Maurice Webster 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 Aug 30 2018, 9:50 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Valerie K. Boots Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Maurice Webster, August 30, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-336 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Stanley E. Kroh, Appellee-Plaintiff Magistrate Trial Court Cause No. 49G03-1705-F5-18429

Crone, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-336 | August 30, 2018 Page 1 of 10

Case Summary [1] Maurice Webster appeals his convictions, following a jury trial, for level 5

felony leaving the scene of an accident resulting in death and class C

misdemeanor operating a vehicle with a schedule I or II controlled substance or

its metabolite in the body. He contends that the State presented insufficient

evidence to support his class C misdemeanor conviction. He also asserts that

the trial court abused its discretion during sentencing and that his five-year

aggregate sentence, with one year suspended to probation, is inappropriate in

light of the nature of the offenses and his character. Finding the evidence

sufficient, no abuse of discretion, and that Webster has not met his burden to

show that his sentence is inappropriate, we affirm.

Facts and Procedural History [2] On May 13, 2017, beginning at 4:30 p.m., Webster was at his brother’s house.

While there, he drank four beers. He smoked marijuana at around 7:00 p.m.

He left his brother’s house around 8:30 p.m. At approximately 9:45 p.m.,

Webster was driving his truck north in the far-right lane around the 2300 block

of Illinois Street in downtown Indianapolis. As he was approaching 24th

Street, Webster noticed that the two cars in front of him were slowing down.

Webster did not slow down, but instead moved over into the left lane to pass

the other vehicles. Webster’s vehicle struck ninety-year-old Marion Jones as

she was crossing the street. Although he knew he had hit a pedestrian, Webster

did not stop but instead drove to his daughter’s house which was nearby. The

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other motorists remained at the scene and called 911. Jones died at the scene

from her injuries caused by the accident. [3] After the accident, Webster bought a pint of vodka and walked around the

canal drinking. At around 3:00 a.m. the next morning, Webster turned himself

in to authorities at the Marion County Jail. He was transported to Eskenazi

Hospital, where he consented to a blood draw. Subsequent testing of his blood

indicated the presence of THC and its metabolite. [4] The State charged Webster with level 5 felony leaving the scene of an accident

resulting in death, level 5 felony driving while suspended, class C misdemeanor

operating a vehicle with a schedule I or II controlled substance or its metabolite

in the body, and class C misdemeanor operating a vehicle while intoxicated.

Prior to trial, the State dismissed the driving while suspended charge. A jury

trial was held on December 7 and 8, 2017. At the close of the State’s evidence,

the State dismissed the operating while intoxicated charge. The jury found

Webster guilty of the remaining two charges. The trial court sentenced Webster

to five years executed with one year suspended to probation for level 5 felony

leaving the scene of an accident resulting in death. The court imposed a

concurrent sentence of sixty days for the class C misdemeanor operating a

vehicle with a schedule I or II controlled substance or its metabolite in the

body. This appeal ensued.

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Discussion and Decision

Section 1 – The State presented sufficient evidence to support Webster’s conviction for operating a vehicle with a schedule I or II controlled substance or its metabolite in the body. [5] Webster first contends that the State presented insufficient evidence to support

his conviction for class C misdemeanor operating a vehicle with a schedule I or

II controlled substance or its metabolite in his body. When reviewing a claim

of insufficient evidence, we neither reweigh the evidence nor assess witness

credibility. Bell v. State, 31 N.E.3d 495, 499 (Ind. 2015). We look to the

evidence and reasonable inferences drawn therefrom that support the

conviction, and will affirm if there is probative evidence from which a

reasonable factfinder could have found the defendant guilty beyond a

reasonable doubt. Id. In short, if the testimony believed by the trier of fact is

enough to support the conviction, then the reviewing court will not disturb it.

Id. at 500. [6] Regarding the challenged conviction, the State was required to prove that

Webster operated a vehicle with a controlled substance listed in schedule I or

schedule II of Indiana Code Section 35-48-2 or its metabolite in his body. Ind.

Code § 9-30-5-1(c). The parties stipulated that the active ingredient in

marijuana, THC, is listed as a schedule I controlled substance. Webster

concedes that the State presented evidence that a blood test conducted five to

six hours after the accident showed the presence of THC and its metabolite in

his blood. Webster maintains, however, that the State presented insufficient

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evidence that such substances were in his body when he operated a vehicle. We

disagree. [7] Webster admitted in his own trial testimony that he smoked marijuana at his

brother’s house earlier in the evening before the accident. In addition, Sergeant

Michael Duke testified that he interviewed Webster at the hospital just prior to

the blood draw and that, in response to a specific question regarding whether he

had ingested any alcohol or drugs, Webster told Sergeant Duke that he drank

beer and smoked marijuana at his brother’s house before the accident. Webster

also told Sergeant Duke that he walked around drinking vodka after the

accident. [8] On appeal, Webster argues that the State failed to present toxicology evidence

connecting the marijuana he smoked before the accident to the THC and its

metabolite detected in his blood five to six hours after the accident, and thus

there is no evidence that he had THC or its metabolite in his body when he was

driving. Indeed, Webster argues that his trial testimony suggests that he also

smoked marijuana after the accident1 and that it could have been THC and its

metabolite from this marijuana that was detected in his blood. However,

Webster made no claim to Sergeant Duke that he also smoked marijuana after

the accident. It was the jury’s prerogative to resolve any conflicts in the

1 Webster’s testimony in this regard was equivocal at best. When specifically asked by his own counsel if he smoked marijuana after the accident, Webster replied, “I don’t recall.” Tr. Vol. 3. at 30. When asked again about whether he also smoked marijuana while he was walking around drinking alcohol after the accident, Webster testified, “I probably took a hit of something. I’m not quite sure.” Id.

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evidence and to judge the credibility of Webster’s trial testimony in light of his

statement on the night of the accident. See McAlpin v. State, 80 N.E.3d 157, 163

(Ind. 2017) (noting that we trust juries to make inferential decisions and to sort

out conflicting evidence in searching for the truth) (citations omitted). Based on

the evidence presented, the jury could reasonably infer that the THC and its

metabolite detected in Webster’s blood five to six hours after the accident was

from marijuana that he admitted to smoking prior to the accident, and therefore

was in his blood at the time he was driving. There is sufficient evidence to

support Webster’s conviction for operating a vehicle with a schedule I or II

controlled substance or its metabolite in his body.

Section 2 – The trial court did not abuse its discretion during sentencing. [9] Webster next argues that the trial court abused its discretion during sentencing.

Sentencing decisions rest within the sound discretion of the trial court and are

reviewed only 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. An abuse of discretion occurs

if the 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. A trial court abuses its discretion if it:

(1) fails “to enter a sentencing statement at all”; (2) enters “a sentencing

statement that explains reasons for imposing a sentence—including a finding of

aggravating and mitigating factors if any—but the record does not support the

reasons”; (3) enters a sentencing statement that “omits reasons that are clearly

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supported by the record and advanced for consideration”; or (4) considers

reasons that “are improper as a matter of law.” Id. at 490-91. However, the

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

should have been found, is not subject to review for abuse of discretion. Id. [10] The trial court found Webster’s remorse and the undue hardship his

incarceration would place on his children to be mitigating factors. He claims

that the court abused its discretion in failing to also find his act of turning

himself in after the accident, albeit delayed, to be mitigating factor. It is well

settled that a trial court is under no obligation to explain why a proposed

mitigator does not exist or why the court gave it insignificant weight. Sandleben

v. State, 22 N.E.3d 782, 796 (Ind. Ct. App. 2014), trans. denied (2015). It is

understandable here why the trial court may not have found Webster’s

surrender to be a significant mitigating factor. As noted by the State, by the

time Webster turned himself in several hours after the accident, authorities had

already obtained information from eyewitnesses who stayed on the scene, were

able to locate Webster’s vehicle, and were able to determine that it had been

involved in the accident. Thus, Webster’s prosecution was inevitable and not

necessarily facilitated by him. Moreover, Webster’s conscious decision to wait

several hours before going to authorities caused undue evidentiary problems for

the State because of the delayed testing of Webster’s blood for alcohol and

controlled substances, prompting the State’s dismissal of the operating while

intoxicated charge. Under the circumstances, the trial court did not abuse its

discretion in failing to find Webster’s act to be a significant mitigating factor.

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Section 3 – Webster has not met his burden to demonstrate that his sentence is inappropriate. [11] Webster also claims that his sentence is inappropriate and invites this Court to

reduce it pursuant to Indiana Appellate Rule 7(B), which provides that we may

revise a sentence authorized by statute if, after due consideration of the trial

court’s decision, we find that the sentence “is inappropriate in light of the

nature of the offense and the character of the offender.” The defendant bears

the burden to persuade this Court that his or her sentence is inappropriate.

Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Indiana’s flexible

sentencing scheme allows trial courts to tailor an appropriate sentence to the

circumstances presented, and the trial court’s judgment “should receive

considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).

The principal role of appellate review is to attempt to “leaven the outliers.” Id.

at 1225. Whether we regard a sentence as inappropriate at the end of the day

turns on “our sense of the culpability of the defendant, the severity of the crime,

the damage done to others, and myriad other facts that come to light in a given

case.” Id. at 1224. [12] We consider all aspects of the penal consequences imposed by the trial court in

sentencing the defendant, including whether a portion of the sentence is ordered

suspended “or otherwise crafted using any of the variety of sentencing tools

available to the trial judge.” Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.

2010). In conducting our review, we do not look to see whether the defendant’s

sentence is appropriate or “if another sentence might be more appropriate;

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rather, the question is whether the sentence imposed is inappropriate.” Fonner

v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). [13] Regarding the nature of the offense, the advisory sentence is the starting point

that the legislature has selected as an appropriate sentence for the crime

committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range

for a level 5 felony is between one and six years, with the advisory sentence

being three years. Ind. Code § 35-50-2-6(b). The trial court here imposed a

five-year sentence, with one year suspended to probation for the level 5 felony.2 [14] Webster argues that the nature of his offense, leaving the scene of a fatal

accident, was not especially egregious and thus he was not deserving of a

sentence above the advisory. However, it is undisputed that Webster operated

a vehicle after consuming alcohol and smoking marijuana, and he struck a

pedestrian, resulting in horrific injuries and death. We are not persuaded that

the nature of this offense warrants sentence reduction. [15] We are similarly unpersuaded after a review of Webster’s character. The

character of the offender is found in what we learn of the offender’s life and

conduct. Croy v. State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). Included in

the assessment of a defendant’s character is a review of his criminal history.

Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied (2016).

A record of arrests is also relevant to a trial court’s assessment of the

2 Webster does not address the appropriateness of his concurrent sixty-day sentence for his class C misdemeanor, and neither do we.

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defendant’s character. Cotto v. State, 829 N.E.2d 520, 528 (Ind. 2005). Webster

has a lengthy criminal history spanning almost thirty years. While not replete

with serious crimes or a significant number of convictions, his numerous arrests

show a clear pattern of alcohol and substance abuse. Webster admits to regular

marijuana use, and in the instant case, rather than stay at the scene of the

accident and offer his assistance, he selfishly fled and drank a pint of vodka.

Webster’s conduct does not reflect positively on his character. In sum, he has

not met his burden to demonstrate that the sentence imposed by the trial court

is inappropriate in light of the nature of the offenses or his character. [16] Affirmed.

Najam, J., and Pyle, J., concur.

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