Court of Appeals of IndianaHearing oral argument at

Ivy Tech Community College Columbus, IN

Tuesday, November 13 @ 1:30 p.m.

Sebastian D. Durstockv.

State of Indiana15A01-1711-CR-02718

On appeal from theDearborn Circuit Court

SYNOPSIS

On January 13, 2017, Lawrenceburg police officers and emergency medical providers responded to the report of an unconscious woman. As they were assisting the woman, officers heard water running in the restroom. Sebastian Durstock walked out of the restroom, and officers noticed that he appeared to be under the influence of opiates. A resident of the apartment gave officers permission to search the bathroom, where the officers found a backpack containing a gun and a scale. The officers did a pat down search of Durstock for weapons and felt an object consistent with a syringe in his pocket. Officers removed the item, which was a syringe, and placed Durstock under arrest for unlawful possession of a syringe. During a search incident to the arrest, officers found a bag containing fentanyl in Durstock’s pocket.

Durstock was convicted of dealing in a narcotic drug, a Level 2 felony, and the trial court sentenced him to seventeen and one-half years with two and one-half years suspended to probation. Durstock now appeals and raises three issues: (1) whether the trial court erred by admitting evidence found on Durstock’s person during the pat down search; (2) whether the evidence is sufficient to sustain his conviction; and (3) whether his sentence is inappropriate.

Bailey continued from p. 3Indiana Bar Foundation Law-Related Education Award for their commitment to bringing oral arguments into community settings. In February of 2006, he served as the Distinguished Jurist in Residence at Stetson University College of Law; in 2007-08, he was the Moderator of the Indianapolis Bar Association’s Bar Leader Series; in 2009, he was designated an ASTAR Science and Technology Fellow. Over the years, Judge Bailey has served on numerous committees of the bench and bar, including as the Chair of the Indiana State Bar Association's Appellate Practice Section and as a Board Member of the Indiana Judges Association and the Indiana University McKinney School of Law Alumni Association. Currently, he is a member of the Supreme Court Committee on Rules of Practice and Procedure. Judge Bailey also serves as an adjunct professor at the University of Indianapolis. Judge Bailey was retained on the Court of Appeals in 2000 and 2010. His wife is a professor; the couple has two adult children.

Altice continued from p. 3 Judge Altice also served as chair of the Marion Superior Court Criminal Term from 2005-2007, as a member of the Executive Committee for the Marion Superior Court from 2007-2009, and as Presiding Judge of the Marion Superior Court from 2009 to 2011.Judge Altice moved to the civil division of the Marion Superior Court in 2013 and was appointed chair of the Marion Superior Court Civil Term in January 2015. Throughout his judicial career, Judge Altice has held leadership roles in organizations that improve the administration of justice. He accepted special assignments from the Indiana Supreme Court on the Judicial Performance Task Force and the Cameras in the Courtroom project, which allowed cameras in certain courtrooms under limited conditions. The Duval Work Release Center was built and opened during his tenure on the Marion County Community Corrections Advisory Board. Judge Altice is a member of the Indiana Judges Association, the Indiana State Bar Association, and the Indianapolis Bar Association. In April 2015, Judge Altice was appointed to serve on an ad hoc Indiana Tax Court Advisory Task Force. His community activities include prior service on the Board of Directors of these organizations: Indianapolis Police Athletic League; the Martin Luther King Community Development Corp.; and Coburn Place Safe Haven, a transitional housing facility for domestic abuse victims. He has presented on legal and ethical issues for the Indiana Continuing Legal Education Forum, the Indiana Judicial Center, and various Indiana bar associations. In his spare time, he enjoys gardening, golf and reading. He and his wife, Kris, an attorney who is General Counsel for Shiel Sexton, have two adult children.

Tavitas continued from p. 3member for Indiana Legal Services, Inc. She was elected as a board member of the Notre Dame Law School Association Board in 2010. She served as a judicial appointee member of the Indiana Supreme Court Domestic Relations Committee from 2012 through 2018 and now serves on the Civil Instructions Committee. Judge Tavitas is an active member of several national, state, and local bar associations. She has served as a moot court judge for the Notre Dame Law School Trial Advocacy Program, and as a judge for the "We the People" Program sponsored by the Indiana State Bar Association. She was named Most Influential Woman of Northwest Indiana in the Law in 2015. She is a frequent speaker for lawyers, judges, and court staff trainings throughout Indiana. Her favorite activities include spending time with her three children and her granddaughter. She enjoys reading, Notre Dame football games, traveling, hiking, and the arts.

Court of Appeals Mission Statement“To serve all people by providing equal justice under law”

Today’s Panel of Judges

The Honorable Elizabeth F. Tavitas

Lake County

The Honorable L. Mark Bailey

Decatur County

The Honorable Robert R. Altice

Marion County

Lloyd Mark Bailey, was raised on the family farm in Decatur County. He was educated in Indiana, earning a B.A. from the University of Indianapolis (1978); a J.D. from Indiana UniversityMcKinney School of Law (1982);and an M.B.A. from IndianaWesleyan University (1999). Healso completed the graduateprogram for Indiana Judges. JudgeBailey was appointed to the IndianaCourt of Appeals by GovernorFrank O’Bannon in 1998, afterhaving served as judge of theDecatur County and DecaturSuperior Courts.During his legal career, Judge

Bailey has served public interestand professional organizations invarious capacities. He was the firstChairperson of the Indiana ProBono Commission, having beenawarded the Indiana BarFoundation’s Pro Bono PublicoAward and the 2002 RandallShepard Award for his pro bonocontributions. His writings include:“A New Generation for Pro Bono,”“Pro Bono Participation PreservesJustice,” and “An Invitation toBecome Part of the Solution,” allpublished in the Indiana Lawyer.Judge Bailey also chaired the LocalCoordinating Council of theGovernor’s Task Force for a Drug-Free Indiana and the JudicialConference Alternative DisputeResolution Committee.Additionally, he has served on theJudicial Education Committee ofthe Judicial Conference of Indiana. In 2004, Judge Bailey and his First

District colleagues received thecontinued on p. 4

Robert R. Altice, Jr., was appointed to the Court of Appeals by Gov. Mike Pence and began his service on Sept. 2, 2015. Judge Altice earned his undergraduate degree from Miami University, Oxford, OH, a master’s degree in criminal justice administration from the University of Central Missouri, and his law degree from the University of Missouri-Kansas City School of Law. Judge Altice began his career handling felony cases as a deputy prosecutor in Jackson County, MO, before being promoted to Chief Deputy Prosecutor for the Drug Unit. He then practiced with a Kansas City civil law firm, focusing on medical malpractice defense. After moving to Indianapolis, he concentrated on insurance defense in private practice. Judge Altice returned to prosecution in 1994, handling a major felony caseload as a deputy prosecutor for the Marion County Prosecutor’s Office. He served as Chief of the Felony Division from 1997-2000, trying more than 100 major felony jury trials, including 25 murder cases. While serving briefly as the Office’s Chief Counsel, he helped amend Indiana laws on domestic battery and possession of firearms by violent felons. Judge Altice was elected to the Marion County bench in 2000. As judge of Marion Superior Court, Criminal Division 2 from 2001-2012, he presided at 250 major felony jury trials, including 75 murder trials (seven death penalty cases).continued on p. 4

Elizabeth F. Tavitas, was appointed to the Court of Appeals by Governor Eric Holcomb and began her service on Aug. 6, 2018. Judge Tavitas received her B.A. degree, cum laude, from the University of Notre Dame in 1985, and earned her J.D. degree from the Notre Dame Law School in 1990. She was admitted to the Indiana Bar; United States District Court, Northern District of Indiana; and United States District Court, Southern District of Indiana in 1990. She is a 2007 Indiana Judicial College graduate and a graduate of the 2012 Indiana Graduate Program for Judges. Prior to her appointment to the Court of Appeals, Judge Tavitas served for more than 12 years as Judge of the Superior Court of Lake County, Civil Division. Judge Tavitas served as a deputy prosecutor in the Lake County Prosecutor's Office; served as a juvenile public defender in the Lake Superior Court, Juvenile Division; and also maintained a private practice. In 1998, she was appointed to the position of referee in the Lake Superior Court, Juvenile Division, where she served until 2006. During that time, Judge Tavitas served on the Juvenile Benchbook Committee. She served as Chair of the NWI Volunteer Lawyers, Inc. from 2007 through 2012, and currently continues to serve as a board member. She previously served as a judicial appointee member of the Indiana Pro Bono Commission from 2007 through 2012. From 2009 through 2013, she served as a board continued on p. 4

Attorneys For The PartiesAppellant AttorneyPatrick Magrath is a 2003 Graduate of Ball State University in Muncie, Indiana, where he received a Bachelor of Science degree with honors. In May of 2007, Pat graduated Magna Cum Laude from Indiana University School of Law in Bloomington, Indiana. While at IU, Pat participated in the Family Law Clinic and the Sherman Minton Moot Court Competition as Top Brief Writer and Member of the Board. Pat is licensed to practice law in the Northern and Southern Districts of Indiana.

Appellee AttorneyCaryn N. Szyper joined the Indiana Attorney General’s Criminal Appeals Section in June 2016 after serving in the Civil Litigation Section for three years. Prior to joining the Office of the Indiana Attorney General, Mrs. Szyper was a Presidential Management Fellow with the United States Government, where she served in details as a Special Assistant U.S. Attorney in Louisville, Kentucky, and as a Special Assistant to the Director of the Department of Homeland Security’s Center for Faith-Based and Neighborhood Partnerships. She also worked as an associate attorney at Clark, Quinn, Moses, Scott & Grahn, LLP in Indianapolis. Mrs. Szyper is a magna cum laude graduate of both the University of Kentucky College of Law and the University of Indianapolis. While in law school, she served as an editor on the Kentucky Law Journal and as a member of the moot court board. Mrs. Szyper is originally from Hebron, Kentucky, but now lives in Indianapolis with her husband, Rex, and their 16-month old daughter, Quinn.

About the Court of AppealsAs the second-highest court in Indiana, the Court of Appeals hears appeals from the state’s trial courts and some state agencies. The Court does not preside over trials and must accept all appeals sent to it, with the exception of:

• Cases in which the death penalty or life-without-parole is rendered (appealed directly to the IndianaSupreme Court);

• Cases in which statutes are declared unconstitutional by a trial court (automatically appealed to theSupreme Court);

• Attorney disciplinary cases (which also go to the Supreme Court); and,• Cases involving taxation (which go to the Indiana Tax Court).

As a result, the 15 members of the Court issue approximately 2,000 written opinions each year. A decision of the Court of Appeals of Indiana is final unless granted further review by the Indiana Supreme Court.

The Court hears cases only in three-judge panels. All panels have statewide jurisdiction and rotate three times per year. Cases are randomly assigned. In addition, there is no deadline for the Court to reach a decision in each case; however, the Court strives to issue decisions within four months of receiving an appeal. Opinions are often issued earlier.

What happens after oral argument? After oral argument, the judges confer to decide the outcome. A designated writing judge drafts an opinion for the others’ review. Final language may involve several drafts and significant collaboration. Generally, opinions affirm or reverse lower court rulings in whole. But some affirm in part, some reverse in part, and some do both. Not infrequently, the opinion instructs the trial court about the next appropriate course of action. Many opinions are unanimous, although non-unanimous decisions (2-1) are not uncommon. Dissenting judges usually express their views in a separate opinion that becomes part of the permanent record of the case. Judges might also write separate, concurring opinions that emphasize different points of law or facts than the main opinion. No rules or laws govern how fast the court must issue an opinion. But the court strives to decide cases within four months of receiving all briefs, transcripts and other records. Once issued, all opinions are published on www.courts.in.gov and maintained in the permanent records of the Clerk of Appellate Courts. Parties can appeal decisions of the Court of Appeals to the Indiana Supreme Court by filing a petition to transfer within a prescribed number of days. But transfer is not automatic; the Supreme Court can grant or deny transfer with or without giving a reason. If the petition is denied, the Appeals Court decision stands.