Opinion
24A-CR-897
09-19-2024
Tavaris J. Glenn, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Jamie C. Egolf. ATTORNEYS FOR APPELLEE Theodore E. Rokita, Tyler G. Banks.
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Allen Superior Court The Honorable Steven O. Godfrey, Judge Trial Court Cause No. 02D04-2309-F2-50.
ATTORNEY FOR APPELLANT Jamie C. Egolf.
ATTORNEYS FOR APPELLEE Theodore E. Rokita, Tyler G. Banks.
MEMORANDUM DECISION
Vaidik, Judge.
Case Summary
[¶1] Tavaris J. Glenn appeals his convictions and twenty-five-year sentence for Level 2 felony dealing in methamphetamine and Level 4 felony dealing in a narcotic drug. We affirm.
The statement of facts in Glenn's brief consists of two sentences that don't address any of the facts relevant to the arguments he makes. Indiana Appellate Rule 46(A)(6) provides that an appellant's statement of facts "shall describe the facts relevant to the issues presented for review," that the facts "shall be stated in accordance with the standard of review appropriate to the judgment or order being appealed," and that the statement "shall be in narrative form." Glenn's cursory statement of facts satisfies none of these requirements. We caution counsel to follow this rule in future appeals.
[¶2] On June 30, 2023, Fort Wayne Police Department detectives conducted a controlled buy of methamphetamine and fentanyl from Glenn using a confidential informant. The State charged Glenn with Level 2 felony dealing in methamphetamine and Level 4 felony dealing in a narcotic drug, alleging that he knowingly or intentionally delivered "methamphetamine, pure or adulterated, in the amount of ten (10) grams or more" and "fentanyl, pure or adulterated, in the amount of one (1) gram to less than five (5) grams." Appellant's App. Vol. II pp. 13, 17.
The State also charged Glenn with Level 3 felony dealing in a narcotic drug based on another controlled buy on a different day. The jury found Glenn not guilty on that count, and it is not at issue in this appeal.
[¶3] A jury trial was held in February 2024. Melinda McNair, a forensic scientist with the Indiana State Police Laboratory, testified about weighing and testing the drugs. She said the methamphetamine weighed 23.58 grams and the fentanyl weighed 3.33 grams. As for the testing, McNair was asked, "Okay, and then you just tested samples, not every single bit of the drugs, is that correct?" Tr. Vol. II p. 185. She responded, "I took a representative sample. So, when I open the item of evidence and I removed a portion, I made sure it was visually consistent with what I was grabbing to examine." Id.
[¶4] The jury found Glenn guilty on both counts. In sentencing Glenn, the trial court found as aggravating circumstances Glenn's criminal history (five felonies and three misdemeanors) and his failed efforts at rehabilitation, including the fact he was on parole for a drug-dealing conviction when he committed these offenses. The court found Glenn's IRAS score (moderate risk to reoffend) to be a mitigating circumstance. The court sentenced Glenn to twenty-five years for the Level 2 felony and twelve years for the Level 4 felony, to be served concurrently.
[¶5] Glenn now appeals. Discussion and Decision I. The evidence is sufficient to support Glenn's convictions
[¶6] Glenn first contends the evidence is insufficient to support his convictions. When reviewing sufficiency-of-the-evidence claims, we neither reweigh the evidence nor judge the credibility of witnesses. Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015). We will only consider the evidence supporting the conviction and any reasonable inferences that can be drawn from the evidence. Id. A conviction will be affirmed if there is substantial evidence of probative value to support each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Id.
[¶7] Glenn argues the State failed to prove he sold at least ten grams of methamphetamine and at least one gram of fentanyl. He acknowledges that the substance identified as methamphetamine weighed 23.58 grams and that the substance identified as fentanyl weighed 3.33 grams. But he notes that where, as here, only a small portion of a substance is tested, the tester must offer an opinion that the remainder of the substance is physically consistent with the portion that was tested. Hamdi v. State, 200 N.E.3d 956, 960 (Ind.Ct.App. 2022). Glenn says that didn't happen here. We disagree. McNair testified that she tested a "representative sample" of each substance. By definition, a sample that is "representative" is consistent with the remainder of the substance. Representative, Webster's Third New International Dictionary (1993) ("serving as a characteristic example" or "illustrative of a class"). And if that weren't enough, McNair added, "So, when I open the item of evidence and I removed a portion, I made sure it was visually consistent with what I was grabbing to examine." This evidence is sufficient to prove that Glenn sold 23.58 grams of methamphetamine and 3.33 grams of fentanyl. We therefore affirm Glenn's convictions.
II. Glenn waived his sentencing arguments
[¶8] Glenn also argues the trial court should have found as a mitigating circumstance that his eight children "will suffer hardship by the sentence imposed[.]" Appellant's Br. p. 11. He didn't ask the trial court to find this mitigator and therefore waived the issue for purposes of appeal. See Bryant v. State, 984 N.E.2d 240, 252 (Ind.Ct.App. 2013), trans. denied. Waiver notwithstanding, Glenn hasn't established the hardship mitigator. "Many persons convicted of serious crimes have one or more children and, absent special circumstances, trial courts are not required to find that imprisonment will result in an undue hardship." Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999). Glenn claims generally that his children will be "negatively impacted" by his imprisonment, Appellant's Br. p. 11, but he identifies no special circumstances.
[¶9] Glenn's sentencing argument also mentions Indiana Appellate Rule 7(B), which provides that an appellate court "may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender." However, Glenn doesn't address the nature of his offenses or his character. Rather, he references Rule 7(B) as part of his argument about the hardship mitigator. But the finding of mitigators is subject to abuse-of-discretion review. Wert v. State, 121 N.E.3d 1079, 1084 (Ind.Ct.App. 2019), trans. denied. Inappropriateness review is a separate matter. See King v. State, 894 N.E.2d 265, 267 (Ind.Ct.App. 2008). To the extent Glenn contends his sentence is inappropriate, he waived that claim by failing to make a cogent argument-or any argument-about the nature of his offenses or his character. See Ind. Appellate Rule 46(A)(8)(a).
[¶10] Affirmed.
Weissmann, J., and Foley, J., concur.