Aslinger v. State

• Decision Date: 23 January 2014
• Docket Number: No. 35A02–1303–CR–296.,35A02–1303–CR–296.
• Citation: 2 N.E.3d 84
• Parties: Johnathon R. ASLINGER, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

2 N.E.3d 84

Johnathon R. ASLINGER, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 35A02–1303–CR–296.

Court of Appeals of Indiana.

Jan. 23, 2014.

Jeremy K. Nix, Casey C. Morgan, Matheny Hahn Denman & Nix, LLP, Huntington, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

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 methamphetamme, 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 methamphetamme, a Class A felony, I.C. § 35–48–4–1.1 (Case # 152).

We affirm in part, reverse in part, and remand.

ISSUES

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 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 bond.

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 methamphetamme. 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 methamphetamme 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...