Samuel R. White v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 22 2017, 6:58 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Adam C. James Curtis T. Hill, Jr. Shelbyville, Indiana Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Samuel R. White, February 22, 2017 Appellant-Defendant, Court of Appeals Case No. 70A04-1607-CR-1752 v. Appeal from the Rush Superior Court State of Indiana, The Honorable Brian D. Hill, Appellee-Plaintiff. Judge Trial Court Cause No. 70D01-1506-F3-312

Bailey, Judge. Court of Appeals of Indiana | Memorandum Decision 70A04-1607-CR-1752 | February 22, 2017 Page 1 of 8

Case Summary [1] Samuel White (“White”) appeals his conviction and sentence for Conspiracy to

Commit Dealing in Methamphetamine, a Level 3 felony.1 We affirm.

Issues [2] White presents two issues for review:

I. Whether his conviction is supported by sufficient evidence; and

II. Whether his fifteen-year sentence is inappropriate.

Facts and Procedural History [3] On June 3, 2015, the Rushville Police Department used a confidential

informant, Shawn Williams (“Williams”), to place a series of recorded calls to

White to arrange a purchase of methamphetamine. In the first call, Williams

asked White if he could purchase a quarter-ounce (seven grams) of

methamphetamine. White agreed to sell that amount of methamphetamine for

$450. In the second and third calls, Williams falsely claimed that his car had

broken down. He asked White to bring the methamphetamine to him; White

agreed to do so for a delivery fee of $75. In the fourth call, White and Williams

1 Ind. Code § § 35-48-4-1.1, 35-41-5-2.

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confirmed that Williams was to purchase a quarter-ounce of methamphetamine

and pay a $75 delivery fee. [4] Police officers searched Williams, provided him with $525 in cash, and

transported him to a designated meeting location. White drove up in a van; his

mother, Laura White (“Laura”), was sitting in the passenger’s seat. Williams

briefly entered White’s van. When he returned to the unmarked police vehicle,

Williams produced a substance later tested and identified as 1.36 grams of

methamphetamine. Williams was again searched, and found to be without

cash or additional methamphetamine. [5] Police officers stopped White’s van and arrested White and Laura. During a

search at the jail, $525 in cash was found in Laura’s bra. In a police interview,

White claimed to have thrown the buy money out the window. He also

claimed that an unidentified female who “sells ounces” was his source. (Tr. at

39.) [6] White was charged with, and convicted of, three counts related to that

transaction. Because of double jeopardy concerns, the trial court vacated the

judgment entered upon two of White’s convictions and sentenced him only

upon the conviction for Conspiracy to Commit Dealing in Methamphetamine.

This appeal ensued.

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Discussion and Decision Sufficiency of the Evidence [7] Dealing in Methamphetamine is committed when a person knowingly or

intentionally manufactures, finances the manufacture of, delivers, or finances

the delivery of methamphetamine or possesses it with the intent to do the same.

I.C. § 35-48-4-1.1(a)(1). The offense is enhanced to a Level 3 felony if the

amount of the drug involved is at least five but less than ten grams. I.C. § 35-

48-4-1.1(d). Conspiracy to commit a felony has three elements: (1) the intent to

commit a felony, (2) an agreement with another person to commit a felony, and

(3) an overt act performed by either the defendant or the person with whom the

defendant has entered into the agreement. Owens v. State, 929 N.E.2d 754, 756

(Ind. 2010). Thus, the State was required to establish, beyond a reasonable

doubt, that White, with intent to commit dealing in methamphetamine, agreed

with Williams to deliver more than five grams of methamphetamine, and one of

the conspirators performed an overt act in furtherance of the agreement. [8] When reviewing the sufficiency of the evidence to support a criminal

conviction, we do not reweigh the evidence or judge witness credibility.

McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). Considering only the

evidence supporting the verdict and any reasonable inferences to be drawn

therefrom, we will affirm if there is substantial evidence of probative value such

that a reasonable trier of fact could have concluded the defendant was guilty

beyond a reasonable doubt. Id.

Court of Appeals of Indiana | Memorandum Decision 70A04-1607-CR-1752 | February 22, 2017 Page 4 of 8 [9] Here, the State presented evidence that Williams and White participated in four

telephone calls arranging a methamphetamine sale. The terms agreed upon

were that White was to sell one-quarter ounce of methamphetamine to

Williams for $475. White was to deliver the drug to Williams for an additional

$75. Law enforcement officers searched Williams, provided him with

previously-photocopied cash, and transported him to a meeting place. Williams

briefly entered White’s vehicle and returned with methamphetamine. The cash

was found on White’s mother, who had been inside his vehicle at the exchange. [10] However, White claims that the evidence is insufficient to support his

conviction because “the confidential informant had personal motivation,

namely a financial incentive” and “he lied to White to get him to travel to Rush

County.” Appellant’s Br. at 7. White points to Williams’s admissions that he

needed money to pay his bills and had lied to a man that he considered a friend.

White also observes that Williams did not actually fulfill an agreement to

deliver a quarter-ounce (seven grams); Indiana State Police Laboratory testing

indicated that the methamphetamine weighed 1.36 grams. [11] In essence, White claims that Williams’s testimony should be discarded because

he lacks credibility. However, we do not make credibility determinations.

McHenry, 820 N.E.2d at 126. Moreover, this is not a case in which a single

witness offered uncorroborated testimony, such that the incredible dubiosity

rule might be raised. See Moore v. State, 27 N.E.3d 749, 755 (Ind. 2015)

(observing that the incredible dubiosity rule allows a court to impinge upon the

responsibility of the jury to judge witness credibility only when a sole witness

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has presented equivocal or coerced testimony and there is a complete lack of

circumstantial evidence of the appellant’s guilt). [12] As White observes, less than seven grams of methamphetamine was actually

delivered. However, White was convicted of conspiring to deliver at least five

grams of methamphetamine. The evidence showed that White and Williams

set the terms of sale, that is, $475 for a quarter-ounce of methamphetamine.

White then traveled to Williams’s location and provided a package of

methamphetamine, acts in furtherance of the conspiracy. To establish the

conspiracy, the State was not also required to establish that a particular weight

of drug was in fact delivered. “Well-settled Indiana law provides that the

conspiracy to commit a felony is a distinct offense from the contemplated

felony.” Owens, 929 N.E.2d at 756. A conspiracy is complete upon reaching an

agreement and the performance of an overt act in furtherance of the agreement.

Id. Sufficient evidence supports White’s conviction.

Sentence [13] The sentencing range for a Level 3 felony is 3 years to 16 years, with an

advisory sentence of 9 years. I.C. § 35-50-2-5. White argues that his fifteen-

year sentence is inappropriate, and asks that we revise it, pursuant to Indiana

Appellate Rule 7(B), which states, “The Court may revise a sentence authorized

by statute if, after due consideration of the trial court’s decision, the Court finds

that the sentence is inappropriate in light of the nature of the offense and the

character of the offender.”

Court of Appeals of Indiana | Memorandum Decision 70A04-1607-CR-1752 | February 22, 2017 Page 6 of 8 [14] When reviewing a sentence, our principal role is to leaven the outliers rather

than necessarily achieve what is perceived as the correct result. Cardwell v. State,

895 N.E.2d 1219, 1225 (Ind. 2008). “We do not look to determine if the

sentence was appropriate; instead we look to make sure the sentence was not

inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). [15] As for the nature of the offense, we observe that “the advisory sentence is the

starting point the Legislature selected as appropriate for the crime committed.”

Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). White’s sentence is above the

advisory but below the maximum. There is nothing particularly remarkable

about White’s agreement to provide methamphetamine to Williams and his

undertaking of efforts to do so. [16] As for White’s character, he has three prior felony and five prior misdemeanor

convictions. These include resisting law enforcement, possession of marijuana,

operating a vehicle while intoxicated, child selling, failure to stop after an

accident, possession of a narcotic drug, and dealing in methamphetamine.

When he committed the instant offense, White was on parole for his Class A

felony dealing in methamphetamine conviction. He had also violated

probation in the past. We conclude that White has not demonstrated that his

sentence is inappropriate.

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Conclusion [17] Sufficient evidence supports White’s conviction. His sentence is not

inappropriate. [18] Affirmed.

Najam, J., and May, J., concur.

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