction for possession of paraphernalia may
    be upheld on remand. As a third substance offense, unrelated to his prior convictions for marijuana
    possession or OWI, a conviction for paraphernalia possession would merit the HSO enhancement.
    Therefore, we address Aslinger’s claims of error regarding his offer of proof and consecutive sentences
    because they pertain to the HSO enhancement.
    the trial court in ruling on an evidentiary objection and “preserve[s] for appeal the trial
    court’s allegedly erroneous exclusion of evidence.” Duso v. State, 
    866 N.E.2d 321
    , 324
    (Ind. Ct. App. 2007). We review this issue for harmless error. See id.
           During the HSO phase of the trial, Aslinger attempted to testify about his prior
    substance offense convictions:
           DEFENSE COUNSEL:             All right [Aslinger], let’s start with talking about
                                        the OWI charge. Were you pulled over [on
                                        August 2, 2008]?
           ASLINGER:                    No I was not.
           DEFENSE COUNSEL:             How did the police come to charge you with that
                                        crime? What happened?
           STATE:                       I’m going to object to this on relevance.
           TRIAL COURT:                 Sustained.
    (Tr. #127 p. 181). Aslinger continued, stating he pled guilty to the OWI and marijuana
    possession charges. Immediately thereafter, closing statements and final instructions were
    provided, and the case was given to the jury. After the jury began deliberating, Aslinger
    requested to make an offer of proof regarding the excluded OWI testimony:
           TRIAL COURT:                 You can just go ahead and make it on here. I
                                        don’t need to be in here for you to make your, uh
                                        . . . whatever proof that you were going to offer.
           DEFENSE COUNSEL:             Well, we were going to recall him to the stand
                                        and go through those questions where he was
                                        stopped. I mean, it will take just a couple
                                        minutes but it’s a matter of preserving the record.
           TRIAL COURT:                 No, I’m not going to allow it.
    (Tr. #127 p. 188 (alteration in original)). Although the trial judge was not in the courtroom,
    Aslinger made his offer of proof by testifying that, in 2010, his attorney had advised him
    to plead guilty despite the fact that, on the night of the OWI, there was an accident but
    police neither saw him driving nor pulled him over, and at the time he was arrested for
    marijuana possession, he did not possess marijuana—just a pipe.
             Aslinger claims that the trial court erred by refusing to be present to hear the offer
    of proof to be able to reconsider its ruling. The State counter-argues that there was no need
    for the trial judge to be present for the offer of proof because the jury had already
    commenced deliberations, so it was too late for the trial court to reconsider. Furthermore,
    the State asserts that the trial court did not err because Aslinger was permitted to make an
    offer of proof on the record for the sake of appeal. We agree. Our court has previously
    established that in order to preserve an evidentiary error, the party must make “[a] specific
    and timely objection and offer of proof.” Kellett v. State, 
    716 N.E.2d 975
     (Ind. Ct. App.
    1999). Here, Aslinger clearly failed to make his offer of proof in a timely manner. He had
    an opportunity following the State’s objection, but, instead, he finished his testimony and
    made a closing argument without mentioning the offer of proof. Once the jury began
    deliberating, Aslinger could hardly expect that the trial court would reverse its ruling and
    terminate the jury’s deliberations in order to accommodate Aslinger’s mistake.             We
    therefore find that the trial court did not deny Aslinger the opportunity to make an offer of
                      C. Habitual Substance Offender Sentence Enhancements
             Finally, as to this case, Aslinger claims that the trial court erred by imposing
    consecutive HSO enhancements to his sentences. A defendant may be “sentenced as a
    habitual substance offender for any substance offense by alleging . . . that the person has
    accumulated two (2) prior unrelated substance offense convictions.” I.C. § 35-50-2-10(b).
    An HSO enhancement adds between three and eight years to a substance offense sentence.
    I.C. § 35-50-2-10(f). A joint sentencing hearing was conducted for Case #127 and Case
    #152. During the hearing, the trial court enhanced Aslinger’s thirty-two-year sentence for
    dealing methamphetamine by five years for the HSO adjudication and also imposed a five-
    and-a-half-year    HSO       enhancement    to    his   one-and-a-half-year    sentence   for
    methamphetamine possession. The trial court ordered the sentences to run consecutively,
    totaling forty-four years.
           The trial court ordered the consecutive sentences because Aslinger committed the
    crime in Case #152 while released on bond in Case #127. See I.C. § 35-50-1-2(d). The
    Indiana Supreme Court has established that a trial court exceeds its authority by imposing
    consecutive habitual offender sentences because the statute does not expressly authorize
    consecutive sentences. See Starks v. State, 
    523 N.E.2d 735
    , 736-37 (Ind. 1988). This court
    has also previously applied this principle to sentences imposed during the same sentencing
    proceeding, even if not from a single trial—as is the case with Aslinger. See Ingram v.
    761 N.E.2d 883
    , 885-86 (Ind. Ct. App. 2002).
           However, the State argues that Aslinger’s consecutive sentence enhancements
    should be distinguished because we are dealing with the habitual substance offender
    statute—not the general habitual offender provision. Our supreme court has noted that the
    general habitual offender statute
           has historically provided for greater punishment than would ordinarily be
           imposed upon the substantive crime charged. The individual is subjected to
           the greater sentence neither for the prior crimes nor for the status of habitual
           offender, but rather the enhanced sentence is imposed for the last crime
           committed. The purpose of the statute is to more severely penalize those
           persons whom prior sanctions have failed to deter from committing felonies.
    Baker v. State, 
    425 N.E.2d 98
    , 100 (Ind. 1981) (internal citation omitted). We find this
    principle equally applicable to the HSO statute. The State requests that this court accord
    different treatment because the HSO statute “provides a more modest level of
    enhancement” than does the general habitual offender statute. (Appellee’s Br. p. 34).
    Though it is tailored for a specific situation, the HSO statute serves the same purpose of
    enhancing the punishment for an individual whose punishments in two prior substance
    offenses were not sufficient to deter his or her commission of the third offense.
    Furthermore, like the general habitual offender statute, the HSO statute is silent as to
    consecutive enhancements, and we decline to diverge from the supreme court’s conclusion
    that, in the absence of explicit permission, the trial court has no such authority.
    Accordingly, we find it was an abuse of discretion for the trial court to order the
    enhancements to run consecutively. On remand, we instruct the trial court to order the
    HSO enhancements be served concurrently.
                                           II. Case #152
           Aslinger was convicted of dealing in methamphetamine, a Class A felony, I.C. §
    35-48-4-1.1. Aslinger now challenges (A) that the trial court erred in refusing to submit
    his tendered instruction to the jury; and (B) that his sentence is inappropriate.
                                        A. Jury Instruction
           First, Aslinger claims that the trial court abused its discretion by failing to provide
    the jury with his tendered instruction. In general, a trial court has complete discretion in
    matters pertaining to jury instructions. Driver v. State, 
    760 N.E.2d 611
    , 612 (Ind. 2002).
    In reviewing whether a trial court has abused its discretion by refusing to include a party’s
    jury instruction, this court considers: (1) whether the instruction correctly states the law;
    (2) whether the evidence supports giving the instruction; and (3) whether any other
    instructions cover the same substance as the excluded instruction. Id.
           In this case, Aslinger’s charge was elevated from a Class B felony to a Class A
    felony solely because he was less than 1,000 feet away from Laurie Park at the time he
    manufactured methamphetamine. During the trial, Aslinger proposed an instruction that
    would permit the jury to find that his offense should not have been enhanced to a Class A
    felony. See Griffin v. State, 
    925 N.E.2d 344
    , 350 (Ind. 2010). Relying on Indiana Code
    section 35-48-4-16, Aslinger’s proposed instruction stated:
                   It is a defense for a person charged with manufacturing
           methamphetamine that the person was briefly in, on, or within one thousand
           (1,000) feet of school property, a public park, a family housing[] complex,
           or a youth program center; and
                   No person under eighteen (18) years of age at least three (3) years
           junior to the person was in, on, or within the one thousand (1,000) feet of the
           school property, public park, family housing complex, or youth program
           center at the time of the offense.
                   The defense under this section applies only to the element of the
           offense that requires proof that the delivery, financing of the delivery, or
           possession of cocaine, a narcotic drug, methamphetamine, or a controlled
           substance occurred in, on, or within one thousand (1,000) feet of school
           property, a public park, a family housing complex, or a youth program center.
    (Appellant’s #152 Br. p. 12). The trial court rejected the instruction, which the State asserts
    was appropriate because the instruction incorrectly states the law and is inapplicable as the
    evidence establishes that Aslinger manufactured methamphetamine within 1,000 feet of
    the park for a greater time than “briefly.” I.C. § 35-48-4-16(b)(1). Before addressing these
    points, we note our finding that none of the given instructions cover the same substance as
    Aslinger’s proposed instruction.
           Aslinger contends that his instruction “track[s] the language of the statute verbatim”
    and is thus “a correct statement of the law.” (Appellant’s #152 Br. p. 6). The State,
    however, argues that the statutory defense “applies only to the possession, delivery, or
    financing the delivery of methamphetamine, and does not apply to the manufacture of
    methamphetamine. . . . The charging information and jury instructions made clear that
    Aslinger was charged only with manufacturing methamphetamine.” (Appellee’s Br. p. 25).
    Contrary to Aslinger’s assertion, his instruction does not replicate the language of the
    statute, which does not mention “manufacturing.” See I.C. § 35-48-4-16. Instead, the
    statute provides that the defense is available for “an offense . . . that requires proof of”
    delivering, financing the delivery of, or possessing methamphetamine. I.C. § 35-48-4-
    16(a) (emphasis added).
           Although it is grounded in manufacturing, the Information precisely charges
    Aslinger with “dealing in methamphetamine.” (Appellant’s #152 App. p. 9). Per Indiana
    Code section 35-48-4-1.1, a conviction for dealing in methamphetamine is not contingent
    on establishing delivery, financing of the delivery, or possession of the drug; it is sufficient
    for a conviction to knowingly manufacture methamphetamine and to do so within 1,000
    feet of a public park. I.C. §§ 35-48-4-1.1(a)(1)(A); -(b)(3)(B)(ii). Additionally, the
    statutory definition of “[m]anufacture” makes no references to delivery, financing a
    delivery, or possession but entails only the “production, preparation, propagation,
    compounding, conversion, or processing of a controlled substance” by means of extraction
    from natural substances or chemical synthesis. I.C. § 35-48-1-18. We thus find that,
    because the statutory defense does not apply to Aslinger’s charge, the instruction
    incorrectly states the law, and the trial court did not abuse its discretion in omitting it.5
                                      B. Appropriateness of Sentence
            Lastly, Aslinger claims that his sentence for dealing methamphetamine is
    inappropriate. Under Indiana Appellate Rule 7(B), this court has the authority to “revise a
    sentence authorized by statute” if we find “the sentence is inappropriate in light of the
    nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B). In
    reviewing a sentence, we “recognize the advisory sentence is the starting point . . . as an
    appropriate sentence for the crime committed.” Spitler v. State, 
    908 N.E.2d 694
    , 696 (Ind.
    Ct. App. 2009) (internal quotation marks omitted), trans. denied.                       To assess the
    appropriateness of the sentence, we review the “nature of the offense” as whether a
    defendant’s actions satisfy the statutory criteria to sustain a conviction, and the “character
    of the offender” as a broad consideration of a defendant’s qualities. Anderson v. State, 
    989 N.E.2d 823
    , 827 (Ind. Ct. App. 2013), trans. denied. For dealing in methamphetamine as
    a Class A felony, the sentencing statute imposes “a fixed term of between twenty (20) and
    fifty (50) years, with the advisory sentence being thirty (30) years.” I.C. § 35-50-2-4. In
    this case, the trial court sentenced Aslinger to thirty-two years (plus a five-year HSO
    enhancement) because it was Aslinger’s third felony and he was on bond and probation at
      Because we find Aslinger’s jury instruction to be an incorrect statement of the law, we need not address
    whether the evidence supports giving the instruction. See Lamagna v. State, 
    776 N.E.2d 955
    , 958-60 &
    nn. 7-9 (Ind. Ct. App. 2002).
    the time of commission. Aslinger concedes that his sentence is authorized by the law but
    nonetheless challenges it as inappropriate.
            With respect to the nature of the offense, Aslinger argues that his charge ordinarily
    would have been a Class B felony, which carries a sentence range of six to twenty years
    and an advisory sentence of ten years, but-for his being within 1,000 feet of a public park.
    According to Aslinger, a Class B felony sentence is more appropriate because the majority
    of his manufacturing process occurred on the country roads of Huntington County and not
    within 1,000 feet of a park. Furthermore, he contends that any manufacturing done within
    1,000 feet of the park “took place in the middle of the night while the park was closed.”
    (Appellant’s #152 Br. p. 9).          The nature of the offense is that Aslinger knowingly
    manufactured methamphetamine, a portion of which occurred next door to a public park,
    and, regardless of whether he had two or ten prior substance offense convictions, he
    satisfied the statutory requisite for an enhancement.
            As to character of the offender, Aslinger argues that two prior felony “convictions
    are [un]related to the present offense[,]”6 and, although his prior misdemeanors
    demonstrate a proclivity for habitual substance abuse, Aslinger asserts that his
    experimentation with drugs and alcohol began at a young age, and he “was receptive to
    court-ordered treatment programs.” (Appellant’s #152 Br. pp. 9-10).                        This court’s
    consideration of a sentence’s appropriateness “turns on our sense of the culpability of the
    defendant, the severity of the crime, the damage done to others, and myriad other factors
      Aslinger’s prior felonies include a conviction for sexual misconduct with a minor in 2002 and failure to
    register as a sex offender in 2010.
    that come to light in a given case.” Cardwell v. State, 
    895 N.E.2d 1219
    , 1224 (Ind. 2008).
    Here, the record demonstrates Aslinger has a significant criminal history and an
    increasingly detrimental pattern of substance abuse. It is also apparent that, despite his
    numerous run-ins with the criminal justice system, Aslinger fails to appreciate the gravity
    of his offenses or the repercussions thereof: not only did he fail to satisfy the conditions
    of an unrelated probation, but, in the instant case, he was arrested for manufacturing
    methamphetamine while released on bond for another methamphetamine charge.
           Notwithstanding the risk to his own well-being, Aslinger manufactured
    methamphetamine without regard for the lives of those around him. Experts testified that
    the volatile nature of the chemicals used in methamphetamine make it dangerous to
    manufacture, but Aslinger was undeterred by the threat of endangerment to his friends in
    the car, the other individuals at the Swan Street house, or possible innocent bystanders in
    the park or a nearby home. Accordingly, we find that Aslinger’s aggregate sentence of
    thirty-seven years, which is less than the maximum sentence authorized for dealing
    methamphetamine as a third substance offense, is not inappropriate in light of the nature
    of the offense and character of the offender.
           Based on the foregoing, we conclude that, the trial court erred in admitting the
    evidence seized in violation of Aslinger’s Fourth Amendment rights and in imposing
    consecutive HSO sentence enhancements; we thus reverse and remand the conviction for
    Case #127. We further conclude that, in Case #152, the trial court did not err in excluding
    Aslinger’s jury instruction, and his sentence for dealing methamphetamine is not
    inappropriate in light of the nature of the offense and character of the offender.
           Affirmed in part, reversed in part, and remanded with instructions.
    KIRSCH, J. concurs
    ROBB, J. concurs with concurring opinion
                                             IN THE
                       COURT OF APPEALS OF INDIANA
    JONATHAN R. ASLINGER,                      )
           Appellant-Defendant,                )
             vs.                               )        No. 35A02-1303-CR-296
    STATE OF INDIANA,                          )
           Appellee-Plaintiff.                 )
    ROBB, Judge, concurring
                   I concur in the majority opinion. However, I write separately regarding the
    search and seizure in Case #127 because I believe the majority’s statement of law
    applicable to the plain view doctrine is too broad.
           The majority notes that “[u]nder the plain view doctrine, a police officer who is
    lawfully in a particular place may seize an item inadvertently discovered, so long as its
    incriminating nature is ‘readily apparent.’” Slip op. at 9. Later, the majority notes that
    based on the Officer’s testimony in this case, it is clear that the incriminating nature of the
    hand-rolled cigarette was not “immediately apparent or instantaneously ascertainable,”
    citing Corwin, 962 N.E.2d at 122. Slip op. at 10. The plurality opinion in Coolidge v.
    New Hampshire, 
    403 U.S. 443
    , 465-70 (1971), set forth three requirements for a
    warrantless seizure pursuant to the plain view doctrine, including that it be “immediately
    apparent” that the item be evidence of a crime. In Texas v. Brown, 
    460 U.S. 730
    , 741
    (1983), however, the Court noted “that the use of the phrase ‘immediately apparent’ was
    very likely an unhappy choice of words, since it can be taken to imply that an unduly high
    degree of certainty as to the incriminatory character of evidence is necessary for an
    application of the ‘plain view’ doctrine.” Instead, “the seizure of property in plain view
    involves no invasion of privacy and is presumptively reasonable, assuming that there is
    probable cause to associate the property with criminal activity.” Id. at 741-42. Probable
    cause is a “flexible, common-sense standard” requiring that the facts available to an officer
    would warrant a man of reasonable caution in believing that an item “may be” contraband
    and does not require any showing that the belief is correct or even that it is more likely true
    than false. Id. at 742. See also State v. Figgures, 
    839 N.E.2d 772
    , 779 (Ind. Ct. App.
    2005) (noting the “immediately apparent” prong does not mean that the officer must
    “know” that an item is contraband but only that he have probable cause to believe so; a
    “‘practical, nontechnical’ probability that incriminating evidence is involved is all that is
    required.”), trans. denied.
           I believe the majority’s analysis of the “immediately apparent” requirement of the
    plain view doctrine could be read to impose too high a bar on an officer in general. That
    the incriminating nature of an object is “immediately apparent” does not mean that the
    officer “absolutely knows” the item is evidence of a crime. Here, the Officer testified he
    had been an officer for approximately fourteen years and had conducted an average of fifty
    drug investigations per year, and he observed a hand-rolled cigarette behind Aslinger’s ear.
    When the Officer asked what it was, Aslinger responded that it was a “B-2 cigarette” –
    some formulations of which are legal and some illegal. If the Officer had also testified that
    in his experience hand-rolled cigarettes are unusual and are often associated with marijuana
    and other illegal substances, or if he had smelled marijuana before he had already seized
    the cigarette and smelled it up close, that might have been sufficient to constitute probable
    cause and meet the “immediately apparent” prong of the plain view doctrine. However,
    because the Officer testified only that he saw a hand-rolled cigarette – which, as the
    majority notes, is not inherently illegal – even under the Texas v. Brown clarification of
    the “immediately apparent” prong, there was no probable cause for seizing the cigarette. I
    therefore concur.