Devon W. Kyle v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 30 2020, 9:55 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
Donald R. Shuler Curtis T. Hill, Jr.
Barkes, Kolbus, Rife & Shuler, LLP Attorney General of Indiana
Goshen, Indiana
Steven J. Hosler
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Devon W. Kyle, December 30, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-1217
v. Appeal from the
Elkhart Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. Gretchen S. Lund, Judge
Trial Court Cause No.
20D04-1903-F5-57
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020 Page 1 of 21
[1] Devon W. Kyle (“Kyle”) appeals his convictions and sentence for operating a
motor vehicle after forfeiture of license for life 1 as a Level 5 felony, possession
of marijuana2 as a Class B misdemeanor, possession of a synthetic drug or
synthetic drug lookalike substance3 as a Class A misdemeanor, operating a
vehicle while intoxicated4 as a Class C misdemeanor, and refusal to identify
self5 as a Class C misdemeanor. Kyle raises the following issues for our review:
I. Whether the evidence was insufficient to support his
convictions for operating a motor vehicle after forfeiture of
license for life and possession of a synthetic drug lookalike
substance; and
II. Whether his sentence is inappropriate based on the nature
of the offenses and his character.
[2] We affirm.
Facts and Procedural History
[3] On the night of March 6, 2019, Elkhart Police Department Patrol Sergeant
Drew Neese (“Officer Neese”) was on patrol in downtown Elkhart. Tr. Vol. 2 at
38-39. Officer Neese was heading east while stopped at an intersection when he
1
See Ind. Code § 9-30-10-17(a)(1).
2
See Ind. Code § 35-48-4-11(a)(1).
3
See Ind. Code § 35-48-4-11.5(c).
4
See Ind. Code § 9-30-5-2(a).
5
See Ind. Code § 34-28-5-3.5.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020 Page 2 of 21
observed a green Buick coming from the west that had its high beams on. Id.Officer Neese flicked his lights “two [] or three [] times” to alert the Buick to
dim its lights; however, the Buick’s lights, rather than dimming, were briefly
turned off completely before being turned back on with its high beams. Id. at
39-40. As the Buick left the intersection, Officer Neese did not see it swerve or
cross the center line, but due to the high beam lights, Officer Neese initiated a
traffic stop, and the Buick immediately pulled over. Id. at 40, 81-82.
[4] Officer Neese asked the driver and passenger for identification, and around the
same time, Elkhart Police Department Corporal Jared Davies (“Officer
Davies”) arrived as back-up. Id. at 41-42, 131-32. The driver did not have
physical identification but said his name was LaRon Kyle and provided a date
of birth. Id. at 42. Officer Neese noted that the driver’s eyes were “kind of
glassy and bloodshot[,]” and he could smell the odor of alcoholic beverages
coming from the driver’s breath. Id. at 43. Officer Neese noticed that the driver
was “squinting,” which he thought was “kind of uncharacteristic because of the
cold weather.” Id. He also observed that the driver’s speech was slurred and
that he was visibly sweating in the twenty-degree weather. Id. at 44. Officer
Neese ran the name LaRon Kyle and the date of birth the driver provided
through a computer search in his patrol car, but the picture for LaRon Kyle did
not match the driver of the Buick. Id. at 45. Officer Neese returned to the
Buick and asked the driver for a social security number. Id. at 46. The driver
provided two different social security numbers. Id. Officer Neese returned to
his patrol car to run the two social security numbers on the computer, located a
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020 Page 3 of 21
picture of the driver on the computer that matched Kyle, went back to the
driver’s vehicle, and, after smelling the odor of raw marijuana on Kyle, asked
him to step out of the vehicle and placed him under arrest. Id. at 46-47.
[5] Officer Davies performed a search of Kyle incident to his arrest and found a bag
of what appeared to be marijuana and an additional three bags of a plant-like
substance that appeared to resemble marijuana. Id. at 144-45; State’s Exs. 3, 4.
The four bags were weighed and field-tested using the Duquenois-Levine
reagent test kits; the single bag of what appeared to be marijuana indicated the
presence of THC and weighed twelve grams while the three bags of plant-like
substance did not indicate the presence of THC and weighed a total of ten
grams. Tr. Vol. 2 at 147, 150, 156. In the meantime, Officer Neese searched
Kyle’s driving record in the Indiana Bureau of Motor Vehicles (“BMV”)
through his computer in his patrol car. Id. at 47. Neese saw that Kyle’s license
status was listed as “[h]abitual traffic violator for life.” Id. at 71.
[6] Office Davies took Kyle to the Elkhart Police Department detention center
where he attempted to administer a portable breath test to Kyle. Id. at 76. Kyle
was unable to complete the test either due to his failure to follow instructions or
to give a sample that registered on the machine. Id. at 77-78. Because of the
inability to get a reading from the portable breath test, Officer Davies had Kyle
perform three field sobriety tests: the horizontal gaze nystagmus test, the nine-
step walk-and-turn test, and the one-leg stand test. Id. at 78, 179, 183, 188.
Kyle failed each field sobriety test, which Officer Davies concluded was
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consistent with intoxication. Id. at 182, 187, 190. Kyle was read Indiana’s
implied consent law and refused a certified test. Id. at 192-93.
[7] On March 7, 2019, the State charged Kyle with Level 5 felony operating a
motor vehicle after forfeiture of license for life, Class B misdemeanor possession
of marijuana, Class A misdemeanor possession of a synthetic drug or synthetic
drug lookalike substance, Class C misdemeanor operating a vehicle while
intoxicated, and Class C misdemeanor refusal to identify self. 6 Appellant’s App.
Vol. 2 at 20.
[8] The trial court held a jury trial on February 17 and 18, 2020. Id. at 10-11. At
trial, over Kyle’s objection, the trial court admitted into evidence a certified
copy of Kyle’s driving record from the BMV and a redacted version of Kyle’s
BMV record. Tr. Vol. 2 at 71; State’s Ex. 1, 1(a). The redacted version of Kyle’s
certified driving record, State’s Exhibit 1(a), was published to the jury.7 Tr. Vol.
2 at 71. Officer Neese testified that the redacted exhibit identified Kyle and that
it showed his license status as an habitual traffic violator for life. Id. at 71-72.
Officer Neese acknowledged that a certified record may still contain errors. Id.6
On February 5, 2020, the trial court granted the State’s motion to amend the charging information to add
an alternative spelling of Kyle’s first name. Appellant’s App. Vol. 2 at 9-10, 43-45.
7
The unredacted version, which was also admitted into evidence but was not published to the jury, indicates
that Kyle’s suspension was for an offense occurring on August 24, 2009 that resulted in a felony conviction
on September 13, 2010 for operating a vehicle as an habitual traffic violator. State’s Ex. 1 at 6, 8, 13, 16. The
State sought to publish the redacted version to avoid any references to Kyle’s prior convictions, including the
September 13, 2010 conviction under Indiana Code section 9-30-10-16, which, at the time, resulted in a
forfeiture of his driving privileges for life. Tr. Vol. 2 at 66-67; see Ind. Code § 9-30-10-16(c) (2009) (“In
addition to any criminal penalty, a person who is convicted of a felony under subsection (a) forfeits the
privilege of operating a motor vehicle for life.”).
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020 Page 5 of 21
at 93. Officer Davies testified that, when searching Kyle incident to his arrest,
he found one bag of marijuana, which he immediately recognized as marijuana
based on his training and experience and its distinct odor and appearance, and
another “three (3) additional bags of a plant-like substance” on Kyle. Id. at 145-
46; State’s Ex. 3, 4. He stated that the single bag indicated the presence of THC,
while the three additional bags did not. Id. at 150, 156. He testified that based
on his training and experience the substance in the three bags was “[a] synthetic
lookalike substance” because it was meant to be “consumed in the same way as
marijuana; it looks similar to marijuana, but it has different chemical makeup
than marijuana.” Id. at 157. Office Davies also indicated that the three small
bags were packaged similar to marijuana, which suggested that it was intended
to be consumed like marijuana. Id. at 153-55, 217-18. Officer Davies explained
that a synthetic drug or a synthetic drug lookalike substance has a “very sweet
type [of] smell” that is “similar to potpourri,” which is different from the
“distinct odor” of marijuana. Id. at 136. Officer Davies testified that he did not
know the chemical makeup of the substance in the three bags because they were
not sent to the Indiana State Police Laboratory for testing and acknowledged
that without testing of the substance’s chemical composition he could not
visually differentiate between a synthetic drug and a synthetic drug lookalike
substance. Id. at 209-10, 225-26.
[9] At the conclusion of the trial, the jury found Kyle guilty as charged. Tr. Vol. III
at 20-21. The trial court held a sentencing hearing on June 10, 2020. Appellant’s
App. Vol. 2 at 12-13. The trial court heard argument from Kyle’s counsel and
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the State and was able to review Kyle’s presentence investigation report
(“PSI”). In sentencing Kyle, the trial court found in mitigation that Kyle had
lived a significant time without engaging in criminal activity and that he had
taken responsibility for his actions. Tr. Vol. III at 35-36. In aggravation, the
trial court found that Kyle had previous violations of the conditions of
community supervision in the past and had a history of criminal activity. Id.As to his Level 5 felony conviction for operating a motor vehicle after forfeiture
of license for life, the trial court observed that he arrived at his habitual traffic
violator status due to “a number of [d]riving [w]hile [l]icense [s]uspended
previous convictions” and that the advisory sentence of three years on that
conviction was “appropriate.” Id. at 36. Kyle’s sentence was as follows: three
years executed in alternative placement through community corrections for
operating a motor vehicle after forfeiture of license for life with one year
suspended; 180 days for Class B misdemeanor possession of marijuana; one
year for Class A misdemeanor possession of a synthetic drug or synthetic drug
lookalike substance; sixty days for Class C misdemeanor operating a vehicle
while intoxicated; and sixty days for Class C misdemeanor refusal to identify
self. Tr. Vol. III at 36-37; Appellant’s App. Vol. 2 at 130-33. Kyle’s sentences
were all ordered to run concurrently. Id. Kyle now appeals.
Discussion and Decision
I. Sufficiency of the Evidence
[10] Kyle argues that the evidence was insufficient to sustain his convictions for
Level 5 felony operating a vehicle with a lifetime suspension and Class A
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020 Page 7 of 21
misdemeanor possession of a synthetic drug or synthetic drug lookalike
substance. When reviewing the sufficiency of the evidence needed to support a
criminal conviction, we neither reweigh evidence nor judge witness credibility.
Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the
evidence supporting the judgment and any reasonable inferences that can be
drawn from such evidence.” Id. We will affirm if there is substantial evidence
of probative value such that a reasonable trier of fact could have concluded the
defendant was guilty beyond a reasonable doubt. Id.[11] We first address Kyle’s argument regarding the sufficiency of the evidence for
his conviction of Level 5 felony operating a vehicle with a lifetime suspension.
At the time, he committed the offense, the statute provided, in pertinent part,
that a “person who . . . operates a motor vehicle after the person’s driving
privileges are forfeited for life under section 16 of this chapter . . . commits a
Level 5 felony.” Ind. Code § 9-30-10-17(a).8 To obtain a conviction under this
section, the State must prove only two elements: (1) “that the defendant
operated a motor vehicle”; and (2) “that the defendant’s driving privileges had
been forfeited for life.” Brock v. State, 955 N.E.2d 195, 204-05 (Ind. 2011)
(quoting Pierce v. State, 737 N.E.2d 1211, 1213-14 (Ind. Ct. App. 2000), trans.
denied). See also Ford v. State, 711 N.E.2d 86, 88 (Ind. Ct. App. 1999), trans.
denied.
8
Indiana Code section 9-30-10-17 was amended in 2019 by Public Law No.184-2019, SECTION. 7. The
amendments to the statute do not have any effect on the outcome of this appeal.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020 Page 8 of 21
[12] Citing Chastain v. State, 58 N.E.3d 235, 238 (Ind. Ct. App. 2016) for the
proposition that penal statutes “must be strictly construed against the State[,]”
Kyle argues that the State’s evidence, a certified copy of Kyle’s driving record
from the BMV, established only that Kyle’s driving privileges were suspended
for 199 years as opposed to forfeiture for life as required by statute. He
contends that only the certification page of Kyle’s certified driving record lists
his driver’s license status as suspended for life. According to Kyle, this renders
the State’s evidence “insufficient as a matter of law,” and his conviction for the
offense should be vacated. Appellant’s Br. at 13.
[13] We agree with Kyle that penal statutes must be construed against the State. We
disagree with Kyle that application of that principle to his case renders the
State’s evidence insufficient to convict him. Here, as evidence that Kyle’s
driving privileges were forfeited for life, the jury had before it a redacted version
of Kyle’s certified driving record.9 Contrary to his contention that the sole
9
Indiana Code section 9-30-3-15 provides that a certified computer printout of the relevant portions of the
defendant's driving record is prima facie evidence of a prior conviction. That statute provides as follows:
In a proceeding, prosecution, or hearing where the prosecuting attorney must prove that the
defendant had a prior conviction for an offense under this title, the relevant portions of a
certified computer printout or electronic copy as set forth in IC 9-14-3-4 made from the records
of the bureau are admissible as prima facie evidence of the prior conviction. However, the
prosecuting attorney must establish that the document identifies the defendant by the
defendant’s driving license number or by any other identification method utilized by the bureau.
Ind. Code § 9-30-3-15; see also Brock v. State, 955 N.E.2d 195, 205 (Ind. 2011); Pierce v. State, 737 N.E.2d 1211,
1214 (Ind. Ct. App. 2000), trans. denied. Kyle cites to trial testimony that a certified record may still contain
erroneous information, that the redacted exhibit contained a different driver’s license number, but neither
Kyle nor the transcript indicate where that error appears, and he does not contend on appeal that the
redacted exhibit otherwise fails to identify him. Tr. Vol. 2 at 93.
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reference to his driver’s license status being listed as suspended for life occurs on
the certification page of the redacted exhibit, the first page of the exhibit, titled
“Indiana Official Driver Record,” specifically states “License status:
HABITUAL TRAFFIC VIOLATOR – LIFE.” State’s Ex. 1(a) at 30. The
redacted exhibit removed any reference to Kyle’s prior conviction but listed a
suspension with an effective date of September 13, 2010 and an expiration date
of September 13, 2299 and that the notice of suspension was mailed on
September 20, 2010. Id. at 32. The redacted exhibit included the corresponding
mailing of the notice of suspension from the BMV informing Kyle that his
driving privileges were suspended for a period of 199 years “effective
9/13/2010 through 9/13/2299.” Id. at 39. It also included a document titled,
“How to Read [a BMV] Official Driver Record,” applicable to driver’s record
printouts printed after June 30, 2016, noting that a driver’s license status with
the designation “HABITUAL TRAFFIC VIOLATOR – LIFE” indicated that
the driver’s “[d]riving privileges are forfeited for life as a habitual traffic
violator[.]” Id. at 48. Kyle’s argument is an invitation for us to reweigh the
evidence, which we cannot do. See Bailey, 907 N.E.2d at 1005. A reasonable
jury reviewing the information contained within the redacted exhibit could
conclude that Kyle’s driving privileges were suspended for life. The State’s
evidence was sufficient to support Kyle’s conviction for Level 5 felony
operating a vehicle with a lifetime suspension.
[14] We next address the sufficiency of the evidence for Kyle’s conviction of Class A
misdemeanor possession of a synthetic drug lookalike substance. Kyle
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contends that the State failed to present sufficient evidence to show that the
substance found on his person was a synthetic drug lookalike substance. At the
time Kyle committed the offense, and before the statute that criminalized the
offense was repealed on July 1, 2019, Indiana Code section 35-48-4-11.510
provided, in pertinent part that “[a] person who knowingly or intentionally
possesses a synthetic drug or synthetic drug lookalike substance commits
possession of a synthetic drug or synthetic drug lookalike substance, a Class A
misdemeanor.” The statute also provided that a “‘synthetic drug lookalike
substance’ has the meaning set forth in I.C. 35-31.5-2-321.5(a)(2).” Ind. Code §
35-48-4-11.5. At the time Kyle committed the offense, Indiana Code section
35-31.5-2-321.511 provided as follows:
(a) “Synthetic drug lookalike substance”, except as provided in
subsection (b), means one (1) or more of the following:
(1) A substance, other than a synthetic drug, which any of the
factors listed in subsection (c) would lead a reasonable person to
believe to be a synthetic drug.
(2) A substance, other than a synthetic drug:
(A) that a person knows or should have known was intended to
be consumed; and
10
This section was repealed by Public Law No. 80-2019, SECTION 30.
11
This section was repealed by Public Law No. 80-2019, SECTION 15.
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(B) the consumption of which the person knows or should have
known to be intended to cause intoxication.
(b) The term “synthetic drug lookalike substance” does not
include the following:
(1) Food and food ingredients (as defined in IC 6-2.5-1-20).
(2) Alcohol (as defined in IC 7.1-1-3-4).
(3) A legend drug (as defined in IC 16-18-2-199).
(4) Tobacco.
(5) A dietary supplement (as defined in IC 6-2.5-1-16).
(c) In determining whether a substance is a synthetic drug
lookalike substance, the following factors may be considered:
(1) The overall appearance of a dosage unit of the substance,
including its shape, color, size, markings or lack of markings,
taste, consistency, and any other identifying physical
characteristics.
(2) How the substance is packaged for sale or distribution,
including the shape, color, size, markings or lack of markings,
and any other identifying physical characteristics of the
packaging.
(3) Any statement made by the owner or person in control of the
substance concerning the substance’s nature, use, or effect.
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(4) Any statement made to the buyer or recipient of the substance
suggesting or implying that the substance is a synthetic drug.
(5) Any statement made to the buyer or recipient of the substance
suggesting or implying that the substance may be resold for
profit.
(6) The overall circumstances under which the substance is
distributed, including whether:
(A) the distribution included an exchange of, or demand for,
money or other property as consideration; and
(B) the amount of the consideration was substantially greater
than the reasonable retail market value of the substance the seller
claims the substance to be.
A “synthetic drug” is defined with reference to chemical compounds and
includes any chemical compound determined to be a synthetic drug by rule
adopted by the Indiana board of pharmacy. See Ind. Code § 35-31.5-2-321.
[15] Kyle appears to argue that without testing the substance the State could not
show that it was a synthetic drug because its chemical composition was
unknown. He contends that Officer Davies’s testimony alone could not
establish that the substance was a synthetic drug lookalike substance because it
had never been tested to confirm its identity and Officer Davies acknowledged
minute observable differences between a synthetic drug and a synthetic drug
lookalike substance.
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[16] In Yoakum v. State, another panel of this court addressed the sufficiency of the
evidence for a conviction under Indiana Code section 35-48-4-11.5 95 N.E.3d
169, 173 (Ind. Ct. App. 2018), trans. denied. The defendant in that case argued
the State’s evidence was insufficient to prove that the substance was a synthetic
lookalike substance because there was no scientific testing of the substance, and
the officers’ testimony did not establish that the substance was a synthetic drug
lookalike substance. Id. at 174. We rejected the defendant’s arguments,
explaining:
“For offenses involving controlled substances, the State is not
required to introduce the subject contraband to obtain a
conviction for dealing or possession.” Boggs v. State, 928 N.E.2d
855, 865 (Ind. Ct. App. 2010), trans. denied. The identity of a
controlled substance may be established through witness
testimony and circumstantial evidence. Helton v. State, 907
N.E.2d 1020, 1024 (Ind. 2009). Our [S]upreme [C]ourt has held
that, although “chemical analysis is one way, and perhaps the
best way, to establish the identity of a compound,” the testimony
of “someone sufficiently experienced with the drug may establish
its identity, as may other circumstantial evidence.” Vasquez v.
State, 741 N.E.2d 1214, 1216 (Ind. 2001).
Id. at 175. In affirming the defendant’s conviction for knowing or intentional
possession of a synthetic drug lookalike substance, we noted that the officers
testified that they had experience recognizing synthetic marijuana and that the
recovered substance looked like synthetic marijuana, smelled like synthetic
marijuana, and was packaged in a ripped plastic baggie. Id.Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020 Page 14 of 21
[17] Here, Officer Davies stated that a synthetic drug or a synthetic drug lookalike
substance has a “very sweet type [of] smell” that is “similar to potpourri” and
different from the “distinct odor” of marijuana. Id. at 136. When trying to
differentiate marijuana from a synthetic drug or a synthetic drug lookalike
substance, Officer Davies testified that “they look similar in appearance” but “if
you put them side-by-side, there’s a noticeable difference,” but “you look for the
color – whether it’s green, brown. It’s a plant-like material as well, but it is
finely chopped up, it’s not a [sic] leafy or kept in buds like marijuana is.” Id. at
137. Officer Davies testified that he found one bag of marijuana 12 and “three
(3) additional bags of a plant-like substance” on Kyle. Tr. Vol. II at 145; State’s
Ex. 3, 4.
[18] Officer Davies testified that the three bags of plant-like substance recovered
from Kyle’s pants pocket appeared visually similar to marijuana in that it was a
brown-green plant like substance, but that it was finely chopped and had a
potpourri smell that he had explained was typical of synthetic drugs and
synthetic drug lookalike substances. Id. at 136, 153; State’s Ex. 4. Officer
Davies did not believe that the substance in the three bags was marijuana but
field-tested the three bags for THC and none contained THC. Id. at 156. As to
the substance’s chemical composition, Officer Davies testified that he did not
12
Officer Davies testified he was able to determine that the bag was marijuana based on his experience and
training, describing the substance as “a brown, green, leafy substance” that had a “distinct and pungent”
odor. Tr. Vol. II at 146. The substance also field-tested positive for THC, the active ingredient in marijuana.
Id. at 150.
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know the chemical makeup of the substance in the three bags because they were
not sent to the Indiana State Police Laboratory for testing. Id. at 209-10. He
also acknowledged that without testing of the substance’s chemical
composition, he could not visually differentiate between a synthetic drug and a
synthetic drug lookalike substance. Id. at 225-26. However, he testified that
based on his training experience the substance in the three bags was “[a]
synthetic lookalike substance” because it was meant to be “consumed in the
same way as marijuana; it looks similar to marijuana, but it has different
chemical makeup than marijuana.” Id. at 157. Office Davies also indicated
that the three small bags were packaged similar to marijuana, which suggested
that it was intended to be consumed like marijuana. Id. at 153-55, 217-18. As
noted, while chemical analysis may establish the identity of a substance, it is
not always necessary, where, as here, the jury heard Officer Davies’ testimony
regarding the substance and saw the exhibits depicting both the marijuana and
the synthetic drug lookalike substance and determined that it was a synthetic
drug lookalike substance. See Vasquez, 741 N.E.2d at 1216; Yoakum, 95 N.E.3d
at 175. The State’s evidence was sufficient to demonstrate that Kyle knowingly
or intentionally possessed a synthetic drug lookalike substance; therefore, the
evidence was sufficient to sustain his conviction.
II. Inappropriate Sentence
[19] Kyle next contends that his sentence is inappropriate in light of the nature of the
offense and his character. Pursuant to Indiana Appellate Rule 7(B), this court
“may revise a sentence authorized by statute if, after due consideration of the
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trial court’s decision, the [c]ourt finds that the sentence is inappropriate in light
of the nature of the offense and the character of the offender.” Whether a
sentence is inappropriate turns on our sense of the culpability of the defendant,
the severity of the crime, the damage done to others, and other factors that
come to light in a given case. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.
2008). We defer to the trial court’s decision, and our goal is to determine
whether the appellant’s sentence is inappropriate, not whether some other
sentence would be more appropriate. Conley v. State, 972 N.E.2d 864, 876 (Ind.
2012). “Such deference should prevail unless overcome by compelling evidence
portraying in a positive light the nature of the offense (such as accompanied by
restraint, regard, and lack of brutality) and the defendant’s character (such as
substantial virtuous traits or persistent examples of good character).” Stephenson
v. State, 29 N.E.3d 111, 122 (Ind. 2015). When we review a sentence, we seek
to leaven the outliers, not to achieve a perceived correct result. Cardwell, 895
N.E.2d at 1225. On appeal, it is the defendant’s burden to persuade us that the
sentence imposed by the trial court is inappropriate. Shell v. State, 927 N.E.2d
413, 422 (Ind. Ct. App. 2010).
[20] The advisory sentence is the starting point the legislature has selected as an
appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,
1019 (Ind. 2012). A reviewing court is thus “unlikely to consider an advisory
sentence inappropriate.” Shelby v. State, 986 N.E.2d 345, 371 (Ind. Ct. App.
2013), trans. denied. Rather, the defendant “bears a particularly heavy burden in
persuading us that his sentence is inappropriate when the trial court imposes the
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advisory sentence.” Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App,
2011), trans. denied. Here, Kyle was sentenced on his conviction for Level 5
felony operating a vehicle after forfeiture of license for life to three years with
two years executed in alternative placement through community corrections
and one year suspended to probation. Appellant’s App. Vol. 2 at 130-34; Tr. Vol.
III at 36-37. Kyle’s sentences on his misdemeanor convictions were all ordered
to be served concurrently to his Level 5 felony conviction; thus, Kyle received
an aggregate sentence of three years. Id. Kyle’s Level 5 felony offense carries
an advisory sentence of three years with a sentencing range of one to six years.
Ind. Code § 35-30-2-6. Kyle received the advisory sentence for his Level 5
felony conviction.
[21] As to the nature of his offense, Kyle argues that his offense was “unremarkable”
and “mundane” in that, while he was driving while suspended, he was not
driving erratically and was generally cooperative, and his offense did not result
in violence or physical harm to any person or property. Appellant’s Br. at 17.
The nature of the offense is found in the details and circumstances of the
commission of the offense and the defendant’s participation. Perry v. State, 78
N.E.3d 1, 13 (Ind. Ct. App. 2017). The nature of Kyle’s offense shows that he
was not observed to be driving erratically and was initially pulled over for
failure to dim his bright lights. Tr. Vol. II at 38-40, 81-82. Kyle’s offense did
not involve violence or result in physical harm to any person or property.
When Kyle was pulled over and was approached by Officer Neese, Kyle
provided false information as to his identity, which inhibited the investigation,
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drove while intoxicated, and possessed contraband, albeit in relatively small
amounts. Id. at 41-47, 144-45, 147, 150, 156-57, 182, 187, 190. We cannot say
that Kyle’s sentence was inappropriate in light of the nature of the offense.
[22] As to his character, Kyle argues that his criminal history “consists of operating
offenses and misdemeanors” and, when coupled with the favorable aspects of
his character, should result in revision of his sentence. Appellant’s Br. at 18.
“The character of the offender is shown by the offender’s life and conduct.”
Croy v. State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). When considering the
character of the offender, one relevant fact is the defendant’s criminal history.
Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013).
[23] Here, the trial court identified Kyle’s history of criminal or delinquent activity
in aggravation, and it also noted that Kyle’s last conviction occurred
approximately ten years before the instant conviction. Tr. Vol. III at 35. Kyle,
who was thirty-seven at the time of sentencing, had accumulated adult criminal
convictions which included Class A misdemeanor theft, Class C felony armed
robbery, Class D felony theft, Class C felony burglary, and Class A
misdemeanor domestic battery in the presence of a child under the age of
sixteen. Appellant’s Conf. App. Vol. 2 at 110-12. Kyle had also previously
violated the terms of community supervision. Id. at 111; Tr. Vol. III at 29, 35.
In addition, Kyle compiled an extensive list of traffic violations, including three
convictions for operating a vehicle without ever receiving a license, one
conviction for driving while suspended, and a conviction for operating a vehicle
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020 Page 19 of 21
as an habitual traffic violator on September 13, 2010.13 Appellant’s Conf. App.
Vol. 2. at 110-13. The trial court noted that Kyle took responsibility for his
actions and that a significant length of time had elapsed between his most
recent criminal conviction and the instant convictions, which the trial court
determined reflected favorably on him. It also observed that despite the length
of the time between convictions Kyle had attained his habitual traffic violator
status due to “a number of [d]riving [w]hile [l]icense [s]uspended previous
convictions.” Id. at 36. Although we acknowledge that Kyle’s volunteering at
the Boy’s and Girl’s Club and his employment history are favorable factors, we
cannot say that Kyle has met his burden to show that his three-year sentence is
inappropriate in light of his character. 14 See Fernbach, 954 N.E.2d at 1089(noting that the burden to show a sentence is inappropriate is “particularly
heavy” when the trial court imposes the advisory sentence).
13
Kyle cites Douglas v. State, 878 N.E.2d 873 (Ind. Ct. App. 2007), Ruiz v. State, 818 N.E.2d 927 (Ind. 2004)
and Westmoreland v. State, 787 N.E.2d 1005 (Ind. Ct. App. 2003) in support of his position that his sentence is
inappropriate in light of his character. We note that in those cases courts revised enhanced or maximum
sentences to the presumptive sentences on the basis of time between criminal convictions or criminal history
that was minor or dissimilar to the particular conviction. Douglas, 878 N.E.2d at 881, Ruiz, 818 N.E.2d at
929-30, Westmoreland, 787 N.E.2d at 1011-12. Here, Kyle received the advisory sentence (the equivalent to
the presumptive sentence under the old sentencing scheme) and not an enhanced sentence. Therefore, we do
not find those cases persuasive.
14
To the extent Kyle contends that the principles behind Sanquenetti v. State, 917 N.E.2d 1287 (Ind. Ct. App.
2009) support a revision of his sentence, we disagree. In Sanquenetti, we revised a defendant’s four-year
advisory sentence for Class C felony nonsupport of a dependent child to two years, holding that because
certain portions of the defendant’s support arrearage accrued within the timeframe for which she had already
been charged, convicted, and sentenced, it was error to consider those portions again when assessing the
nature of the offense for sentencing purposes. 917 N.E.2d at 1290-92. We cannot say that Sanquetti supports
a revision of Kyle’s sentence.
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[24] Affirmed.
Bradford, C.J., and May, J., concur.
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