Brandon Scott DeWitt, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Brandon DeWitt appeals his conviction for Level 3 felony possession of methamphetamine, arguing that the trial court abused its discretion by: (1) admitting certain statements into evidence in violation of Indiana Evidence Rule 404(b); and (2) excluding 911 calls that brought police into contact with him. DeWitt also contends the trial court relied on an improper aggravating factor in sentencing him and that his twelve-year aggregate sentence with nine years executed in the Department of Correction and three years suspended to probation is inappropriate in light of the nature of his offense and his character. We affirm.

Facts and Procedural History

[2] On October 26, 2023, two Jeffersonville Police Department officers were dispatched to a Thorntons convenience store in response to a disturbance. When they arrived, the officers found no disturbance, but Officer Jonathan Happel saw four people standing outside near a dumpster. As he approached them, three of the individuals walked away. One of the people, later identified as DeWitt, briefly went behind and then reappeared from behind the dumpster. See Transcript Vol. 3 at 32-33. Officer Happel walked behind the dumpster and found a baggie filled with what he believed to be a narcotic drug. As he placed DeWitt in handcuffs, DeWitt stated, “I'm done with this[,]” and asked not to be criminally charged. Tr. Vol. 3 at 49; State's Exhibit D at 1:00-1:08. After reading DeWitt his rights, the officer asked DeWitt what the substance was, and DeWitt acknowledged it was methamphetamine. Tr. Vol. 3 at 37; State's Ex. D at 2:09-2:20. He told Officer Happel and Officer Alex Dalton that he had purchased the methamphetamine for $150, where he made the purchase, and that he believed it was about eight grams. See Tr. Vol. 3 at 40-41. He offered to “help [the officers] out” if they would “help [him] out.” Tr. Vol. 2 at 225. A few minutes later, Officer Dalton told DeWitt he needed to “change the one thing [that was] fu***** [him] over,” and DeWitt responded, “I know.” Tr. Vol. 2 at 229; State's Ex. A at 8:30-8:35. The substance found behind the dumpster was tested and determined to be 29.46 grams of methamphetamine.

[3] The State charged DeWitt with four counts of possession of methamphetamine ranging from Level 3 to Level 6 felonies.¹ Before trial, the court excluded the 911 calls that brought the officers to the scene and were unrelated to DeWitt. It also ruled that DeWitt's statement, “I'm done with this[,]” as well as Officer Dalton's “fu***** you over” comment and DeWitt's agreement to it, would be admitted at trial. See Tr. Vol. 2 at 22-25, 35-39. At trial, body camera footage containing those statements was admitted over DeWitt's objection. See id. at 219-33. The jury found DeWitt guilty of Level 3 possession of methamphetamine, and the trial court dismissed the remaining counts on the State's motion. The trial court sentenced DeWitt to an aggregate sentence of twelve years with nine years executed in the DOC and three years suspended to probation.

Discussion and Decision

1. Evidentiary Issues

[4] DeWitt argues the trial court abused its discretion by admitting and excluding certain evidence at trial. We review challenges to the admission of evidence at trial for an abuse of discretion. Higgason v. State, 210 N.E.3d 868, 880 (Ind. Ct. App. 2023), trans. denied. We reverse only where the trial court's determination was “clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights.” Id. (quoting Crabtree v. State, 152 N.E.3d 687, 696 (Ind. Ct. App. 2020), trans. denied).

A. Evidence Rule 404(b)

[5] DeWitt argues the trial court erred by admitting certain statements in violation of Evidence Rule 404(b). Specifically, DeWitt contends his statement that he was “done with this” and his agreement with Officer Dalton's comment that he needed to “change the one thing that [was] fu***** [him] over” were statements evidencing his “addiction issues” and would lead the jury to conclude that he had possessed drugs before. Appellant's Brief at 7, 9; Tr. Vol. 2 at 229; Tr. Vol. 3 at 49.

[6] “Rule 404(b) serves to safeguard the presumption of innocence in favor of criminal defendants” and “prevents the jury from indulging in the ‘forbidden inference’ that a criminal defendant's ‘prior wrongful conduct suggests present guilt.’ ” Fairbanks v. State, 119 N.E.3d 564, 568 (Ind. 2019) (quoting Byers v. State, 709 N.E.2d 1024, 1026-27 (Ind. 1999)), cert. denied. Accordingly, Rule 404(b)(1) provides that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” However, such evidence “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Evid. R. 404(b)(2). When evidence is admitted for another purpose, the trial court must:

First ․ determine that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant's propensity to commit the charged act. Second, the court must determine that the proponent has sufficient proof that the person who allegedly committed the act did, in fact, commit the act. And third, the court must balance the probative value of the evidence against its prejudicial effect pursuant to Rule 403.

Hardiman v. State, 222 N.E.3d 1049, 1056 (Ind. Ct. App. 2023) (quoting D.R.C. v. State, 908 N.E.2d 215, 223 (Ind. 2009), reh'g denied), trans. denied.

[7] DeWitt said he was “done with this” while being handcuffed. Tr. Vol. 3 at 49; State's Exhibit D at 1:00-1:03. He admits the statement and context gave “no indication as to what [DeWitt] was referring[.]” Appellant's Br. at 8. We agree with the State that this statement only “creates a mere inference” of prior drug use and that such speculation as to whether testimony invoked prior bad conduct does not fall within the purview of Rule 404(b). Tr. Vol. 3 at 49; see Atteberry v. State, 911 N.E.2d 601, 609 (Ind. Ct. App. 2009) (finding testimony that defendant's DNA was found in a “national database” did not fall within the purview of Rule 404(b) because it “create[d] a mere inference” that defendant had past convictions). The court did not abuse its discretion by admitting this statement.

[8] DeWitt's agreement with Officer Dalton's statement that he needed to “change the one thing that [was] fu***** [him] over” does fall within the purview of Rule 404(b). Tr. Vol. 2 at 229. From the information Officer Dalton gathered through the investigation and arrest of DeWitt, it is reasonable to conclude that the officer believed DeWitt was a drug user whose life circumstances would not improve until he stopped using drugs. DeWitt's acknowledgment further supports the officer's observation. Even so, the State argues this exchange was central to showing DeWitt's “knowledge of the presence of the methamphetamine found and his intent to possess it[,]” which did not go to his propensity to commit the crime. Appellee's Br. at 13.

[9] At trial, because DeWitt did not have methamphetamine on him when he was arrested, the State argued that DeWitt had constructively possessed the discarded methamphetamine Officer Happel found.² To prove its theory that DeWitt constructively possessed the methamphetamine, the State had to show that DeWitt had: “(1) the capability to maintain dominion and control over the item; and (2) the intent to maintain dominion and control over it.” Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). But because DeWitt did not have exclusive possession of the premises on which the methamphetamine was found, the State had to prove “the inference of [his] intent to maintain dominion or control over the drugs ․ ‘by additional circumstances pointing to [his] knowledge of the nature of the controlled substances and their presence.’ ” Cannon v. State, 99 N.E.3d 274, 279 (Ind. Ct. App. 2018) (quoting Gee v. State, 810 N.E.2d 338, 341 (Ind. 2004)), trans. denied. One such additional circumstance is “incriminating statements made by the defendant.” Gee, 810 N.E.2d at 341. DeWitt's statement alluding to prior drug use and the need for change, which the trial court identified as showing “cognizance of guilt” or knowledge of the substance, was made just minutes after DeWitt was arrested for crimes related to drugs found in his vicinity that he had accurately identified and admitted to purchasing. Tr. Vol. 2 at 35. In this context, his statement was probative of his knowledge of the presence of the methamphetamine at issue and his intent to possess it. The trial court did not abuse its discretion by admitting these statements.³

B. 911 Calls

[10] DeWitt also argues the trial court abused its discretion by excluding 911 calls that showed the police initially responded to Thorntons for reasons unrelated to DeWitt. On appeal, DeWitt assumes these calls were relevant and frames the issue as whether the trial court properly excluded the calls under Evidence Rule 403.

[11] However, we find DeWitt's assumption misplaced. The record demonstrates the trial court excluded the 911 calls after it determined they were unrelated to DeWitt and therefore not relevant, and their admission would only confuse the jury. See Tr. Vol. 2 at 50. When DeWitt proffered the calls at trial, the court agreed with the State that the jury had received sufficient context through officer testimony of why police were dispatched to Thorntons, and playing the calls would not “have any relevancy or add any probative value to the jury's knowledge of what happened.”⁴ Tr. Vol. 3 at 103.

[12] Evidence Rule 401 provides that “[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Irrelevant evidence is inadmissible. Evid. R. 402. As the reason for the police's encounter with DeWitt was not a fact of consequence in determining the action, the trial court did not abuse its discretion in excluding the 911 calls as irrelevant.

[13] Nevertheless, we conclude that even if any of the trial court's evidentiary rulings were in error, any such error was harmless. See Hall v. State, 177 N.E.3d 1183, 1197 (Ind. 2021) (listing factors to consider in a harmless error analysis). Any error in the admission or exclusion of evidence did not affect DeWitt's “substantial rights” because the “probable impact on the fact finder” was sufficiently minor such that there was “no substantial likelihood the challenged evidence contributed to the conviction.” Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012), reh'g denied; see also Ind. Appellate Rule 66(A). Given that DeWitt identified the methamphetamine, admitted to purchasing the illegal substance, and offered to provide information to the officers if they would help him, there is no substantial likelihood the contested evidence would have impacted the jury's verdict.

2. Sentencing Issues

[14] DeWitt also argues that the trial court identified an improper aggravating factor in sentencing him and that his twelve-year aggregate sentence with three years suspended to probation is inappropriate given the nature of his offense and his character.

A. Aggravating Factor

[15] “[S]entencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (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 deductions to be drawn therefrom.’ ” Id. (quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)). A trial court may abuse its sentencing discretion in several ways, including by failing to enter a sentencing statement, finding aggravating or mitigating factors not supported by the record, or finding factors that are improper as a matter of law. Id. at 490-91.

[16] Here, the trial court recognized DeWitt's substance abuse as a mitigating factor and found as aggravating factors his extensive criminal history, history of failed probation, and “refus[al] to accept responsibility on this case in the face of the overwhelming evidence of [his] guilt instead [ ] taking this to trial and basically rolling the dice[.]” Tr. Vol. 3 at 154. DeWitt argues the trial court erred by identifying his decision to “t[ake] the charges to trial” as an aggravating factor. Appellant's Br. at 13.

[17] A court may identify a defendant's lack of remorse as an aggravating factor but may not enhance a defendant's sentence for “consistently maintaining his innocence ․ in good faith.” Sloan v. State, 16 N.E.3d 1018, 1027 (Ind. Ct. App. 2014) (quoting Cox v. State, 780 N.E.2d 1150, 1158 (Ind.Ct.App.2002)). “A lack of remorse is displayed by a defendant when he displays disdain or recalcitrance, the equivalent of ‘I don't care.’ This is distinguished from the right to maintain one's innocence, i.e., ‘I didn't do it.’ ” Cox, 780 N.E.2d at 1158 (quoting Bluck v. State, 716 N.E.2d 507, 513 (Ind. Ct. App. 1999) (internal citations omitted).

[18] Here, DeWitt maintained his innocence in good faith and in a manner consistent with his constitutional right to a jury trial. In his closing argument at trial, DeWitt's counsel provided alternative explanations for DeWitt's seemingly incriminating statements to police and argued that the State had not proven beyond a reasonable doubt that DeWitt actually or constructively possessed the methamphetamine. See Tr. Vol. 3 at 125-139. While the jury did not agree, DeWitt asserted this defense in good faith given the evidence presented. The trial court made no observations consistent with a finding of lack of remorse, and we agree with DeWitt that the court improperly identified his decision go to trial as an aggravating factor.

[19] That said, “[a] single aggravating circumstance may be sufficient to enhance a sentence” and we will not disturb an enhanced sentence if “we are confident the trial court would have imposed the same sentence even if it had not found the improper aggravator.” Baumholser v. State, 62 N.E.3d 411, 417 (Ind. Ct. App. 2016) (quoting Hackett v. State, 716 N.E.2d 1273, 1278 (Ind. 1999)), trans. denied. Here, DeWitt does not contest the trial court's identification of his extensive criminal history and his inability to historically comply with the terms of probation as aggravating factors. The trial court also “want[ed] to” sentence DeWitt to fifteen years but the State “only ask[ed] for twelve[.]” Tr. Vol. 3 at 154. Because the trial court identified valid aggravators and was inclined to give DeWitt a harsher sentence than it did, we are confident the trial court would have imposed the same sentence had it not identified an improper aggravator.

B. Appropriateness of Sentence

[20] Next, we consider whether the sentence DeWitt received was inappropriate in light of the nature of his offense and his character. Indiana Appellate Rule 7(B) “permits an appellate court to revise a sentence if, after due consideration of the trial court's decision, the sentence is found to be inappropriate in light of the nature of the offense and the character of the offender.” Faith v. State, 131 N.E.3d 158, 159 (Ind. 2019). “The principal role of [Rule 7(B)] review should be to attempt to leaven the outliers[.]” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Our determination “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.” Id. at 1224. We give deference to the trial court's decision and strive to “determine whether the defendant's sentence is inappropriate, not whether some other sentence would be more appropriate.” King v. State, 991 N.E.2d 612, 618 (Ind. Ct. App. 2013). The burden is on the defendant to convince us that his sentence was inappropriate. Id.

[21] We begin with the advisory sentence when considering the nature of the offense. Norton v. State, 235 N.E.3d 1285, 1291 (Ind. Ct. App. 2024). DeWitt was convicted of Level 3 felony possession of methamphetamine. Ind. Code § 35-48-4-6.1(d)(1) (specifying possession of methamphetamine is a Level 3 felony if the drug involved is at least twenty-eight grams). A Level 3 felony conviction carries a sentence between three and sixteen years, with the advisory sentence being nine years. I.C. § 35-50-2-5(b). The trial court imposed a twelve-year aggregate sentence with nine years executed in the DOC and three years suspended to probation.

[22] “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). When the trial court deviates from the advisory sentence, we consider how egregious the circumstances of the offense were compared to the typical offense accounted for in the advisory sentence. Norton, 235 N.E.3d at 1291.

[23] As to the nature of the offense, DeWitt contends the “amount of methamphetamine proven at trial was 29.46 grams[,]” which is “barely over the limit to make the charge a Level 3 felony.” Appellant's Br. at 12. While this may be true, DeWitt has not persuaded us that his sentence is inappropriate based on the nature of his offense by simply listing the weight requirement for Level 3 felony possession of methamphetamine and the amount proven at trial. DeWitt failed to address the details of the crime, such as his hiding behind a dumpster as officers approached.

[24] Furthermore, it is evident the trial court's decision to enhance DeWitt's sentence was focused on character considerations. A defendant's life and conduct illustrate his character. Morris v. State, 114 N.E.3d 531, 539 (Ind. Ct. App. 2018), trans. denied. “Even a minor criminal record reflects poorly on a defendant's character[.]” Reis v. State, 88 N.E.3d 1099, 1105 (Ind. Ct. App. 2017). “The significance of a criminal history in assessing a defendant's character and an appropriate sentence varies based on the gravity, nature, and number of prior offenses in relation to the current offense.” Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007).

[25] DeWitt's criminal history dates back to 2001 and consists of twenty-one prior misdemeanor and three felony convictions. During that period, he often did not go more than one year without picking up new charges, and in some instances, he even caught new charges while others were still pending. DeWitt also violated the terms of his probation with respect to many of his convictions. While DeWitt argues his criminal history mainly consists of petty crimes to “support his drug habit[,]” he has received the benefit of numerous lenient sentences. Appellant's Br. at 12. He squandered these opportunities and continued to live in defiance of the law for over two decades. Appellant's Br. at 12.

[26] The trial court also took DeWitt's substance abuse disorder into account when it ordered an executed sentence equal to the advisory sentence, suspended three years of the aggregate sentence to probation, and made DeWitt eligible for the DOC's Recovery While Incarcerated program after five actual years served. See Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010) (permitting appellate courts to consider “whether a portion of the sentence is ordered suspended or otherwise crafted using any of the variety of sentencing tools available to the trial judge” when conducting Rule 7(B) reviews). For these reasons, DeWitt's sentence is not inappropriate in light of the nature of his offense and his character.

Conclusion

[27] The trial court did not abuse its discretion in its rulings regarding the admission and exclusion of evidence. And while the trial court used an improper aggravator at sentencing, there were other valid aggravators to support DeWitt's sentence. Finally, DeWitt's sentence is not inappropriate in light of the nature of his offense and his character.

[28] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-48-4-6.1(a), (b)(1), (c)(1), (d)(1) (varying only by amount of methamphetamine possessed).

2.   The State alternatively argued that DeWitt had actually possessed the methamphetamine. See Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011) (“A person actually possesses contraband when she has direct physical control over it.”).

3.   DeWitt also notes that the trial court did not make a record of its balancing of the probative value and prejudicial effect of this exchange under Rule 403. While such balancing is a necessary step in the Rule 404(b) analysis, the trial court was not required to illustrate this analysis on the record. Because DeWitt makes no substantive argument on appeal that proper balancing would have resulted in the statement's exclusion, we cannot find the trial court abused its discretion by not excluding the statement under Rule 403.

4.   At trial, Officer Happel testified that the 911 call was not related to the incident involving DeWitt and that he “cleared out the 911 investigation” and “[a]sked the dispatcher to open a drug investigation at the same location[.]” Tr. Vol. 3 at 91. Officer Dalton testified that he became involved with DeWitt through “a separate call for service, a 911 call, [and] as we were clearing that up [ ] this incident came about.” Tr. Vol. 2 at 215.

DeBoer, Judge.

Chief Judge Altice and Judge Pyle concur. Altice, C.J., and Pyle, J., concur.