Devon W. Kyle 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 30 2020, 9:55 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
Donald R. Shuler Cu

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                   FILED
regarded as precedent or cited before any                                           Dec 30 2020, 9:55 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
Donald R. Shuler                                        Curtis T. Hill, Jr.
Barkes, Kolbus, Rife & Shuler, LLP                      Attorney General of Indiana
Goshen, Indiana
                                                        Steven J. Hosler
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Devon W. Kyle,                                          December 30, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        20A-CR-1217
        v.                                              Appeal from the
                                                        Elkhart Superior Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     Gretchen S. Lund, Judge
                                                        Trial Court Cause No.
                                                        20D04-1903-F5-57




Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020              Page 1 of 21
[1]   Devon W. Kyle (“Kyle”) appeals his convictions and sentence for operating a

      motor vehicle after forfeiture of license for life 1 as a Level 5 felony, possession

      of marijuana2 as a Class B misdemeanor, possession of a synthetic drug or

      synthetic drug lookalike substance3 as a Class A misdemeanor, operating a

      vehicle while intoxicated4 as a Class C misdemeanor, and refusal to identify

      self5 as a Class C misdemeanor. Kyle raises the following issues for our review:


                 I.       Whether the evidence was insufficient to support his
                          convictions for operating a motor vehicle after forfeiture of
                          license for life and possession of a synthetic drug lookalike
                          substance; and


                 II.      Whether his sentence is inappropriate based on the nature
                          of the offenses and his character.


[2]   We affirm.


                                         Facts and Procedural History
[3]   On the night of March 6, 2019, Elkhart Police Department Patrol Sergeant

      Drew Neese (“Officer Neese”) was on patrol in downtown Elkhart. Tr. Vol. 2 at

      38-39. Officer Neese was heading east while stopped at an intersection when he




      1
          See Ind. Code § 9-30-10-17(a)(1).
      2
          See Ind. Code § 35-48-4-11(a)(1).
      3
          See Ind. Code § 35-48-4-11.5(c).
      4
          See Ind. Code § 9-30-5-2(a).
      5
          See Ind. Code § 34-28-5-3.5.


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020   Page 2 of 21
      observed a green Buick coming from the west that had its high beams on.

Id. Officer Neese flicked

his lights “two [] or three [] times” to alert the Buick to

      dim its lights; however, the Buick’s lights, rather than dimming, were briefly

      turned off completely before being turned back on with its high beams.

Id. at 39-40.

As the Buick left the intersection, Officer Neese did not see it swerve or

      cross the center line, but due to the high beam lights, Officer Neese initiated a

      traffic stop, and the Buick immediately pulled over.

Id. at 40, 81-82. [4]

  Officer Neese asked the driver and passenger for identification, and around the

      same time, Elkhart Police Department Corporal Jared Davies (“Officer

      Davies”) arrived as back-up.

Id. at 41-42, 131-32.

The driver did not have

      physical identification but said his name was LaRon Kyle and provided a date

      of birth.

Id. at 42.

Officer Neese noted that the driver’s eyes were “kind of

      glassy and bloodshot[,]” and he could smell the odor of alcoholic beverages

      coming from the driver’s breath.

Id. at 43.

Officer Neese noticed that the driver

      was “squinting,” which he thought was “kind of uncharacteristic because of the

      cold weather.”

Id. He also observed

that the driver’s speech was slurred and

      that he was visibly sweating in the twenty-degree weather.

Id. at 44.

Officer

      Neese ran the name LaRon Kyle and the date of birth the driver provided

      through a computer search in his patrol car, but the picture for LaRon Kyle did

      not match the driver of the Buick.

Id. at 45.

Officer Neese returned to the

      Buick and asked the driver for a social security number.

Id. at 46.

The driver

      provided two different social security numbers.

Id. Officer Neese returned

to

      his patrol car to run the two social security numbers on the computer, located a

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020   Page 3 of 21
      picture of the driver on the computer that matched Kyle, went back to the

      driver’s vehicle, and, after smelling the odor of raw marijuana on Kyle, asked

      him to step out of the vehicle and placed him under arrest.

Id. at 46-47. [5]

  Officer Davies performed a search of Kyle incident to his arrest and found a bag

      of what appeared to be marijuana and an additional three bags of a plant-like

      substance that appeared to resemble marijuana.

Id. at 144-45;

State’s Exs. 3, 4.

      The four bags were weighed and field-tested using the Duquenois-Levine

      reagent test kits; the single bag of what appeared to be marijuana indicated the

      presence of THC and weighed twelve grams while the three bags of plant-like

      substance did not indicate the presence of THC and weighed a total of ten

      grams. Tr. Vol. 2 at 147, 150, 156. In the meantime, Officer Neese searched

      Kyle’s driving record in the Indiana Bureau of Motor Vehicles (“BMV”)

      through his computer in his patrol car.

Id. at 47.

Neese saw that Kyle’s license

      status was listed as “[h]abitual traffic violator for life.”

Id. at 71. [6]

  Office Davies took Kyle to the Elkhart Police Department detention center

      where he attempted to administer a portable breath test to Kyle.

Id. at 76.

Kyle

      was unable to complete the test either due to his failure to follow instructions or

      to give a sample that registered on the machine.

Id. at 77-78.

Because of the

      inability to get a reading from the portable breath test, Officer Davies had Kyle

      perform three field sobriety tests: the horizontal gaze nystagmus test, the nine-

      step walk-and-turn test, and the one-leg stand test.

Id. at 78, 179, 183, 188.

      Kyle failed each field sobriety test, which Officer Davies concluded was



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020   Page 4 of 21
      consistent with intoxication.

Id. at 182, 187, 190.

Kyle was read Indiana’s

      implied consent law and refused a certified test.

Id. at 192-93. [7]

  On March 7, 2019, the State charged Kyle with Level 5 felony operating a

      motor vehicle after forfeiture of license for life, Class B misdemeanor possession

      of marijuana, Class A misdemeanor possession of a synthetic drug or synthetic

      drug lookalike substance, Class C misdemeanor operating a vehicle while

      intoxicated, and Class C misdemeanor refusal to identify self. 6 Appellant’s App.

      Vol. 2 at 20.


[8]   The trial court held a jury trial on February 17 and 18, 2020.

Id. at 10-11.

At

      trial, over Kyle’s objection, the trial court admitted into evidence a certified

      copy of Kyle’s driving record from the BMV and a redacted version of Kyle’s

      BMV record. Tr. Vol. 2 at 71; State’s Ex. 1, 1(a). The redacted version of Kyle’s

      certified driving record, State’s Exhibit 1(a), was published to the jury.7 Tr. Vol.

      2 at 71. Officer Neese testified that the redacted exhibit identified Kyle and that

      it showed his license status as an habitual traffic violator for life.

Id. at 71-72.

      Officer Neese acknowledged that a certified record may still contain errors.

Id. 6

       On February 5, 2020, the trial court granted the State’s motion to amend the charging information to add
      an alternative spelling of Kyle’s first name. Appellant’s App. Vol. 2 at 9-10, 43-45.
      7
        The unredacted version, which was also admitted into evidence but was not published to the jury, indicates
      that Kyle’s suspension was for an offense occurring on August 24, 2009 that resulted in a felony conviction
      on September 13, 2010 for operating a vehicle as an habitual traffic violator. State’s Ex. 1 at 6, 8, 13, 16. The
      State sought to publish the redacted version to avoid any references to Kyle’s prior convictions, including the
      September 13, 2010 conviction under Indiana Code section 9-30-10-16, which, at the time, resulted in a
      forfeiture of his driving privileges for life. Tr. Vol. 2 at 66-67; see Ind. Code § 9-30-10-16(c) (2009) (“In
      addition to any criminal penalty, a person who is convicted of a felony under subsection (a) forfeits the
      privilege of operating a motor vehicle for life.”).

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020                   Page 5 of 21
      at 93. Officer Davies testified that, when searching Kyle incident to his arrest,

      he found one bag of marijuana, which he immediately recognized as marijuana

      based on his training and experience and its distinct odor and appearance, and

      another “three (3) additional bags of a plant-like substance” on Kyle.

Id. at 145- 46;

State’s Ex. 3, 4. He stated that the single bag indicated the presence of THC,

      while the three additional bags did not.

Id. at 150, 156.

He testified that based

      on his training and experience the substance in the three bags was “[a] synthetic

      lookalike substance” because it was meant to be “consumed in the same way as

      marijuana; it looks similar to marijuana, but it has different chemical makeup

      than marijuana.”

Id. at 157.

Office Davies also indicated that the three small

      bags were packaged similar to marijuana, which suggested that it was intended

      to be consumed like marijuana.

Id. at 153-55, 217-18.

Officer Davies explained

      that a synthetic drug or a synthetic drug lookalike substance has a “very sweet

      type [of] smell” that is “similar to potpourri,” which is different from the

      “distinct odor” of marijuana.

Id. at 136.

Officer Davies testified that he did not

      know the chemical makeup of the substance in the three bags because they were

      not sent to the Indiana State Police Laboratory for testing and acknowledged

      that without testing of the substance’s chemical composition he could not

      visually differentiate between a synthetic drug and a synthetic drug lookalike

      substance.

Id. at 209-10, 225-26. [9]

  At the conclusion of the trial, the jury found Kyle guilty as charged. Tr. Vol. III

      at 20-21. The trial court held a sentencing hearing on June 10, 2020. Appellant’s

      App. Vol. 2 at 12-13. The trial court heard argument from Kyle’s counsel and

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020   Page 6 of 21
       the State and was able to review Kyle’s presentence investigation report

       (“PSI”). In sentencing Kyle, the trial court found in mitigation that Kyle had

       lived a significant time without engaging in criminal activity and that he had

       taken responsibility for his actions. Tr. Vol. III at 35-36. In aggravation, the

       trial court found that Kyle had previous violations of the conditions of

       community supervision in the past and had a history of criminal activity.

Id. As to his

Level 5 felony conviction for operating a motor vehicle after forfeiture

       of license for life, the trial court observed that he arrived at his habitual traffic

       violator status due to “a number of [d]riving [w]hile [l]icense [s]uspended

       previous convictions” and that the advisory sentence of three years on that

       conviction was “appropriate.”

Id. at 36.

Kyle’s sentence was as follows: three

       years executed in alternative placement through community corrections for

       operating a motor vehicle after forfeiture of license for life with one year

       suspended; 180 days for Class B misdemeanor possession of marijuana; one

       year for Class A misdemeanor possession of a synthetic drug or synthetic drug

       lookalike substance; sixty days for Class C misdemeanor operating a vehicle

       while intoxicated; and sixty days for Class C misdemeanor refusal to identify

       self. Tr. Vol. III at 36-37; Appellant’s App. Vol. 2 at 130-33. Kyle’s sentences

       were all ordered to run concurrently.

Id. Kyle now appeals.

                                      Discussion and Decision

                                 I.       Sufficiency of the Evidence
[10]   Kyle argues that the evidence was insufficient to sustain his convictions for

       Level 5 felony operating a vehicle with a lifetime suspension and Class A
       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020   Page 7 of 21
       misdemeanor possession of a synthetic drug or synthetic drug lookalike

       substance. When reviewing the sufficiency of the evidence needed to support a

       criminal conviction, we neither reweigh evidence nor judge witness credibility.

       Bailey v. State, 

907 N.E.2d 1003

, 1005 (Ind. 2009). “We consider only the

       evidence supporting the judgment and any reasonable inferences that can be

       drawn from such evidence.”

Id. We will affirm

if there is substantial evidence

       of probative value such that a reasonable trier of fact could have concluded the

       defendant was guilty beyond a reasonable doubt.

Id. [11]

  We first address Kyle’s argument regarding the sufficiency of the evidence for

       his conviction of Level 5 felony operating a vehicle with a lifetime suspension.

       At the time, he committed the offense, the statute provided, in pertinent part,

       that a “person who . . . operates a motor vehicle after the person’s driving

       privileges are forfeited for life under section 16 of this chapter . . . commits a

       Level 5 felony.” Ind. Code § 9-30-10-17(a).8 To obtain a conviction under this

       section, the State must prove only two elements: (1) “that the defendant

       operated a motor vehicle”; and (2) “that the defendant’s driving privileges had

       been forfeited for life.” Brock v. State, 

955 N.E.2d 195

, 204-05 (Ind. 2011)

       (quoting Pierce v. State, 

737 N.E.2d 1211

, 1213-14 (Ind. Ct. App. 2000), trans.

       denied). See also Ford v. State, 

711 N.E.2d 86

, 88 (Ind. Ct. App. 1999), trans.

       denied.




       8
        Indiana Code section 9-30-10-17 was amended in 2019 by Public Law No.184-2019, SECTION. 7. The
       amendments to the statute do not have any effect on the outcome of this appeal.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020      Page 8 of 21
[12]   Citing Chastain v. State, 

58 N.E.3d 235

, 238 (Ind. Ct. App. 2016) for the

       proposition that penal statutes “must be strictly construed against the State[,]”

       Kyle argues that the State’s evidence, a certified copy of Kyle’s driving record

       from the BMV, established only that Kyle’s driving privileges were suspended

       for 199 years as opposed to forfeiture for life as required by statute. He

       contends that only the certification page of Kyle’s certified driving record lists

       his driver’s license status as suspended for life. According to Kyle, this renders

       the State’s evidence “insufficient as a matter of law,” and his conviction for the

       offense should be vacated. Appellant’s Br. at 13.


[13]   We agree with Kyle that penal statutes must be construed against the State. We

       disagree with Kyle that application of that principle to his case renders the

       State’s evidence insufficient to convict him. Here, as evidence that Kyle’s

       driving privileges were forfeited for life, the jury had before it a redacted version

       of Kyle’s certified driving record.9 Contrary to his contention that the sole




       9
        Indiana Code section 9-30-3-15 provides that a certified computer printout of the relevant portions of the
       defendant's driving record is prima facie evidence of a prior conviction. That statute provides as follows:
              In a proceeding, prosecution, or hearing where the prosecuting attorney must prove that the
              defendant had a prior conviction for an offense under this title, the relevant portions of a
              certified computer printout or electronic copy as set forth in IC 9-14-3-4 made from the records
              of the bureau are admissible as prima facie evidence of the prior conviction. However, the
              prosecuting attorney must establish that the document identifies the defendant by the
              defendant’s driving license number or by any other identification method utilized by the bureau.
       Ind. Code § 9-30-3-15; see also Brock v. State, 

955 N.E.2d 195

, 205 (Ind. 2011); Pierce v. State, 

737 N.E.2d 1211

,
       1214 (Ind. Ct. App. 2000), trans. denied. Kyle cites to trial testimony that a certified record may still contain
       erroneous information, that the redacted exhibit contained a different driver’s license number, but neither
       Kyle nor the transcript indicate where that error appears, and he does not contend on appeal that the
       redacted exhibit otherwise fails to identify him. Tr. Vol. 2 at 93.



       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020                    Page 9 of 21
       reference to his driver’s license status being listed as suspended for life occurs on

       the certification page of the redacted exhibit, the first page of the exhibit, titled

       “Indiana Official Driver Record,” specifically states “License status:

       HABITUAL TRAFFIC VIOLATOR – LIFE.” State’s Ex. 1(a) at 30. The

       redacted exhibit removed any reference to Kyle’s prior conviction but listed a

       suspension with an effective date of September 13, 2010 and an expiration date

       of September 13, 2299 and that the notice of suspension was mailed on

       September 20, 2010.

Id. at 32.

The redacted exhibit included the corresponding

       mailing of the notice of suspension from the BMV informing Kyle that his

       driving privileges were suspended for a period of 199 years “effective

       9/13/2010 through 9/13/2299.”

Id. at 39.

It also included a document titled,

       “How to Read [a BMV] Official Driver Record,” applicable to driver’s record

       printouts printed after June 30, 2016, noting that a driver’s license status with

       the designation “HABITUAL TRAFFIC VIOLATOR – LIFE” indicated that

       the driver’s “[d]riving privileges are forfeited for life as a habitual traffic

       violator[.]”

Id. at 48.

Kyle’s argument is an invitation for us to reweigh the

       evidence, which we cannot do. See 

Bailey, 907 N.E.2d at 1005

. A reasonable

       jury reviewing the information contained within the redacted exhibit could

       conclude that Kyle’s driving privileges were suspended for life. The State’s

       evidence was sufficient to support Kyle’s conviction for Level 5 felony

       operating a vehicle with a lifetime suspension.


[14]   We next address the sufficiency of the evidence for Kyle’s conviction of Class A

       misdemeanor possession of a synthetic drug lookalike substance. Kyle


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020   Page 10 of 21
contends that the State failed to present sufficient evidence to show that the

substance found on his person was a synthetic drug lookalike substance. At the

time Kyle committed the offense, and before the statute that criminalized the

offense was repealed on July 1, 2019, Indiana Code section 35-48-4-11.510

provided, in pertinent part that “[a] person who knowingly or intentionally

possesses a synthetic drug or synthetic drug lookalike substance commits

possession of a synthetic drug or synthetic drug lookalike substance, a Class A

misdemeanor.” The statute also provided that a “‘synthetic drug lookalike

substance’ has the meaning set forth in I.C. 35-31.5-2-321.5(a)(2).” Ind. Code §

35-48-4-11.5. At the time Kyle committed the offense, Indiana Code section

35-31.5-2-321.511 provided as follows:

           (a) “Synthetic drug lookalike substance”, except as provided in
           subsection (b), means one (1) or more of the following:


           (1) A substance, other than a synthetic drug, which any of the
           factors listed in subsection (c) would lead a reasonable person to
           believe to be a synthetic drug.


           (2) A substance, other than a synthetic drug:


           (A) that a person knows or should have known was intended to
           be consumed; and




10
     This section was repealed by Public Law No. 80-2019, SECTION 30.
11
     This section was repealed by Public Law No. 80-2019, SECTION 15.


Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020   Page 11 of 21
        (B) the consumption of which the person knows or should have
        known to be intended to cause intoxication.


        (b) The term “synthetic drug lookalike substance” does not
        include the following:


        (1) Food and food ingredients (as defined in IC 6-2.5-1-20).


        (2) Alcohol (as defined in IC 7.1-1-3-4).


        (3) A legend drug (as defined in IC 16-18-2-199).


        (4) Tobacco.


        (5) A dietary supplement (as defined in IC 6-2.5-1-16).


        (c) In determining whether a substance is a synthetic drug
        lookalike substance, the following factors may be considered:


        (1) The overall appearance of a dosage unit of the substance,
        including its shape, color, size, markings or lack of markings,
        taste, consistency, and any other identifying physical
        characteristics.


        (2) How the substance is packaged for sale or distribution,
        including the shape, color, size, markings or lack of markings,
        and any other identifying physical characteristics of the
        packaging.


        (3) Any statement made by the owner or person in control of the
        substance concerning the substance’s nature, use, or effect.



Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020   Page 12 of 21
               (4) Any statement made to the buyer or recipient of the substance
               suggesting or implying that the substance is a synthetic drug.


               (5) Any statement made to the buyer or recipient of the substance
               suggesting or implying that the substance may be resold for
               profit.


               (6) The overall circumstances under which the substance is
               distributed, including whether:


               (A) the distribution included an exchange of, or demand for,
               money or other property as consideration; and


               (B) the amount of the consideration was substantially greater
               than the reasonable retail market value of the substance the seller
               claims the substance to be.


       A “synthetic drug” is defined with reference to chemical compounds and

       includes any chemical compound determined to be a synthetic drug by rule

       adopted by the Indiana board of pharmacy. See Ind. Code § 35-31.5-2-321.


[15]   Kyle appears to argue that without testing the substance the State could not

       show that it was a synthetic drug because its chemical composition was

       unknown. He contends that Officer Davies’s testimony alone could not

       establish that the substance was a synthetic drug lookalike substance because it

       had never been tested to confirm its identity and Officer Davies acknowledged

       minute observable differences between a synthetic drug and a synthetic drug

       lookalike substance.



       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020   Page 13 of 21
[16]   In Yoakum v. State, another panel of this court addressed the sufficiency of the

       evidence for a conviction under Indiana Code section 35-48-4-11.5 

95 N.E.3d 169

, 173 (Ind. Ct. App. 2018), trans. denied. The defendant in that case argued

       the State’s evidence was insufficient to prove that the substance was a synthetic

       lookalike substance because there was no scientific testing of the substance, and

       the officers’ testimony did not establish that the substance was a synthetic drug

       lookalike substance.

Id. at 174.

We rejected the defendant’s arguments,

       explaining:

               “For offenses involving controlled substances, the State is not
               required to introduce the subject contraband to obtain a
               conviction for dealing or possession.” Boggs v. State, 

928 N.E.2d 855

, 865 (Ind. Ct. App. 2010), trans. denied. The identity of a
               controlled substance may be established through witness
               testimony and circumstantial evidence. Helton v. State, 

907 N.E.2d 1020

, 1024 (Ind. 2009). Our [S]upreme [C]ourt has held
               that, although “chemical analysis is one way, and perhaps the
               best way, to establish the identity of a compound,” the testimony
               of “someone sufficiently experienced with the drug may establish
               its identity, as may other circumstantial evidence.” Vasquez v.
               State, 

741 N.E.2d 1214

, 1216 (Ind. 2001).

Id. at 175.

In affirming the defendant’s conviction for knowing or intentional

       possession of a synthetic drug lookalike substance, we noted that the officers

       testified that they had experience recognizing synthetic marijuana and that the

       recovered substance looked like synthetic marijuana, smelled like synthetic

       marijuana, and was packaged in a ripped plastic baggie.

Id. Court of Appeals

of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020   Page 14 of 21
[17]   Here, Officer Davies stated that a synthetic drug or a synthetic drug lookalike

       substance has a “very sweet type [of] smell” that is “similar to potpourri” and

       different from the “distinct odor” of marijuana.

Id. at 136.

When trying to

       differentiate marijuana from a synthetic drug or a synthetic drug lookalike

       substance, Officer Davies testified that “they look similar in appearance” but “if

       you put them side-by-side, there’s a noticeable difference,” but “you look for the

       color – whether it’s green, brown. It’s a plant-like material as well, but it is

       finely chopped up, it’s not a [sic] leafy or kept in buds like marijuana is.”

Id. at 137.

Officer Davies testified that he found one bag of marijuana 12 and “three

       (3) additional bags of a plant-like substance” on Kyle. Tr. Vol. II at 145; State’s

       Ex. 3, 4.


[18]   Officer Davies testified that the three bags of plant-like substance recovered

       from Kyle’s pants pocket appeared visually similar to marijuana in that it was a

       brown-green plant like substance, but that it was finely chopped and had a

       potpourri smell that he had explained was typical of synthetic drugs and

       synthetic drug lookalike substances.

Id. at 136, 153;

State’s Ex. 4. Officer

       Davies did not believe that the substance in the three bags was marijuana but

       field-tested the three bags for THC and none contained THC.

Id. at 156.

As to

       the substance’s chemical composition, Officer Davies testified that he did not




       12
          Officer Davies testified he was able to determine that the bag was marijuana based on his experience and
       training, describing the substance as “a brown, green, leafy substance” that had a “distinct and pungent”
       odor. Tr. Vol. II at 146. The substance also field-tested positive for THC, the active ingredient in marijuana.

Id. at 150.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020                 Page 15 of 21
       know the chemical makeup of the substance in the three bags because they were

       not sent to the Indiana State Police Laboratory for testing.

Id. at 209-10.

He

       also acknowledged that without testing of the substance’s chemical

       composition, he could not visually differentiate between a synthetic drug and a

       synthetic drug lookalike substance.

Id. at 225-26.

However, he testified that

       based on his training experience the substance in the three bags was “[a]

       synthetic lookalike substance” because it was meant to be “consumed in the

       same way as marijuana; it looks similar to marijuana, but it has different

       chemical makeup than marijuana.”

Id. at 157.

Office Davies also indicated

       that the three small bags were packaged similar to marijuana, which suggested

       that it was intended to be consumed like marijuana.

Id. at 153-55, 217-18.

As

       noted, while chemical analysis may establish the identity of a substance, it is

       not always necessary, where, as here, the jury heard Officer Davies’ testimony

       regarding the substance and saw the exhibits depicting both the marijuana and

       the synthetic drug lookalike substance and determined that it was a synthetic

       drug lookalike substance. See 

Vasquez, 741 N.E.2d at 1216

; 

Yoakum, 95 N.E.3d at 175

. The State’s evidence was sufficient to demonstrate that Kyle knowingly

       or intentionally possessed a synthetic drug lookalike substance; therefore, the

       evidence was sufficient to sustain his conviction.


                                     II.     Inappropriate Sentence
[19]   Kyle next contends that his sentence is inappropriate in light of the nature of the

       offense and his character. Pursuant to Indiana Appellate Rule 7(B), this court

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

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020   Page 16 of 21
       trial court’s decision, the [c]ourt finds that the sentence is inappropriate in light

       of the nature of the offense and the character of the offender.” Whether a

       sentence is inappropriate turns on our sense of the culpability of the defendant,

       the severity of the crime, the damage done to others, and other factors that

       come to light in a given case. Cardwell v. State, 

895 N.E.2d 1219

, 1224 (Ind.

       2008). We defer to the trial court’s decision, and our goal is to determine

       whether the appellant’s sentence is inappropriate, not whether some other

       sentence would be more appropriate. Conley v. State, 

972 N.E.2d 864

, 876 (Ind.

       2012). “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 defendant’s character (such as

       substantial virtuous traits or persistent examples of good character).” Stephenson

       v. State, 

29 N.E.3d 111

, 122 (Ind. 2015). When we review a sentence, we seek

       to leaven the outliers, not to achieve a perceived correct result. 

Cardwell, 895 N.E.2d at 1225

. On appeal, it is the defendant’s burden to persuade us that the

       sentence imposed by the trial court is inappropriate. Shell v. State, 

927 N.E.2d 413

, 422 (Ind. Ct. App. 2010).

[20]   The advisory sentence is the starting point the legislature has selected as an

       appropriate sentence for the crime committed. Abbott v. State, 

961 N.E.2d 1016

,

       1019 (Ind. 2012). A reviewing court is thus “unlikely to consider an advisory

       sentence inappropriate.” Shelby v. State, 

986 N.E.2d 345

, 371 (Ind. Ct. App.

       2013), trans. denied. Rather, the defendant “bears a particularly heavy burden in

       persuading us that his sentence is inappropriate when the trial court imposes the

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020   Page 17 of 21
       advisory sentence.” Fernbach v. State, 

954 N.E.2d 1080

, 1089 (Ind. Ct. App,

       2011), trans. denied. Here, Kyle was sentenced on his conviction for Level 5

       felony operating a vehicle after forfeiture of license for life to three years with

       two years executed in alternative placement through community corrections

       and one year suspended to probation. Appellant’s App. Vol. 2 at 130-34; Tr. Vol.

       III at 36-37. Kyle’s sentences on his misdemeanor convictions were all ordered

       to be served concurrently to his Level 5 felony conviction; thus, Kyle received

       an aggregate sentence of three years.

Id. Kyle’s Level 5

felony offense carries

       an advisory sentence of three years with a sentencing range of one to six years.

       Ind. Code § 35-30-2-6. Kyle received the advisory sentence for his Level 5

       felony conviction.

[21]   As to the nature of his offense, Kyle argues that his offense was “unremarkable”

       and “mundane” in that, while he was driving while suspended, he was not

       driving erratically and was generally cooperative, and his offense did not result

       in violence or physical harm to any person or property. Appellant’s Br. at 17.

       The nature of the offense is found in the details and circumstances of the

       commission of the offense and the defendant’s participation. Perry v. State, 

78 N.E.3d 1

, 13 (Ind. Ct. App. 2017). The nature of Kyle’s offense shows that he

       was not observed to be driving erratically and was initially pulled over for

       failure to dim his bright lights. Tr. Vol. II at 38-40, 81-82. Kyle’s offense did

       not involve violence or result in physical harm to any person or property.

       When Kyle was pulled over and was approached by Officer Neese, Kyle

       provided false information as to his identity, which inhibited the investigation,

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020   Page 18 of 21
       drove while intoxicated, and possessed contraband, albeit in relatively small

       amounts.

Id. at 41-47, 144-45, 147, 150, 156-57, 182, 187, 190.

We cannot say

       that Kyle’s sentence was inappropriate in light of the nature of the offense.


[22]   As to his character, Kyle argues that his criminal history “consists of operating

       offenses and misdemeanors” and, when coupled with the favorable aspects of

       his character, should result in revision of his sentence. Appellant’s Br. at 18.

       “The character of the offender is shown by the offender’s life and conduct.”

       Croy v. State, 

953 N.E.2d 660

, 664 (Ind. Ct. App. 2011). When considering the

       character of the offender, one relevant fact is the defendant’s criminal history.

       Johnson v. State, 

986 N.E.2d 852

, 857 (Ind. Ct. App. 2013).


[23]   Here, the trial court identified Kyle’s history of criminal or delinquent activity

       in aggravation, and it also noted that Kyle’s last conviction occurred

       approximately ten years before the instant conviction. Tr. Vol. III at 35. Kyle,

       who was thirty-seven at the time of sentencing, had accumulated adult criminal

       convictions which included Class A misdemeanor theft, Class C felony armed

       robbery, Class D felony theft, Class C felony burglary, and Class A

       misdemeanor domestic battery in the presence of a child under the age of

       sixteen. Appellant’s Conf. App. Vol. 2 at 110-12. Kyle had also previously

       violated the terms of community supervision.

Id. at 111;

Tr. Vol. III at 29, 35.

       In addition, Kyle compiled an extensive list of traffic violations, including three

       convictions for operating a vehicle without ever receiving a license, one

       conviction for driving while suspended, and a conviction for operating a vehicle



       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020   Page 19 of 21
as an habitual traffic violator on September 13, 2010.13 Appellant’s Conf. App.

Vol. 2. at 110-13. The trial court noted that Kyle took responsibility for his

actions and that a significant length of time had elapsed between his most

recent criminal conviction and the instant convictions, which the trial court

determined reflected favorably on him. It also observed that despite the length

of the time between convictions Kyle had attained his habitual traffic violator

status due to “a number of [d]riving [w]hile [l]icense [s]uspended previous

convictions.”

Id. at 36.

Although we acknowledge that Kyle’s volunteering at

the Boy’s and Girl’s Club and his employment history are favorable factors, we

cannot say that Kyle has met his burden to show that his three-year sentence is

inappropriate in light of his character. 14 See 

Fernbach, 954 N.E.2d at 1089

(noting that the burden to show a sentence is inappropriate is “particularly

heavy” when the trial court imposes the advisory sentence).




13
  Kyle cites Douglas v. State, 

878 N.E.2d 873

(Ind. Ct. App. 2007), Ruiz v. State, 

818 N.E.2d 927

(Ind. 2004)
and Westmoreland v. State, 

787 N.E.2d 1005

(Ind. Ct. App. 2003) in support of his position that his sentence is
inappropriate in light of his character. We note that in those cases courts revised enhanced or maximum
sentences to the presumptive sentences on the basis of time between criminal convictions or criminal history
that was minor or dissimilar to the particular conviction. 

Douglas, 878 N.E.2d at 881

, 

Ruiz, 818 N.E.2d at 929-30

, 

Westmoreland, 787 N.E.2d at 1011-12

. Here, Kyle received the advisory sentence (the equivalent to
the presumptive sentence under the old sentencing scheme) and not an enhanced sentence. Therefore, we do
not find those cases persuasive.
14
   To the extent Kyle contends that the principles behind Sanquenetti v. State, 

917 N.E.2d 1287

(Ind. Ct. App.
2009) support a revision of his sentence, we disagree. In Sanquenetti, we revised a defendant’s four-year
advisory sentence for Class C felony nonsupport of a dependent child to two years, holding that because
certain portions of the defendant’s support arrearage accrued within the timeframe for which she had already
been charged, convicted, and sentenced, it was error to consider those portions again when assessing the
nature of the offense for sentencing 

purposes. 917 N.E.2d at 1290-92

. We cannot say that Sanquetti supports
a revision of Kyle’s sentence.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020                Page 20 of 21
[24]   Affirmed.




       Bradford, C.J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1217 | December 30, 2020   Page 21 of 21

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