Leon L. Hershberger, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] After a two-day jury trial, Leon Hershberger was convicted of Level 3 felony possession of methamphetamine and Level 5 felony possession of cocaine. The trial court imposed a nine-year aggregate sentence. Hershberger appeals, arguing the court violated his constitutional rights by admitting certain evidence and that his sentence is inappropriate under Appellate Rule 7(B). We affirm.

Facts and Procedural Histor

[2] In December 2023, Hershberger had property in Wabash which had a barn, a garage, a shed, and a camper in which he lived with his nineteen-year-old daughter and fourteen-year-old son. In the early morning hours of December 10, Hershberger had an adverse reaction to a THC edible prompting his daughter to call 911. He was pale, couldn't stand up on his own, and indicated he believed he was dying. Medical personnel were the first to arrive at Hershberger's home, followed by two volunteer firefighters. After the medical personnel found Hershberger in the shed on his property, they placed him in the back of the ambulance. The law enforcement officers also dispatched to the scene were initially told that they no longer needed to respond. However, their presence was re-requested four minutes later when Hershberger became uncooperative in the ambulance.

[3] While waiting for the police to arrive, a medical provider asked the two firefighters to find the packaging Hershberger's edible came in because it could give them information that would help treat him. When the firefighters asked Hershberger's daughter if she knew what exactly he had consumed, she said she didn't know, but that whatever he took would be in the shed where they found him. They asked her if they could look in the shed, and she said yes and led them to it. The firefighters went into the shed and looked inside a trashcan and other open bins. While they didn't find the packaging, they did observe a firearm that had been placed on an open shelving unit.

[4] Deputy Corey Phillipy of the Wabash County Sheriff's Department eventually arrived on scene. The first responders told him they found Hershberger in the shed and there were unsecured firearms inside. Then, because the 911 call indicated Hershberger had made statements about dying, Deputy Phillipy went to the ambulance to ask him some questions about his mental health, including whether he had intentions of harming himself or others. Hershberger explained that was not his intention, and he had only made those statements due to the effects of the edible. Deputy Phillipy asked if he was under the influence of any other substances, and Hershberger said he had also used methamphetamine. Then the deputy spoke with the daughter who explained that Hershberger used edibles he purchased out of state and “kept most of his stuff in the shed in a breadbox ․” Transcript Vol. 2 at 207. She also said he would give her and her brother “marijuana edibles for anxiety and sleep.” Id. at 40.

[5] Based on his conversations with Hershberger and his daughter, Deputy Phillipy obtained a search warrant for all the buildings on the property. The warrant gave him authority to search “[a]ny and all detached buildings on the property” for the following:

Controlled Substances/Illegal Narcotics. Any items of drug paraphernalia utilized to distribute, sell, store, cut, weigh, measure, package, transport, conceal or use controlled substances/illegal narcotics. Any items such as a safe or locked container or the contents and any force deemed necessary to open the same will be permitted․ Firearms and ammunition including, but not limited to handguns, pistols, revolvers, rifles, shotguns, machine-guns and other weapons․

Exhibits at 12. A team of officers conducted the search. Deputy Phillipy searched the shed and located an antique breadbox on the open shelving unit which contained “a large amount of [a] crystal-like substance” in a Ziploc bag, cocaine, drug paraphernalia, a firearm, and marijuana. Tr. Vol. 2 at 215. Another firearm was found on the shelf next to the breadbox. Deputy Phillipy photographed all these items and secured them until the Drug Task Force detective arrived to retrieve them. See Ex. at 32.

[6] Three days later, the State charged Hershberger with Level 3 felony possession of methamphetamine,¹ Level 5 felony possession of cocaine,² and Class B misdemeanor possession of marijuana.³ Prior to trial, Hershberger filed a motion to suppress “as evidence ․ all items seized prior, during, or as a result of the search warrant ․” Appellant's Appendix Vol. 2 at 78. He claimed the search was unconstitutional under the Fourth Amendment to the U.S. Constitution and Article 1, Section 11 of the Indiana Constitution. More specifically, he argued the search warrant: (1) “failed to advise the Judge who issued [it] of material facts,” (2) “did not describe with particularity the place to be searched,” and (3) “did not specifically list items to be search[ed] for an[d] seized, and thus was a general, overly broad warrant ․” Id. at 79. After the hearing at which Deputy Phillipy and one of the firefighters testified about their searches, the trial court denied the motion to suppress. A few days later, the court granted the State's motion to dismiss the possession of marijuana charge against Hershberger.

[7] At trial, Hershberger's daughter, Deputy Phillipy, the Drug Task Force detective, and the forensic scientist testified. Without objection from Hershberger, the State presented Deputy Phillipy's photographs depicting Hershberger's shed, the breadbox containing the drugs, paraphernalia, and firearms as well as the forensic scientist's certificate of analysis which identified the type and weight of each substance. Then the State moved to admit the physical items (drugs, paraphernalia, firearms) into evidence. Although Hershberger raised the same objections he had in his motion to suppress, the trial court admitted the evidence. Hershberger was found guilty on both remaining counts, and the court sentenced him to an aggregate sentence of nine years executed in the Department of Correction (DOC).

Discussion and Decision

1. Admission of Evidence

[8] First, Hershberger argues “the trial court erred in admitting into evidence ․ the contraband discovered” during the search of his property. Appellant's Brief at 25. He asserts the same arguments made in his motion to suppress, claiming the drugs, paraphernalia, and firearms were obtained as a result of an unlawful search and seizure in violation of his rights under the U.S. and Indiana constitutions. The State contends Hershberger “has waived his challenge to the admission of evidence by failing to raise a timely objection at trial.” Appellee's Br. at 13. While Hershberger filed a motion to suppress this evidence prior to trial, he was required to “reassert his objection at trial contemporaneously with the introduction of the evidence to preserve the error for appeal.” Lundquist v. State, 834 N.E.2d 1061, 1067 (Ind. Ct. App. 2005). Critically, “to preserve a challenge to the admission of evidence, the defendant must object each time the evidence is offered.” Id. (citing Jenkins v. State, 627 N.E.2d 789, 797 (Ind. 1993), reh'g denied, cert. denied).⁴

[9] Hershberger claims he preserved this issue for appeal because he objected at trial to the admission of the physical evidence. See Tr. Vol. 2 at 229-31 (objecting to the admission of the firearms); Tr. Vol. 3 at 29 (objecting to the admission of the methamphetamine and cocaine). However, he did not object to Deputy Phillipy's lengthy testimony describing the drugs, paraphernalia, and firearms, photographs of these items, or the forensic scientist's testimony and analysis identifying the type and amount of each substance. In fact, he specifically stated he had “no objection” to the admission of the photographs and the forensic analysis. Tr. Vol. 2 at 216-17, 219-24; Tr. Vol. 3 at 26. “Any error in admission of evidence is harmless if the same or similar evidence has been admitted without objection.” Edwards v. State, 730 N.E.2d 1286, 1289 (Ind. Ct. App. 2000) (quoting Crafton v. State, 450 N.E.2d 1042, 1055 (Ind. Ct. App. 1983)). Hershberger's objection to the physical evidence alone was therefore not enough, and his failure to object to the plethora of additional evidence presented from the search of his property has resulted in waiver of his challenge on appeal. See id. (concluding the defendant waived a challenge to the admission of checks where he failed to object to testimony about their significance and bank statements upon which they were drawn); see also Miller v. State, No. 24A-CR-2618, 2025 WL 1066520, at *3 (Ind. Ct. App. April 9, 2025) (mem.) (concluding defendant waived her claim that the court erred by admitting the results of her blood test where she failed to object to multiple witnesses’ testimonies about the blood draw and testing, including the forensic scientist's testimony about the results).

2. Sentencing

[10] Hershberger also argues his sentence is inappropriate and requests we exercise our authority under Appellate Rule 7(B) to revise it. Under Rule 7(B), we may revise a defendant's sentence “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.” We grant considerable deference to the trial court's sentencing decision. Wilson v. State, 221 N.E.3d 667, 679 (Ind. Ct. App. 2023). Absent “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)[,]” we will affirm the sentence. Id. (quoting Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)). It is the defendant's burden to prove his sentence is inappropriate. Littlefield v. State, 215 N.E.3d 1081, 1089 (Ind. Ct. App. 2023), trans. denied.

[11] We begin by looking at the advisory sentence for the relevant offenses. Id. The sentencing range for a Level 3 felony is between three and sixteen years with an advisory sentence of nine years. Ind. Code § 35-50-2-5(b) (2025). The sentencing range for a Level 5 felony is between one and six years with an advisory sentence of three years. Ind. Code § 35-50-2-6(b) (2025). In our review, “we ‘focus on the forest—the aggregate sentence—rather than the trees—consecutive or concurrent, number of counts, or length of the sentence on any individual count.’ ” Norton v. State, 235 N.E.3d 1285, 1291 (Ind. Ct. App. 2024) (quoting Brown v. State, 10 N.E.3d 1, 8 (Ind. 2014)). Here, the trial court sentenced Hershberger to nine years on the Level 3 felony, which is the advisory sentence for that offense. He was sentenced to six years on the Level 5 felony to be served concurrently with Count I. Thus, Hershberger's aggregate sentence is nine years executed in the DOC, which is equivalent to the advisory sentence for his highest offense.

[12] Turning then to the nature of his offenses, Hershberger argues his crimes “are not very egregious due to the fact that this type of crime is usually referred to [as] a ‘victimless’ crime[,]” and he did not possess “great quantities” of drugs. Appellant's Br. at 23. He claims the only evidence of egregiousness was “the shear [sic] fact that a firearm was found and claimed to be in his possession.” Id. While we agree that the presence of firearms contributes to the overall nature of his offenses, we disagree with Hershberger's classification of his crimes as “victimless.” As our Supreme Court has recognized, “distributing or possessing even small amounts of drugs threatens society.” State v. Timbs, 169 N.E.3d 361, 373 (Ind. 2021). And Hershberger possessed a significant amount of methamphetamine at just over twenty-four grams, which falls near the higher end of the quantity necessary to elevate the offense of possession of methamphetamine to a Level 3 felony. See Ind. Code § 35-48-4-6.1(d)(2) (2023) (making it a Level 3 felony to possess between ten and twenty-eight grams of methamphetamine when an enhancing circumstance applies). Furthermore, Hershberger stored these substances in a place that was accessible to his two children, one of whom was a minor. And there was evidence that Hershberger provided drugs to his children on occasion.

[13] As for Hershberger's character, we consider “a wide range of factors, including his age, criminal history, background, and past rehabilitative efforts.” Jones v. State, 269 N.E.3d 862, 870 (Ind. Ct. App. 2025). “Even a minor criminal history is a poor reflection of a defendant's character.” Prince v. State, 148 N.E.3d 1171, 1174 (Ind. Ct. App. 2020). Hershberger has three prior felony convictions, two of which were for possession of cocaine. While we recognize the age of those prior convictions, we find it significant that Hershberger has ended up with another conviction for possession of cocaine, suggesting he has not learned from his past mistakes. And to make matters worse, this time his conviction included multiple firearms and a conviction for possession of methamphetamine. Given these facts, Hershberger has failed to show his advisory sentence was inappropriate in light of the nature of his offenses or his character.

Conclusion

[14] We affirm Hershberger's convictions and his sentence.

[15] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-48-4-6.1(a), (d)(2) (2023).

2.   Ind. Code § 35-48-4-6(a), (b)(2) (2023).

3.   Ind. Code § 35-48-4-11(a)(1) (2023).

4.   We note that our Supreme Court has recently amended Indiana Evidence Rule 103(b), and in the future, “[o]nce the court rules definitively on the record—either before trial or at trial—a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” Rodriguez v. State, 278 N.E.3d 1170, 1172 n.2 (Ind. Ct. App. 2026) (quoting Ex. A, Order Amending Rules of Evidence, No. 26S-MS-8 (Ind. Mar. 6. 2026)), trans. denied. However, that amendment does not take effect until July 1, 2026. See id.

DeBoer, Judge.

Mathias, J., and Kenworthy, J., concur.