MEMORANDUM DECISION
Case Summary
[1] Following a jury trial, Jason Edward Overton appeals his convictions and sentences for Level 5 felony operating a motor vehicle after forfeiture of license for life,
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Level 5 felony possession of methamphetamine,
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Level 6 felony unlawful possession of a syringe,
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and Class C misdemeanor possession of paraphernalia.
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The jury also found he is a habitual offender.
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On appeal, Overton raises four issues for our review, which we restate as:
(1) Did the trial court commit fundamental error or abuse its discretion in instructing the jury after the jury began deliberating?
(2) Was there sufficient evidence of identity and constructive possession to support Overtons convictions?
(3) Did the trial court abuse its discretion in sentencing by considering his prior criminal history as an aggravator?
(4) Is Overtons sentence inappropriate in light of the nature of his offenses and his character?
We affirm.
Facts and Procedural History
[2] Officer Levi Hoehn of the Mt. Vernon Police Department was on midnight shift patrol in the early hours of January 20, 2023, when he observed a grey Chevy Impala driving around. Finding it “suspicious,” he radioed dispatch with the plate number to verify the registered owner. Tr. Vol. 2 at 156. As he waited for a response, he followed the Impala until it parked in the alley behind 1133 Water Street. Officer Hoehn stopped a few houses down in the alley and watched a man with long brown hair, a brown beard, and dark clothes exit the Impalas drivers side door. The man walked around the east side of the house toward Water Street. Another man—later identified as Clifton Redman—exited the front passengers side door and walked to the west side of the house. Dispatch then relayed the plate matched a white 2006 Pontiac G6. Officer Hoehn activated his lights and parked behind the Impala. Officer Zachary Atkins was also out on patrol, heard the dispatch, and responded to assist. He pulled into the other end of the alley and met up with Officer Hoehn.
[3] Meanwhile, Officer Brandon Woodley, just off the night shift and only a few blocks away, also responded. He drove his police car down Water Street, where he encountered a man with long hair, facial hair, and wearing a red shirt and dark zip-up jacket walking alone on the sidewalk. Officer Woodley recognized him as Overton, and Overton also identified himself to the officer. Because Officer Woodley did not then have any reason to detain Overton, Overton walked off. The officer circled back in front of 1133 Water Street, where he saw Redman sitting on the front porch.
[4] Officers Hoehn and Atkins came around front and questioned Redman, who said Overton had been driving the Impala. Officer Hoehn then requested a driver history through dispatch. Dispatch informed him Overton was not licensed to drive since he was classified as a habitual traffic violator for life. Officer Woodley left to look for Overton to no avail.
[5] Officers Hoehn and Atkins then conducted an inventory search of the Impala before towing it. Inside, Officer Hoehn discovered Overtons wallet, identification card, and a broken glass pipe “commonly used to ingest narcotics or illegal substances” in the center console. Id. at 165. He also found a small neon green bag on the drivers side floorboard containing 0.58 grams of methamphetamine. In a box behind the drivers seat, Officer Hoehn found 5.72 grams of methamphetamine. In the trunk, Officer Hoehn found a tackle box with syringes, glass pipes, and a small scale with a white, crystal-like residue.
[6] Officer Hoehn located Overton several hours later and arrested him. During the arrest, Overton stated, “I had my whole life in that car.” Id. at 175. On his person, the police found two keys and another small neon green bag containing 0.5 grams of methamphetamine.
[7] The State charged Overton with operating a motor vehicle after forfeiture of license for life (“Count 1”), possession of methamphetamine (“Count 2”), possession of a syringe (“Count 3”), and possession of paraphernalia (“Count 4”). The State also alleged Overton was a habitual offender.
[8] The case proceeded to a two-part jury trial on August 24, 2023. After deliberations began at the end of phase one, the jury sent four notes to the trial court. The first note stated, “On Count 1, we are split on guilty, not guilty. We have come to consensus on the other three counts. Do we need to keep deliberating?” Tr. Vol. 3 at 33.
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Because it had been no more than one hour, the parties agreed the trial court would send a note to the jury stating, “the Court instructs you to continue deliberating on Count 1.” Id. at 35.
[9] In the next two notes, the jury asked for clarification about certain evidence, although the third note contained the post-script “update: we are 11 to 1.” Ex. Vol. 4 at 77. In both cases, the trial court instructed the jurors to rely on their memories and notes along with all other evidence presented.
[10] After about three and one-half hours of deliberations, the jury sent a fourth note stating, “The jurors are set in their convictions. We are stuck 11 to 1.” Id. at 78. After hearing the parties’ arguments, the trial court brought the jury into the courtroom and questioned the foreperson about the status of deliberations. The following exchange occurred:
THE COURT: ․ is my understanding correct, maam, that theres been ․ a verdict reached on Counts 2, 3, an[d] 4?
[FOREPERSON]: Yes.
THE COURT: And Count 1 is the only hangup, is that correct?
[FOREPERSON]: Yes.
THE COURT: All right. And if this Court were to instruct the jury to go back upstairs and continue deliberations, do you feel that any continued deliberations are gonna resolve that deadlock?
[FOREPERSON]: Um, we were in the process of reaching an agreement, Id say, yes, but I just would like to double-check.
Tr. Vol. 3 at 52. The trial court then returned the jury to the jury room to continue deliberations “to reach a decision if youre able to do so” and informing them the result “may be the same note that you passed to the Court the last time[.]” Id. at 53.
[11] The jury found Overton guilty of all four counts. The trial proceeded to phase two, after which the jury found Overton was a habitual offender.
[12] During sentencing, the trial court found two aggravators: (1) Overton was out on bond during the commission of these offenses, and (2) Overtons substantial criminal history. It found no mitigators. Finding the aggravators outweighed the mitigators, the trial court sentenced Overton to concurrent terms of six years for operating a motor vehicle after forfeiture of license for life enhanced by six years for being a habitual offender; six years for possession of methamphetamine; two years for possession of a syringe; and sixty days for possession of paraphernalia, for a total twelve years executed in the Indiana Department of Correction.
1. There was no fundamental error, and the trial court did not abuse its discretion in instructing the jury.
[13] Overton argues the trial court abused its discretion in instructing the jury after the jury retired for deliberations. We review a trial courts manner of instructing the jury for an abuse of discretion. Ramirez v. State, 174 N.E.3d 181, 195 (Ind. 2021).
[14] Overton challenges the trial courts first supplemental instruction given after the jury conveyed it was “split” on Count 1 after less than one hour of deliberations. Tr. Vol. 3 at 33. When the parties were discussing how to respond to the jurys first note, the trial court suggested instructing the jury “to keep deliberating until they reach a verdict on Count 1 ․ that is unanimous.” Id. Defense counsel objected to the language “until they reach a verdict,” instead suggesting until they reach a verdict “or you determine you are going to be unable to do that.” Id. at 34. With the parties’ agreement, the trial court settled on the shorter instruction to “continue deliberating on Count 1” without qualification as to when and how deliberations may end. Id. Not only did Overton not object, but defense counsel responded, “All right. No problem with that.” Id. at 35.
[15] Generally, a partys failure to object to an alleged trial error results in waiver of that claim on appeal. Batchelor v. State, 119 N.E.3d 550, 556 (Ind. 2019). But a party can raise an otherwise waived issue through a showing of fundamental error. See Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). The “fundamental error” exception to waiver is “extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” Id. This “formidable standard ․ applies only where the error is so flagrant that the trial judge should have corrected the error on [their] own, without prompting by defense counsel.” Tate v. State, 161 N.E.3d 1225, 1229 (Ind. 2021). The appellant “faces the heavy burden of showing that the alleged errors are so prejudicial to [their] rights as to ‘make a fair trial impossible.’ ” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014) (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002)).
[16] Overton now contends the supplemental instruction amounts to fundamental error because it was an impermissible Allen charge.
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An Allen charge is “an instruction given to urge an apparently deadlocked jury to reach a verdict.” Hero v. State, 765 N.E.2d 599, 604 (Ind. Ct. App. 2002), trans. denied. “Such additional instructions are closely scrutinized to ensure that the court did not coerce the jury into reaching a verdict that is not truly unanimous.” Id.
[17] When reviewing a particular jury instruction for fundamental error, we reverse only if the instructions as a whole misled the jury on the applicable law. Batchelor, 119 N.E.3d at 559. As to unanimity, the trial courts final instructions stated, in relevant part:
To return a verdict, each of you must agree to it. Each of you must decide the case for yourself, but only ․ after considering the evidence with the other jurors. It is your duty to consult with each other. You should try to agree on a verdict, if you can do so without compromising your individual judgment. Do not hesitate to re-examine your own views and change your mind if you believe that you are wrong. But do not give up your honest belief just because the other jurors may disagree, or just to end the deliberations. ․ The foreperson should sign and date the verdicts to which you all agree. Do not sign any verdict form for which there is not unanimous agreement.
Tr. Vol. 3 at 27–28.
[18] The final instructions urged the jury to try to reach a unanimous verdict, but also stated individual jurors should not “give up” just to end deliberations. After receiving the jurys first note, the trial courts instruction to “continue deliberating on Count 1” did not contradict the final instructions, nor was it coercive or misleading. We discern no fundamental error in the trial courts instruction on the first note, especially in the context of the instructions as a whole.
[19] But even if the trial courts instruction on the first note does not amount to fundamental error, Overton argues the trial court abused its discretion in returning the jury to deliberate after receiving the fourth note. After three and one-half hours of deliberation, the jury sent a note to the trial court saying the jurors were “set in their convictions” and the jury was “stuck.” Ex. Vol. 4 at 78. Defense counsel objected to instructing the jury to continue deliberating because the jury had by then stated three times it was struggling to reach a unanimous verdict on Count 1.
[20] If a jury reaches an impasse during deliberations, our jury rules provide a procedure to assist the jury:
If the jury advises the court that it has reached an impasse in its deliberations, the court may, but only in the presence of counsel, and, in a criminal case the parties, inquire of the jurors to determine whether and how the court and counsel can assist them in their deliberative process. After receiving the jurors’ response, if any, the court, after consultation with counsel, may direct that further proceedings occur as appropriate.
Ind. Jury Rule 28.
[21] Here, the trial court followed the procedure outlined in Jury Rule 28. On receiving the fourth note, the trial court brought the jury into the courtroom to inquire about its progress. In response to the trial courts questions, the foreperson stated the jury might reach a unanimous verdict if allowed to continue. Given the forepersons response, the trial court did not abuse its discretion in returning the jury to deliberations. See Treadway v. State, 924 N.E.2d 621, 631–32 (Ind. 2010) (holding there was no error when the trial court instructed the jury to continue deliberating after the jury sent a note indicating a deadlock after six hours of deliberation and the trial court called the jury and the parties into open court, polled the jury, and only one juror thought a verdict may yet be reached).
[22] The trial court did not commit fundamental error or abuse its discretion in instructing the jury after deliberations began.
2. Sufficient evidence supports Overtons convictions.
[23] Overton next challenges the sufficiency of the evidence to support his convictions. A sufficiency-of-the-evidence claim warrants a “deferential standard of appellate review, in which we ‘neither reweigh the evidence nor judge witness credibility[.]’ ” Owen v. State, 210 N.E.3d 256, 264 (Ind. 2023) (quoting Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018), cert. denied). Instead, we respect the fact-finders exclusive province to weigh conflicting evidence. Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018). We consider only the probative evidence and reasonable inferences that support the judgment of the trier of fact. Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024). It is “not necessary that the evidence ‘overcome every reasonable hypothesis of innocence.’ ” Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016) (quoting Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995)).
[24] Overton first argues there was insufficient evidence to identify him as the driver of the Impala. He asserts the “State failed to present any evidence regarding fingerprints or DNA from inside” the car. Appellants Br. at 19. But this is merely a request to reweigh the evidence, which we cannot do. Owen, 210 N.E.3d at 264. He also incorrectly asserts Officer Hoehns testimony was the only evidence presented of his identity. In fact, Officer Woodley also testified he encountered Overton walking on Water Street that evening, just after Officer Hoehn saw the driver walk around the house toward Water Street. Officer Woodley knew Overton, and Overton identified himself to Officer Woodley. When questioned by police, Redman identified Overton as the driver. And the police found Overtons identification card in the Impalas center console. There was ample evidence of Overtons identity as the Impala driver to support his convictions.
[25] In a cursory argument, Overton also contends there was insufficient evidence he possessed the methamphetamine, syringes, and glass pipes found in the Impala. Possession is an element of Counts 2, 3, and 4. See I.C. § 35-48-4-6.1(a) (possession of methamphetamine); I.C. § 16-42-19-18(a) (unlawful possession of a syringe); I.C. § 35-48-4-8.3(b)(1) (possession of paraphernalia).
[26] Overton was not in actual possession of more than five grams of methamphetamine, syringes, or glass pipes when he was arrested. However, “a conviction for a possessory offense does not depend on catching a defendant red-handed.” Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). “When the State cannot show actual possession, a conviction for possessing contraband may rest instead on proof of constructive possession.” Id. A person constructively possesses contraband when he has (1) the capability to maintain dominion and control over the item, and (2) the intent to maintain dominion and control over it. Id. The trier of fact may infer a defendant had the capability and intent to maintain dominion and control over contraband from the simple fact the defendant had a possessory interest in the premises on which an officer found the item. Id. We allow this inference even when that possessory interest is not exclusive. Id. When the possessory interest is not exclusive, the State must support the inference with other circumstances pointing to the defendants knowledge of the presence and nature of the item. Id. at 174–75. These circumstances may include, but are not limited to: “(1) a defendants incriminating statements; (2) a defendants attempting to leave or making furtive gestures; (3) the location of contraband like drugs in settings suggesting manufacturing; (4) the items proximity to the defendant; (5) the location of contraband within the defendants plain view; and (6) the mingling of contraband with other items the defendant owns.” Id. at 175.
[27] Not only was Overton driving the Impala, but he stated when arrested he had his “whole life in that car.” Tr. Vol. 2 at 175. The officers found contraband in the center console, inside a neon green bag on the drivers side floorboard, behind the drivers seat, and in the trunk. They also found a second neon green bag containing methamphetamine on Overtons person. This was sufficient evidence from which the jury could infer he had constructive possession of the items found in the Impala. See Pimentel v. State, 181 N.E.3d 474, 483–84 (Ind. Ct. App. 2022) (holding a defendants possessory interest in the car in which illegal drugs were found, location of contraband in seat where the defendant had been sitting, and existence of other personal items in the car, was sufficient evidence from which a jury could infer defendants constructive possession of items in the car even when the possessory interest was not exclusive).
[28] Sufficient evidence supports Overtons convictions.
3. The trial court did not abuse its discretion in sentencing.
[29] Overton next contends the trial court abused its discretion by considering the same prior criminal history when imposing a sentence above the advisory sentence for a Level 5 felony and imposing the maximum enhancement for his habitual offender adjudication. He argues this “is essentially punishing [him] twice for the same crimes.” Appellants Br. at 21.
[30] Sentencing decisions rest within the sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on rehg, 875 N.E.2d 218 (Ind. 2007). If the sentence is within the statutory range, we review it only for an abuse of discretion. Id. An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances before the trial court or the reasonable, probable, and actual deductions drawn therefrom. Id.
[31] The sentencing range for a Level 5 felony is between one and six years, with an advisory sentence of three years. I.C. § 35-50-2-6 (2014). For a person convicted of a Level 5 felony and found to be a habitual offender, the court shall impose an additional fixed term between two and six years. I.C. § 35-50-2-8(i)(2). The trial court sentenced Overton to six years for Level 5 felony operating a motor vehicle after forfeiture of license for life enhanced by six years for being a habitual offender.
[32] Overtons habitual offender adjudication was based on a 2018 Level 5 felony conviction for operating a vehicle after forfeiture of license for life,
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and a 2007 Class C felony conviction for carrying a handgun without a license.
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Even if the trial court relied on these offenses both as an aggravator for his Level 5 felony sentence and to support his habitual offender finding, the sentence imposed would not be a double enhancement of Overtons sentence. Pedraza v. State, 887 N.E.2d 77, 80 (Ind. 2008) (“[W]hen a trial court uses the same criminal history as an aggravator and as support for a habitual offender finding, it does not constitute impermissible double enhancement of the offenders sentence.”).
[33] More importantly, Overton has an extensive criminal history consisting of twenty-two felonies and fifteen misdemeanor convictions. The trial court could have relied on any of his prior convictions, or any combination of them, as an aggravating factor for either his Level 5 felony sentence or his sentence on the habitual offender enhancement. We discern no abuse of discretion in the trial courts use of Overtons extensive criminal history to support imposing sentences ultimately within the statutory range.
4. Overtons sentence is not inappropriate.
[34] Last, Overton asks us to revise his sentence. The Indiana Constitution authorizes this Court to review and revise a trial courts sentencing decision as provided by rule. Ind. Const. art. 7, § 6. Indiana Appellate Rule 7(B) provides we may revise a sentence authorized by statute if, “after due consideration of the trial courts decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” The principal role of appellate review is to leaven the outliers, not to achieve a perceived correct sentence in each case. Conley v. State, 183 N.E.3d 276, 288 (Ind. 2022). Therefore, “we reserve our 7(B) authority for exceptional cases.” Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019) (per curiam).
[35] “[S]entencing is principally a discretionary function in which the trial courts judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). “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 defendants character (such as substantial virtuous traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The two prongs of 7(B) review are “separate inquires to ultimately be balanced in determining whether a sentence is inappropriate.” Lane v. State, 232 N.E.3d 119, 126 (Ind. 2024) (quoting Conner v. State, 58 N.E.3d 215, 218 (Ind. Ct. App. 2016)). “[T]o the extent the evidence on one prong militates against relief, a claim based on the other prong must be all the stronger to justify relief.” Id. at 127.
[36] The question “is not whether another sentence is more appropriate; rather, the question is whether the sentence imposed is inappropriate.” Helsley v. State, 43 N.E.3d 225, 228 (Ind. 2015) (quoting King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008)) (emphasis omitted). Whether we regard a sentence as inappropriate “turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell, 895 N.E.2d at 1224. The defendant bears the burden of persuading us a revised sentence is warranted. See Hall v. State, 177 N.E.3d 1183, 1197 (Ind. 2021).
[37] Overton argues his offenses were no more egregious than the “typical” versions of the offense, and thus sentences above the advisory are unjustified. Appellants Br. at 23. But Overtons argument ignores his substantial criminal history. His thirty-seven prior convictions speak poorly of his character. When balancing the nature of Overtons offenses against his character, we see no reason to disturb the trial courts sentencing decision. Overtons sentence is not inappropriate.
Conclusion
[38] The trial court did not abuse its discretion in instructing the jury. Sufficient evidence supports Overtons convictions. The trial court did not abuse its discretion in sentencing Overton, nor was his sentence inappropriate.
[39] Affirmed.
FOOTNOTES
1
. Ind. Code § 9-30-10-17(a)(1) (2019).
2
. I.C. § 35-48-4-6.1(a) (2014).
3
. I.C. § 16-42-19-18(a) (2015).
4
. I.C. § 35-48-4-8.3(b)(1) (2015).
5
. I.C. § 35-50-2-8(a) (2017).
6
. Overton states in his brief the jury sent the first note after approximately twenty minutes of deliberation. See Appellants Br. at 12. Based on our review, it is unclear exactly when the jury sent its first note, but it was within the first hour of deliberations. In any case, it was sufficiently soon that the trial court responded “obviously, its the Courts position that the jury would need to keep deliberating[.]” Tr. Vol. 3 at 33. Although the other three jury notes are in the appellate record, the trial court sent the first note back with its response and therefore the note is not in the record. See id. at 41.
7
. See Allen v. U.S., 164 U.S. 492 (1896).
8
. See trial court cause number 65D01-1806-F5-271, decided August 21, 2018, in Posey County.
9
. See trial court cause number 65C01-0704-FC-52, decided July 9, 2007, in Posey County.
Memorandum Decision by Judge Kenworthy
Judges May and Vaidik concur.
May, J., and Vaidik, J., concur.