Brian Walton v. State of Indiana (mem. dec.)
49A05-1601-CR-64
| Ind. Ct. App. | Feb 6, 2017Background
- On March 18, 2013, an undercover Indianapolis detective and a confidential informant conducted controlled buys; a gold van arrived and Brian Walton, sitting in the van, engaged in hand-to-hand transactions of heroin and crack with the detective and others.
- Detective Brinker observed Walton with a black sock in his lap that contained suspected crack; Walton sold heroin directly to the detective and later broke off a piece of crack from the sock and passed it through a co-defendant to the detective.
- Police later recovered the black sock from the van vents containing one packet of heroin (1.8067 g) and two packets of cocaine (84.99 g and 58.01 g); marked bills and $3,000 cash were also recovered.
- Walton was charged with multiple counts including class A felony dealing in cocaine and class B felony dealing in heroin; convicted on six counts, with convictions merged to one class A and one class B dealing count.
- The trial court refused Walton’s tendered “mere presence” jury instruction, gave a possession instruction defining actual and constructive possession, and sentenced Walton to concurrent 35- and 15-year terms (entered on class A and class B felony counts respectively).
- Walton appealed, challenging (1) refusal of the mere-presence instruction, (2) the possession instruction, (3) the court’s treatment of mitigators/aggravators at sentencing, and (4) the appropriateness of his sentence under App. R. 7(B).
Issues
| Issue | State's Argument | Walton's Argument | Held |
|---|---|---|---|
| Whether trial court erred by refusing Walton’s "mere presence" instruction | Evidence showed active participation (hand-to-hand sale, handling sock); instruction unnecessary and unsupported | Instruction required because Walton argued he was only present, not a participant | Refusal not an abuse of discretion; evidence supported active participation, so instruction not warranted |
| Whether possession instruction (defining actual and constructive possession) constituted fundamental error | Instruction correctly stated law; Walton did not object at trial; evidence showed actual possession | Instruction was confusing on mens rea element of constructive possession; challenges waived | No fundamental error; instruction proper and jury charge considered as whole; evidence showed actual possession |
| Whether trial court abused discretion by failing to find proposed mitigators (children hardship, remorse, rehab) | Court considered rehabilitative programs; statements did not show full remorse or "undue" hardship for dependents | Court ignored mitigating evidence (family hardship, remorse, rehab) | No abuse of discretion; court not required to accept proposed mitigators or explain rejection |
| Whether sentencing was inappropriate under App. R. 7(B) | Sentence within statutory range, supported by quantity of drugs (143 g crack), multiple serious convictions, and extensive criminal history | 35-year concurrent sentence excessive given typical offense and offender character | Affirmed; defendant failed to show sentence inappropriate in light of offense nature and his character (career criminal, repeated probation revocations, offenses while on bond) |
Key Cases Cited
- Kane v. State, 976 N.E.2d 1228 (Ind. 2012) (standard for reviewing trial court’s decision on jury instructions)
- Isom v. State, 31 N.E.3d 469 (Ind. 2015) (purpose and function of jury instructions)
- Gray v. State, 957 N.E.2d 171 (Ind. 2011) (elements and inference framework for constructive possession)
- Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007) (sentencing discretion and review for abuse; handling of aggravators/mitigators)
- Covey v. State, 929 N.E.2d 813 (Ind. Ct. App. 2010) (waiver of instructional objections absent fundamental error)
- Price v. State, 765 N.E.2d 1245 (Ind. 2002) (when defendant’s statements do not constitute true remorse for mitigation)
- Akard v. State, 937 N.E.2d 811 (Ind. 2010) (scope of appellate review under Appellate Rule 7(B))
- Davidson v. State, 926 N.E.2d 1023 (Ind. 2010) (considerations in 7(B) review regarding executed time and concurrent/consecutive sentences)