George Neloms v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 13 2017, 6:32 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 Ana M. Quirk Curtis T. Hill, Jr. Muncie, Indiana Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

George Neloms, December 13, 2017 Appellant-Defendant, Court of Appeals Case No. 18A05-1705-CR-1007 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Marianne Vorhees, Appellee-Plaintiff. Judge Trial Court Cause No. 18C01-1605-F3-19

Bailey, Judge. Court of Appeals of Indiana | Memorandum Decision 18A05-1705-CR-1007 | December 13, 2017 Page 1 of 8

Case Summary [1] Following a bench trial, George Neloms (“Neloms”) was convicted of

Possession of a Narcotic Drug, as a Level 3 felony. 1 He now appeals. [2] We affirm.

Issues [3] Neloms presents the following restated issues:

I. Whether there is sufficient evidence to support his conviction; and

II. Whether the trial court abused its sentencing discretion.

Facts and Procedural History [4] On May 6, 2016, Neloms was traveling in a van with William Jackson

(“Jackson”) and James Tabb (“Tabb”). During the trip, Neloms ingested

heroin, and Tabb eventually received a call from someone seeking to purchase

heroin in Muncie. Jackson drove to the planned location of the sale, and Tabb

sold heroin from the back of the van. Meanwhile, Officer Tyler Swain (“Officer

Swain”) of the Muncie Police Department was conducting surveillance as part

of an ongoing narcotics investigation concerning Tabb. Officer Swain later

1 Ind. Code §§ 35-48-4-6(a), -4-6(d)(1).

Court of Appeals of Indiana | Memorandum Decision 18A05-1705-CR-1007 | December 13, 2017 Page 2 of 8

requested assistance with stopping the van, and officers Keith Benbow (“Officer

Benbow”) and Richard Howell, Jr. (“Officer Howell”) responded. [5] Officer Howell initiated a stop, and Jackson pulled over. As Officer Howell

began approaching the van, Jackson drove off and stopped again about thirty

yards down the road. All three officers then drew their guns and approached

the van, with Officer Howell moving toward the driver’s door and Officer

Swain and Officer Benbow approaching the passenger side. Jackson again

drove off, at which point Officer Swain leapt onto the van’s running boards and

fired his gun through a side window. The van swerved to the left, and Officer

Swain tumbled to the ground. Both Officer Howell and Officer Benbow

checked on Officer Swain, who motioned to them to keep pursuing the van. [6] By the time Officer Howell and Officer Benbow reached the van, they found it

stopped and unoccupied. Nearby, they saw Neloms, who was lying partly in

the road and partly in the grass. Officer Howell left to pursue Jackson and

Tabb, while Officer Benbow approached Neloms. Officer Benbow saw Neloms

holding several plastic bags in his left hand, and Officer Benbow removed the

bags while checking Neloms for weapons and for injury. Officer Benbow then

arrested Neloms, and Officer Howell eventually arrested Tabb and secured

Court of Appeals of Indiana | Memorandum Decision 18A05-1705-CR-1007 | December 13, 2017 Page 3 of 8

Jackson, who had been shot in the arm. It was later determined that the plastic

bags collectively contained more than 28 grams of heroin.2 [7] The State charged Neloms with Possession of a Narcotic Drug, as a Level 3

felony, and Resisting Law Enforcement, as a Class A misdemeanor.3 At the

beginning of a bench trial on February 21, 2017, the trial court dismissed the

misdemeanor count upon the State’s motion, and Neloms was later found

guilty of the felony narcotics charge. Following a sentencing hearing, the trial

court imposed a nine-year sentence, and recommended that Neloms be placed

in the Purposeful Incarceration program through the Indiana Department of

Correction.

Discussion and Decision Sufficiency of the Evidence [8] When reviewing the sufficiency of evidence to support a conviction, we look

only at the probative evidence and reasonable inferences supporting the

conviction. Love v. State, 73 N.E.3d 693, 696 (Ind. 2017). We neither reweigh

the evidence nor assess the credibility of witnesses, and “will affirm the

2 At trial, the parties jointly proffered an exhibit to establish the weight and identity of the substance in the bags. 3 I.C. § 35-44.1-3-1(a)(3).

Court of Appeals of Indiana | Memorandum Decision 18A05-1705-CR-1007 | December 13, 2017 Page 4 of 8

conviction unless no reasonable fact-finder could find the elements of the crime

proven beyond a reasonable doubt.” Id. [9] To convict Neloms of Possession of a Narcotic Drug as charged, the State was

obligated to prove beyond a reasonable doubt that Neloms knowingly or

intentionally possessed at least 28 grams of heroin. See I.C. §§ 35-48-4-6(a), -4-

6(d)(1). At trial, Officer Benbow testified that he found Neloms holding three

plastic bags, and it was later determined that those bags contained more than 28

grams of heroin. Moreover, Neloms admitted to ingesting heroin in the van,

and to being present while heroin was sold from the van. Although Neloms

now directs us to conflicting testimony, our standard of review precludes us

from reweighing the evidence. Rather, there is sufficient evidence to support

the conviction.

Abuse of Discretion [10] Neloms contends that the trial court abused its discretion in imposing a

sentence of nine years, which is the advisory sentence for a Level 3 felony. See

I.C. § 35-50-2-5(b). Sentencing decisions are within the discretion of the trial

court and are reviewed on appeal for an abuse of discretion. Anglemyer v. State,

868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007).

As a general matter, an advisory sentence is a “guideline sentence” selected by

our legislature, I.C. § 35-50-2-1.3, and “we view the advisory sentence as a

helpful guidepost for ensuring fairness, proportionality, and transparency in

sentencing.” Hamilton v. State, 955 N.E.2d 723, 726 (Ind. 2011). Moreover, we

Court of Appeals of Indiana | Memorandum Decision 18A05-1705-CR-1007 | December 13, 2017 Page 5 of 8

have observed “that a defendant should bear a particularly heavy burden to

prove that a trial court abused its discretion by imposing an advisory sentence.”

Golden v. State, 862 N.E.2d 1212, 1216 (Ind. Ct. App. 2007), trans. denied. [11] A trial court abuses its sentencing discretion if its decision is clearly against the

logic and effect of the facts and circumstances before the court, or the

reasonable, probable, and actual deductions to be drawn therefrom. Id. In

sentencing a defendant, the trial court must enter a sentencing statement that

includes “reasonably detailed reasons or circumstances for imposing a

particular sentence,” id. at 491, and Indiana Code Section 35-38-1-7.1 provides

a non-exhaustive list of potential aggravating or mitigating circumstances.

“The reasons given, and the omission of reasons arguably supported by the

record, are reviewable on appeal for abuse of discretion,” however “[t]he

relative weight or value assignable to reasons properly found or those which

should have been found is not subject to review for abuse.” Anglemyer, 868

N.E.2d at 491. Moreover, if the trial court has abused its sentencing discretion,

we will remand only “if we cannot say with confidence that the trial court

would have imposed the same sentence had it properly considered reasons that

enjoy support in the record.” Id. [12] Neloms first argues that the trial court abused its sentencing discretion by

failing to identify a particular mitigating circumstance: that Neloms had

requested drug treatment. Where, as here, a sentencing statement “includes a

finding of aggravating or mitigating circumstances, then the statement must

identify all significant mitigating and aggravating circumstances and explain why

Court of Appeals of Indiana | Memorandum Decision 18A05-1705-CR-1007 | December 13, 2017 Page 6 of 8

each circumstance has been determined to be mitigating or aggravating. Id. at

490 (emphasis added). Nevertheless, the trial court is not obligated to explain

why it has not found a circumstance to be significant. See id. at 493. Moreover,

when the defendant alleges that the trial court improperly failed to identify a

particular mitigating factor, the defendant must “establish that the mitigating

evidence is both significant and clearly supported by the record.” Id. [13] Here, the trial court expressly declined to treat the circumstances of Neloms’s

addiction as a mitigating factor, observing that Neloms “could have addressed

his drug issues voluntarily or while on supervised probation” in an Illinois case

involving possession of a controlled substance. App. Vol. III at 24. Moreover,

the trial court observed that Neloms has “a long history with heroin and has

had many opportunities to rehabilitate himself” but “has not taken advantage of

them.” Id. Thus, we cannot say that the trial court abused its discretion when

it did not consider the treatment requests to be a significant mitigating factor. [14] Neloms next argues that the trial court improperly identified drug dealing as an

aggravating circumstance when the trial court made the following remark: “The

nature of the offense supports at least the advisory sentence. Dealing drugs and

possessing large quantities of drugs presents a danger to the community.” Id.

Neloms points out that he “was never charged with dealing drugs” and that

“[t]here was no evidence presented during the trial that [he] was engaged in

dealing drugs.” Appellant’s Br. at 24.

Court of Appeals of Indiana | Memorandum Decision 18A05-1705-CR-1007 | December 13, 2017 Page 7 of 8 [15] We note that the trial court did not include this statement in its enumerated list

of “Circumstances Supporting an Enhanced Sentence,” App. Vol. III at 23, and

appears to have made the observational remark while balancing the factors and

evaluating the appropriateness of the advisory sentence. Nonetheless, even if

the trial court attributed aggravating weight to the particularized circumstances

of the crime, it would not have been improper to do so. See I.C. § 35-38-1-7.1

(providing a non-exhaustive list of matters the trial court may consider in

determining a sentence). Indeed, the trial court’s statement was accurate, in

that Neloms was present during a drug transaction that led to a dangerous

pursuit—a pursuit during which Officer Swain was thrown from a moving van,

Jackson was shot, and Neloms was left lying by the road holding bags of

heroin. Thus, we are not persuaded that the trial court abused its discretion by

remarking about the circumstances of the crime.

Conclusion [16] The evidence is sufficient to support the conviction. The trial court did not

abuse its sentencing discretion. [17] Affirmed.

Kirsch, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A05-1705-CR-1007 | December 13, 2017 Page 8 of 8