MEMORANDUM DECISION
Case Summary
[1] Ronald M. Diorka appeals his conviction of and sentence for Level 6 felony possession of methamphetamine
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raising two issues for our review: 1) were Diorkas due process rights violated by certain evidence presented by the State; and 2) did the trial court abuse its discretion in failing to find any mitigating factors when sentencing Diorka? Discerning no violation of Diorkas due process rights and no abuse of discretion in sentencing, we affirm.
Facts and Procedural History
[2] In August 2022, Officer Cody Foust from the Medaryville Police Department received an anonymous call about drug activity involving a truck with stickers which said, “Allison & Sons.” Tr. Vol. 2 at 108.
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Officer Foust located the truck at East Pearl Street. He parked down the street and observed three men—later identified as Leo Bremer, Jacob Biedenweg, and Diorka—going in and out of a home. They appeared to be working on the Allison & Sons truck and another vehicle.
[3] Officer Foust began his investigation by speaking to Bremer and Diorka while Biedenweg was inside the home. Officer Foust obtained permission to search the two vehicles. No drugs were found in either vehicle. Officer Foust then obtained permission from Bremer to search the home and asked Bremer who else lived there. Bremer said Biedenweg did. Officer Foust then obtained Biedenwegs permission to search. Officer Foust entered the living room—which appeared to be Biedenwegs room—where he found “some suspected marijuana.” Id. at 112. Officer Foust then entered a purple bedroom. Officer Foust immediately observed a mirror with white residue and a razor blade on the nightstand. Officer Foust testified “[t]ypically those two items together are used to prepare an illegal substance for ingestion into a persons body.” Id. Officer Foust also observed a syringe. Diorka entered the bedroom and Officer Foust asked if it was his room. Diorka said it was. Officer Foust had not known Diorka lived there and did not have Diorkas permission to search the room, so he stopped the search.
[4] Officer Foust detained all three men and requested a search warrant. Once he obtained the warrant, Officer Foust searched Diorkas room and found a prescription bottle labeled as suboxone prescribed to Diorka and another prescription bottle containing a cellophane wrapper with white residue on it. Officer Foust collected the prescription bottle and cellophane and sent it to the Indiana State Police Lab. Testing confirmed the cellophane contained methamphetamine, a controlled substance.
[5] A jury found Diorka guilty of Level 6 felony possession of methamphetamine. The trial court sentenced Diorka to 730 days in the Pulaski County Jail with 365 days executed and 365 days suspended to probation. Additional facts are provided as necessary.
Diorkas due process rights were not violated.
[6] Diorka argues his due process rights were violated because “the States charges were not consistent with the evidence it provided to the jury, and it failed to notify Diorka that it would introduce evidence of other crimes.” Appellants Br. at 6. The evidence to which Diorka refers is Officer Fousts testimony about suspected marijuana in the living room, and the razor blade and white residue on a mirror, syringe, and Suboxone prescription bottle in Diorkas room.
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[7] To begin, we note Diorka failed to object to this evidence at trial on any ground. “Failure to object to the admission of evidence at trial normally results in waiver and precludes appellate review unless its admission constitutes fundamental error.” Whatley v. State, 908 N.E.2d 276, 280 (Ind. Ct. App. 2009), trans. denied. The fundamental error doctrine is extremely narrow. Isom v. State, 170 N.E.3d 623, 651 (Ind. 2021). To be fundamental, the error must be so prejudicial to the defendants rights as to make a fair trial impossible. Willey v. State, 712 N.E.2d 434, 444–45 (Ind. 1999).
[8] First, Diorka claims the State violated his due process rights by introducing evidence “additional and different” from the charge against him, constituting a “material and impermissible variance[.]” Id. at 18. “Defendants have a Due Process right to fair notice of the charge or charges against them, and they are entitled to limit their defense to those matters.” Young v. State, 30 N.E.3d 719, 720 (Ind. 2015). “It is a denial of due process of law to convict an accused of a charge not made.” Patel v. State, 60 N.E.3d 1041, 1053 (Ind. Ct. App. 2016) (quoting Hazlett v. State, 99 N.E.2d 743, 745 (Ind. 1951)). Because the charging information advises a defendant of the accusations against him, the allegations in the pleading and the evidence used at trial must be consistent with one another. Blount v. State, 22 N.E.3d 559, 569 (Ind. 2014). A variance is an essential difference between the two. Id.
[9] A claim of variance is resolved through the sufficiency standard “because the defendants essential argument is the evidence produced at trial so differed from the charging information that it was insufficient to convict him as charged.” Id. at 565. We will not reweigh the evidence or judge the credibility of the witnesses but will “consider and draw reasonable inferences from the evidence that supports the verdict.” Id. Diorka was charged with possession of methamphetamine. Had the State only introduced testimony about suspected marijuana or a white residue on a mirror that was never identified, there may have been a fatal variance. But here, the State introduced evidence showing the substance found on the cellophane wrapper in a bottle in Diorkas room was methamphetamine. There was no variance between the charge of possession of methamphetamine and the States proof.
[10] Next, Diorka claims his due process rights were violated by the States introduction of the evidence without the notice required by Evidence Rule 404. Rule 404 prohibits introduction of certain evidence to prevent the jury from indulging in the forbidden inference that a defendant must be guilty of the charged crime because on other occasions he behaved badly. Fairbanks v. State, 119 N.E.3d 564, 565 (Ind. 2019). The State must provide “reasonable notice of the general nature of any such evidence” it intends to offer at trial upon request by the defendant. Evid. R. 404(b)(2). But a defendant who is not given notice after making a proper request must object to the States evidence at trial to preserve any error for appeal. Hatcher v. State, 735 N.E.2d 1155, 1158 (Ind. 2000).
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And as noted above, Diorka did not object to this evidence on any ground.
[11] Further, Diorka claims the “only reason the State offered this evidence was to show that [he] had a propensity to possess and use drugs.” Appellants Br. at 21. Despite being couched in terms of due process and notice, this is essentially a claim the State improperly introduced character evidence and evidence of other crimes or wrongs. Evidence that might otherwise be precluded by Rule 404 may be admissible “for another purpose,” including knowledge. Evid. R. 404(b)(1) & (2). Here, the State argues the challenged evidence was relevant and admissible to show Diorka constructively possessed methamphetamine.
[12] Constructive possession occurs when a “person has the intent and capability to maintain dominion and control over the item.” Griffin v. State, 945 N.E.2d 781, 783 (Ind. Ct. App. 2011). If the accused has exclusive possession of the premises, an inference is permitted that he knew of the presence of the contraband and had the ability to control it. Id. at 784. If he does not have exclusive control of premises, then the inference is not permitted and proof of additional circumstances showing the defendants knowledge of the contraband and ability to control it is required. Id. The “additional circumstances” can include contraband in plain view, proximity of the defendant to the contraband, and proximity of the contraband to items owned by the defendant. Id.
[13] Because Diorka did not have exclusive control of the house, the State had to present evidence of additional circumstances showing his knowledge of and ability to control the methamphetamine. The State presented evidence of paraphernalia found in the room Diorka claimed as his and a prescription bottle with his name on it found near the methamphetamine. This evidence was relevant to prove Diorka had knowledge of the methamphetamine in his room.
[14] In sum, admitting this evidence was not error for any of the reasons Diorka advances on appeal, let alone fundamental error.
The trial court did not abuse its discretion in sentencing Diorka.
[15] Sentencing decisions are within the trial courts discretion and on appeal are reviewed only for an abuse of discretion. See Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). 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 deduction to be drawn therefrom.” K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006) (quoting In re L.J.M., 473 N.E. 2d 637, 640 (Ind. Ct. App. 1985)). A trial court may abuse its discretion by “entering 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, or the sentencing statement omits reasons that are clearly supported by the record and advanced for consideration, or the reasons given are improper as a matter of law.” Anglemyer, 868 N.E.2d at 490–91. If this Court finds an error, it is appropriate to remand for resentencing if we cannot say with certainty the trial court would have imposed the same sentence had it properly considered the reasons supported in the record. Id. at 491.
[16] Diorka was found guilty of a Level 6 felony, which has a sentencing range of six months to two and one-half years, with an advisory sentence of one year. I.C. § 35-50-2-7(b) (2019). The court found Diorkas extensive history of “15 prior convictions” to be an aggravating factor. Tr. Vol. 2 at 164. The court found no mitigating factors and sentenced Diorka to 730 days in the county jail with 365 days suspended to probation.
[17] Diorka contends the trial court omitted three significant mitigating factors supported by the record in determining his sentence. First, he claims the crime did not cause serious harm to persons or property as the methamphetamine was far removed from anyone. See I.C. § 35-38-1-7.1(b)(1) (2024). Second, Diorka asserts he is likely to respond affirmatively to probation or short-term imprisonment because he acknowledged at a pre-trial status conference he needed to treat his addiction. See Tr. Vol. 2 at 22; I.C. § 35-38-1-7.1(b)(7). And third, Diorka argues imprisonment will result in undue hardship to his four children because he is ordered to pay child support for two of his children in the amount of $85.00 a week. See I.C. § 35-38-1-7.1(b)(10). He contends these three mitigating factors weighed against the one aggravating factor “should have caused [his] sentence to fall below the one-year advisory sentence.” Appellants Br. at 16.
[18] At the sentencing hearing, Diorka cited only his “significant substance abuse troubles” and participation in weekly group counseling to treat his drug use in relation to requesting a drug and alcohol abuse evaluation. Tr. Vol. 2 at 161. Diorka did not mention any of the three factors he now claims should have been considered, and waived the preparation of a presentence investigation report. The trial court does not abuse its discretion in failing to consider a mitigating factor not raised at sentencing. Anglemyer, 868 N.E.2d at 492. Because Diorka did not advance any mitigating factors at the sentencing hearing, it is “presume[d] that the factor is not significant, and the defendant is precluded from advancing it as a mitigating circumstance for the first time on appeal.” Creekmore v. State, 853 N.E.2d 523, 530 (Ind. Ct. App. 2006). Diorka has not shown the trial court abused its discretion in failing to identify and consider any mitigating factors.
Conclusion
[19] Because Diorkas due process rights were not violated and the trial court did not abuse its discretion in sentencing him, we affirm.
[20] Affirmed.
FOOTNOTES
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. Ind. Code § 35-48-4-6.1(a) (2014).
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. Diorka failed to follow Rule 50(B)(1)(e) of the Indiana Rules of Appellate Procedure by including a complete copy of the transcript and exhibits in the Appellants Appendix. An appendix should not include record material already included in the Transcript. Diorka cited to his Appendix for all Transcript cites in his brief; we have cited directly to the Transcript.
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. Diorka alleges the State introduced evidence of “cocaine on a mirror with a razor blade.” Id.; see also id. at 19, 21. This is a mischaracterization of the evidence, as “cocaine” was never mentioned during Diorkas trial—Officer Foust testified only that he saw a “residual white substance” on the mirror. Tr. Vol. 2 at 112.
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. Diorka seems to rely on his general discovery request for the State to “[s]tate fully all the overt acts in furtherance of the crime not specified in the Information or Indictment, on which the prosecution intends to rely at trial” as a request for notice of Rule 404 evidence. Appellants App. Vol. 3 at 19. The defendant has the burden of making a “reasonably understandable and sufficiently clear” request for Rule 404 notice from the State. Hatcher, 735 N.E.2d at 1158 (quotation omitted). Because Diorka did not object when the alleged Rule 404 evidence was offered, however, we need not decide if the discovery request was sufficient to invoke the States obligation to provide such notice.
Kenworthy, Judge.
May, J., and Vaidik, J., concur.