Justin Kirby, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Justin Kirby appeals his sentence for possession of a narcotic drug as a level 6 felony, operating a vehicle with a schedule I or II controlled substance or its metabolite in the blood as a class C misdemeanor, and being an habitual offender. We affirm.

Facts and Procedural History

[2] On October 22, 2022, Kristopher Kholmeier and his wife were driving in Batesville and noticed a car blocking the road. Kholmeier approached the vehicle where an older man was yelling at the driver of the car, later identified as Kirby, in an attempt to receive a response. Kholmeier observed that Kirby was not responsive and “blue in the face.” Transcript Volume II at 203. The car was running and “slowly moving.” Id. A woman approached the scene, said she was a nurse, and said Kirby had a faint pulse. One of the bystanders placed the car into park and turned off the ignition.

[3] At 1:00 p.m., Batesville Police Detective Jamie Straber received a dispatch regarding a possible overdose subject unresponsive in a vehicle “right by Hill Crest Golf Course Country Club on Walnut Street or 229.” Id. at 247. Detective Straber arrived at the scene within ninety seconds and observed “bystanders that were just trying to help.” Id. at 248. Batesville Police Officer Chris Smith also responded to the scene and observed the vehicle blocking the southbound side of State Road 229. Detective Straber observed Kirby exhibited “agonal breathing” and determined “if there wasn't an intervention, that it was possible there would be complete respiratory failure.” Id. at 249. Detective Straber and Officer Smith placed Kirby flat on the roadway, Detective Straber administered Narcan to Kirby, and Officer Smith began CPR. Kirby's breathing became “more regular and the color came back to his face.” Transcript Volume III at 3.

[4] Lucas Garvey, an EMT, responded to the scene while Kirby was unresponsive in the roadway. Garvey “established an airway and began breathing” for Kirby. Transcript Volume II at 224. Garvey assessed Kirby, determined that his pupils were reactive to light but constricted, and concluded that the constricted pupils, his being unresponsive, and the fact that his blood glucose level was good, was “usually an indication that it's a possible opioid overdose.” Id. at 226. After seven or eight minutes, Kirby became “completely alert and oriented” in the ambulance. Id.

[5] Officer Smith “read [Kirby] or gave him the Indiana Implied Consent,” and Kirby agreed to a blood test. Transcript Volume III at 38. Officer Smith transported Kirby to the hospital where a blood draw was conducted. The blood tested positive for benzodiazepine and fentanyl.

[6] Detective Straber requested a wrecker to tow Kirby's car, and the owner of the towing service moved the vehicle out of the street because “[i]t was blocking traffic and there was quite a bit of a backup with the big intersection that was right there.” Id. at 7. Detective Straber walked beside the vehicle while it was moved and then conducted an inventory search of the vehicle. She collected a baggie of white powder, which later tested positive for fentanyl, and a hollow tool from the center console area.

[7] Garvey wanted Kirby to go to the hospital because “Narcan doesn't last forever” and can “wear[ ] off.” Transcript Volume II at 228. Kirby did not agree to go to the hospital and signed a refusal. Garvey completed a Patient Care Record in which he indicated that his clinical impression was a heroin overdose.

[8] On June 19, 2023, the State charged Kirby with: Count I, possession of a narcotic drug as a level 6 felony; Count II, operating a vehicle while intoxicated endangering a person as a class A misdemeanor; and Count III, operating a vehicle with a schedule I or II controlled substance or its metabolite in the blood as a class C misdemeanor. The State also alleged that Kirby was an habitual offender. The State later moved to dismiss Count II, and the court granted the motion. On September 30, 2024, Kirby failed to appear for a pretrial hearing, and the court issued an arrest warrant. On November 28, 2024, Kirby “was booked into the Ripley County Jail.” Appellant's Appendix Volume III at 31.

[9] On March 25, 2025, the court held a jury trial. The State presented the testimony of multiple witnesses including Kholmeier, Detective Straber, Officer Smith, and Garvey. The jury found Kirby guilty as charged and also found him to be an habitual offender.

[10] On April 23, 2025, the court held a sentencing hearing. Kirby's father testified that Kirby was “a good person” with a “good heart” who had a traumatic brain injury five years earlier and lost his memory. Transcript Volume III at 193. He testified that Kirby “can't remember well enough to keep ․ jobs.” Id. He indicated that Kirby had been diagnosed with bipolar disorder and post-traumatic stress disorder. He stated that Kirby overdosed three times and “just got some problems that's got to be addressed.” Id. at 194. Kirby's mother testified that Kirby was “a good man.” Id. at 196.

[11] Michael Wagner, a volunteer who hosts the “Peer to Peer” program once a week in jail, testified that Kirby came to “Peer to Peer” in the jail every week and participated and “[i]t seems like he's accepted responsibility for what's happened.” Id. at 199. During questioning by the prosecutor, Wagner indicated that “it seems like [Kirby] accepts responsibility” but Kirby did not tell him that he had denied possessing any narcotics during the presentence investigation interview. Id. at 201.

[12] Kirby stated: “My battle with addiction is far more the hardest thing that I've ever gone up against and I have shamed my family, my community and myself by letting this battle momentarily defeat me.” Id. at 203. He asserted that he was a very active member in recovery and asked for “alternative placement.” Id.

[13] The court found the nature and circumstances of the crimes as an aggravator. Specifically, the court observed that Kirby “had overdosed for the third time in his life, while behind the wheel of a vehicle at a busy intersection putting many individuals, including himself in danger.” Id. at 215. It observed that the possession of fentanyl placed the EMS personnel, the officers, and the citizens who attempted to assist him in danger. The court considered Kirby had violated his pre-trial release by failing to appear resulting in a warrant. The court considered the fact that Kirby was on probation as an aggravating factor. It considered his criminal history as a significant aggravating factor. It also considered Kirby's lack of remorse as an aggravating factor. With respect to mitigating factors, the court considered Kirby's addiction, substance abuse history, and mental impairment. It observed that Kirby had the opportunity on five different occasions to participate in rehabilitation and “it's failed and it has now led to an overdose, behind the wheel, at a busy intersection.” Id. at 218.

[14] During the sentencing hearing, the court stated:

The Court will sentence him to two and a half years, all executed, on the Possession of a Narcotic, sixty days, all of that time executed on the Operating a Vehicle While Intoxicated, they run concurrent with one another․ As to the Habitual Offender, the Court could sentence Mr. Kirby to six years. I agree, I don't believe that Mr. Kirby is the, what the Court of Appeals would state is the worst of the worst for a completely maximum sentence. I don't believe the, but I do believe that an enhanced sentence is appropriate. The Court will sentence him to four years, with all of that time executed on the Habitual Offender.

Id. at 218.

[15] The Judgment of Conviction and Sentencing Order indicates that the court sentenced Kirby to 910 days for possession of a narcotic drug as a level 6 felony and a concurrent sentence of 60 days for operating a vehicle with a schedule I or II controlled substance. It also shows that the court enhanced the sentence by four years due to his status as an habitual offender.

Discussion

[16] Kirby argues that his sentence is inappropriate. He argues that his “sentence of two and one half (2 1/212) years enhanced by six (6) years is the maximum sentence allowed by law.” Appellant's Brief at 13. He asserts that there was no evidence that he operated the vehicle while conscious other than on a private drive of a country club. He contends that there was no evidence of who placed the fentanyl in the vehicle or that any violence or threat of violence accompanied the possession of the fentanyl. He argues there was no victim. He acknowledges that he has a criminal history but asserts it was remote in time and manner from the underlying offense. He contends he had been employed at several factories, he was a good person with a good heart who struggled to maintain employment due to injury, and he had been diagnosed with bipolar disorder and PTSD. He argues that he became addicted to illicit substances resulting in three overdoses and needed mental health treatment and addiction rehabilitation. He points to his participation in a “Peer to Peer” support group during pretrial incarceration. Id. at 15. The State contends that the sentence is not inappropriate and correctly points out that Kirby mistakenly states the habitual offender enhancement as being six years instead of four years.

[17] Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by statute if, after due consideration of the trial court's decision, [we find] that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Under this rule, the burden is on the defendant to persuade the appellate court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

[18] Ind. Code § 35-50-2-7 provides that a person who commits a level 6 felony shall be imprisoned for a fixed term of between six months and two and one-half years, with the advisory sentence being one year. At the time of the offense, Ind. Code § 35-50-2-8(i) provided that the court shall sentence a person found to be an habitual offender to an additional fixed term that is between two years and six years for a person convicted of a level 6 felony and the additional term is nonsuspendible.¹ Ind. Code § 35-50-3-4 provides that a person who commits a class C misdemeanor shall be imprisoned for a fixed term of not more than sixty days.

[19] Our review of the nature of the offenses reveals that Kirby used fentanyl, operated a vehicle, overdosed, and became unconscious, which resulted in his vehicle blocking traffic in a roadway. Multiple bystanders approached Kirby's vehicle, which contained fentanyl, and one of the bystanders placed his vehicle into park.

[20] Our review of the character of the offender reveals that the presentence investigation report (“PSI”) indicates that Kirby reported his employment history included “Heartwood Manufacturing, Flaspor Concrete, Wood Mizer and Ford Motor Company,” but he “did not know dates.” Appellant's Appendix Volume III at 37. Kirby indicated that he suffers from a traumatic brain injury related to an overdose and suffers from short-term memory loss. He reported first using prescription medication to “get high” three years earlier and provided “no other information about his use of opioids.” Id. at 38. He stated that he had participated in self-help meetings such as AA and NA and had completed inpatient rehabilitation at Hickory Recovery and Sunrise Recovery.

[21] The PSI reveals that Kirby, who was born in 1983, was adjudicated delinquent as a juvenile for residential entry in 2001. As an adult, Kirby was convicted of public intoxication as a class B misdemeanor in 2005; dealing in a schedule IV controlled substance as a class C felony in 2006; battery and resisting law enforcement as class A misdemeanors in 2007; domestic battery as a class A misdemeanor and burglary as a class B felony in 2008; possession of a controlled substance as a class A misdemeanor in 2011; two counts of auto theft and obstruction of justice as level 6 felonies in 2018; unlawful possession of a firearm by a serious violent felon as a level 4 felony and carrying a handgun without a license with prior conviction within fifteen years as a level 5 felony in 2021; and interfering with a drug or alcohol screening test as a class B misdemeanor in 2022. The PSI states that Kirby “received his first adult criminal conviction at 21 years of age” and, “[a]s an adult, [he] has accumulated at least six prior misdemeanor convictions and at least seven prior felony convictions.” Id. at 36. It also states that Kirby “has been found to be in violation of his probation supervision at least four times in the past.” Id. The PSI indicates that Kirby's overall risk assessment score using the Indiana risk assessment tool places him in the high risk to reoffend category.

[22] After due consideration, we conclude that Kirby has not sustained his burden of establishing that his sentence is inappropriate in light of the nature of the offenses and his character.

[23] For the foregoing reasons, we affirm Kirby's sentence.

[24] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-50-2-8(i) was amended, effective July 1, 2023, to provide that the court shall sentence a person found to be an habitual offender to an additional fixed term that is between three and six years for a person convicted of a level 6 felony. Pub. Law No. 37-2023, § 2 (eff. July 1, 2023).

Brown, Judge.

Feilx, J., and Scheele, J., concur.