Oscar K. Griffin v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 30 2018, 8:54 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mary P. Lake Curtis T. Hill, Jr. La Porte, Indiana Attorney General of Indiana

Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Oscar K. Griffin, January 30, 2018 Appellant-Defendant, Court of Appeals Case No. 46A05-1703-CR-647 v. Appeal from the La Porte Circuit Court State of Indiana, The Honorable Thomas J. Appellee-Plaintiff. Alevizos, Judge Trial Court Cause No. 46C01-1606-F5-538

Najam, Judge. Court of Appeals of Indiana | Memorandum Decision 46A05-1703-CR-647 | January 30, 2018 Page 1 of 11

Statement of the Case [1] Oscar K. Griffin appeals his conviction and sentence for conspiracy to commit

robbery, as a Level 3 felony, and his sentence following his conviction for

dealing in methamphetamine, as a Level 5 felony. He raises two issues for our

review, which we restate as follows:

1. Whether the State presented sufficient evidence to support his conviction for conspiracy to commit robbery.1

2. Whether his sentence is inappropriate in light of the nature of the offense and his character.

[2] We affirm.

Facts and Procedural History [3] Gina Holliday resided in Fort Wayne with her girlfriend, Dovie Neer. At some

point in 2016, Holliday and Neer began spending time with Griffin, Mario

Hanserd, and Chaniqua Sparks. One day, Holliday and Neer came up with an

idea to “take some drugs down to LaPorte” in order to make some money. Tr.

Vol. III at 73. Griffin, Hanserd, and Sparks were with Holliday and Neer when

Holliday and Neer came up with the idea, and they decided that they wanted to

participate in the plan. On June 22, Holliday contacted Felicia Felix, who was

a confidential informant for the LaPorte County Metro Drug Task Force

(“DTF”). Holliday asked Felix if Felix wanted to purchase a large quantity of

1 Griffin does not appeal his conviction for dealing in methamphetamine, as a Level 5 felony.

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drugs, which included methamphetamine, synthetic marijuana, Vicodin, and

Percocet, for $2,100, and Felix agreed. At some point after Holliday had

contacted her, Felix contacted Detective Rudy Esparza with the DTF to inform

him that Holliday, Holliday’s girlfriend, and three other individuals whom

Felix did not know “were coming in with lots of drugs and that they had

weapons.” Id. at 56. [4] When Griffin, Holliday, Neer, Hanserd, and Sparks left Fort Wayne to meet

Felix at the agreed-upon location for their exchange, they did not have the

synthetic marijuana, Vicodin, or Percocet that they had originally offered to sell

to Felix. Instead, they planned to sell Felix catnip that Hanserd and Griffin had

packaged to look like synthetic marijuana, and they also planned to sell her

antibiotics instead of the Vicodin and Percocet. They did have a small amount

of methamphetamine. [5] The five individuals left on June 22 and arrived in LaPorte to meet Felix in the

early morning hours of June 23. While they were en route, Holliday and Neer

communicated with Felix, but there were times when Felix did not answer her

phone. This made Griffin angry. When Felix did not answer her phone on one

occasion, Griffin said, “I don’t care what we got to do, we’re getting this

money.” Id. at 79. He further stated that he would “pistol smack [Felix] if I

have to.” Id. Holliday and Felix made a plan to meet in the Wal-Mart parking

lot later that afternoon to complete the transaction.

Court of Appeals of Indiana | Memorandum Decision 46A05-1703-CR-647 | January 30, 2018 Page 3 of 11 [6] Detective Esparza, along with two other detectives, met with Felix prior to the

deal and told her that the situation was too dangerous for her. As such, the

DTF officers chose Detective Esparza to participate in the transaction as an

undercover officer. Felix informed Holliday that she was trying to steer clear of

drugs, so she was no longer going to purchase the drugs. Instead, Felix told

Holliday that a male dealer was going to buy the drugs. The five dealers

“started getting in an uproar kind of. Like, they were scared, because they were

expecting a white girl[.]” Id. at 159. Even so, they proceeded with the

arrangement. [7] At approximately 2:00 p.m., the group arrived at the Wal-Mart parking lot.

Griffin moved back to the hatch area of the vehicle and Hanserd ducked down

to hide in the back seat. Holliday and Sparks then exited the vehicle and met

Detective Esparza, whom they believed to be the buyer Felix had sent.

Detective Esparza told Holliday and Sparks that he only wanted to buy a

sample of the methamphetamine instead of the entirety of the contraband that

Felix had originally agreed to purchase. [8] Holliday and Sparks returned to the vehicle to get the requested amount. When

Griffin learned that Detective Esparza only wanted to buy eighty dollars’ worth

of methamphetamine, he got angry and loud. He said that they were “going to

get this money. I don’t care what we got to do.” Id. at 87. Griffin wanted to

“driv[e] up on the deal” and use the gun to scare the putative buyer. Id. But

Neer, who was in the driver’s seat, did not move the car, and Holliday and

Sparks completed the transaction. When Holliday and Sparks returned to the

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vehicle, several police officers who had watched the exchange surrounded the

vehicle and arrested Griffin and the other four individuals. The officers

discovered that Griffin had brought a BB gun with him and that Hanserd had

brought a 9mm handgun. [9] The State charged Griffin with dealing in methamphetamine, as a Level 5

felony (Count I); attempt to commit robbery, as a Level 3 felony (Count II); and

conspiracy to commit robbery, as a Level 3 felony (Count III). The trial court

held a jury trial on January 9-10, 2017. During the trial, the State presented the

testimony of Neer and Holliday. Neer testified that, when Griffin and Hanserd

learned that Detective Esparza was only going to buy eighty dollars’ worth of

methamphetamine, they talked “about driving up on the deal, talking about

doing what they needed to do, jumping out, using whatever to get the money

and to just hurry up and drive off.” Id. Holliday testified that Griffin and

Hanserd had hidden themselves in the vehicle because “they were going to try

to jump out and scare this guy. They were gonna do what they could. Because

like I said, they were determined that they weren’t leaving empty-handed no

matter what.” Id. at 161. At the end of the trial, the jury found Griffin guilty of

Count I and Count III but not guilty of Count II. The trial court entered

judgment of conviction accordingly. [10] The trial court held a sentencing hearing on February 24. During the

sentencing hearing, the trial court identified Griffin’s criminal history as an

aggravating factor. It did not find any mitigating factors. The court sentenced

Griffin to concurrent sentences of twelve years in the Department of Correction

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for the conspiracy to commit robbery conviction and four and one-half years for

the dealing in methamphetamine conviction. This appeal ensued.

Discussion and Decision Issue One: Sufficiency of the Evidence

[11] Griffin first contends that the State failed to present sufficient evidence to

support his conviction for conspiracy to commit robbery. Our standard of

review on a claim of insufficient evidence is well settled:

For a sufficiency of the evidence claim, we look only at the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of witnesses or reweigh the evidence. Id. We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id.

Love v. State, 73 N.E.3d 693, 696 (Ind. 2017). [12] A person commits robbery, as a Level 3 felony, when that person, while armed

with a deadly weapon, knowingly or intentionally takes property from another

person by using or threatening the use of force on any person or by putting any

person in fear. Ind. Code § 35-42-5-1(a). And a “person conspires to commit a

felony when, with intent to commit the felony, the person agrees with another

person to commit the felony.” I.C. § 35-41-5-2(a). To prove conspiracy, the

State “must allege and prove that either the person or the person with whom he

or she agreed performed an overt act in furtherance of the agreement.” I.C. §

35-41-5-2(b). Griffin maintains that “[t]here is no evidence pointing to the Court of Appeals of Indiana | Memorandum Decision 46A05-1703-CR-647 | January 30, 2018 Page 6 of 11

existence of an independent agreement with Griffin, [Hanserd], and

[Sparks] . . . to commit a robbery.”2 Appellant’s Br. at 16. [13] The State is not required to prove that an express, formal agreement existed.

Guffey v. State, 42 N.E.3d 152, 164 (Ind. Ct. App. 2015), trans. denied. Instead,

“[i]t is sufficient if the minds of the parties meet understandingly to bring about

an intelligent and deliberate agreement to commit the offense . . . . This may be

inferred from the acts committed and the circumstances surrounding the

defendant’s involvement.” Conn v. State, 948 N.E.2d 849, 853 (Ind. Ct. App.

2011) (quoting Minniefield v. State, 512 N.E.2d 1103, 1105 (Ind. 1987))

(omission original to Conn). Therefore, proof of the conspiracy may rest

entirely on circumstantial evidence. Id. [14] Here, the evidence most favorable to the judgment includes Neer’s testimony

that Griffin had stated that he would use force to obtain the money and that

Griffin had talked about “driving up on the deal” and “doing what they needed

to do” and “using whatever to get the money[.]” Tr. Vol. III at 87. It also

includes the State’s evidence that both Griffin and Hanserd brought weapons

with them and that the two men hid in the vehicle during the transaction

because they “were going to try to jump out and scare this guy. They were

2 Griffin only contends that the State failed to present sufficient evidence that an agreement existed. He does not contend that the State failed to present sufficient evidence that he, or another person, performed an overt act in furtherance of the agreement.

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gonna do what they could. Because like I said, they were determined that they

weren’t leaving empty-handed no matter what.” Id. at 161. [15] We hold that the State presented sufficient evidence from which a reasonable

jury could infer that Griffin and Hanserd had an agreement to rob the

undercover officer, and that the robbery would have happened but for the fact

that Neer refused Griffin’s request to move the car. See Conn, 984 N.E.2d at

853. Griffin’s assertion that there was no separate agreement to commit

robbery amounts to a request that we reweigh the evidence, which we cannot

do. See Love, 73 N.E.3d at 696. Accordingly, we affirm Griffin’s conviction for

conspiracy to commit robbery, as a Level 3 felony.

Issue Two: Inappropriateness of Sentence [16] Griffin also contends that his sentence is inappropriate in light of the nature of

the offenses and his character. Indiana Appellate Rule 7(B) provides that “[t]he

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.” This court

has recently held that “[t]he advisory sentence is the starting point the

legislature has selected as an appropriate sentence for the crime committed.”

Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017). And the Indiana

Supreme Court has recently explained that:

The principal role of appellate review should be to attempt to leaven the outliers . . . but not achieve a perceived “correct” result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

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2008). Defendant has the burden to persuade us that the sentence imposed by the trial court is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007), decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).

Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original). [17] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

sentence to the circumstances presented, and the trial court’s judgment “should

receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we

regard a sentence as inappropriate at the end of the day turns on “our sense of

the culpability of the defendant, the severity of the crime, the damage done to

others, and myriad other facts that come to light in a given case.” Id. at 1224.

The question is not whether another sentence is more appropriate, but rather

whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless

overcome by 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).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). [18] Here, the trial court identified Griffin’s criminal history as an aggravating

factor, and it did not find any mitigating factors. The sentencing range for a

Level 3 felony is three years to sixteen years, with an advisory sentence of nine

years. I.C. § 35-50-2-5(b). And the sentencing range for a Level 5 felony is one

year to six years, with an advisory sentence of three years. I.C. § 35-50-2-6(b).

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The trial court sentenced Griffin to a sentence of twelve years for his conviction

for a Level 3 felony and a sentence of four and one-half years for his conviction

for a Level 5 felony, which the court ordered to be served concurrently. [19] Griffin asserts that his sentence is inappropriate in light of the nature of the

offense because his “participation in the crimes was limited to his agreement to

participate in the preparation and packaging of catnip to pass off as synthetic

marijuana.” Appellant’s Br. at 18. But the State points out that Griffin

“urg[ed] the others to use whatever force was necessary to obtain the money”

from the undercover officer. Appellee’s Br. at 22. Further, Griffin brought a

weapon with him, hid in the vehicle during the transaction with the intent to

surprise the undercover officer, and demonstrated a clear willingness to use

force to obtain the full $2,100. We cannot say that Griffin’s sentence is

inappropriate in light of the nature of the offenses given his express willingness

to use force to obtain the money. [20] Griffin further asserts that his sentence is inappropriate in light of his character.

He contends that he is blind, has a severe limp, and suffers from post-traumatic

stress disorder. He further contends that he “led a law-abiding life for a

significant period of time [thirteen years] prior to these offenses[.]” Appellant’s

Br. at 19. But, as the State points out, Griffin’s criminal history is significant.

Prior to the present offense, Griffin had been convicted of crimes in two

different states. Those prior convictions include a conviction in Illinois in 1998

for felony possession of a firearm, a conviction in Missouri in 2004 for felony

possession of a controlled substance, a conviction in Missouri in 2004 for

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obstructing an officer, and a conviction in Missouri in 2008 for resisting an

officer. And his current offense, along with two of his prior felony convictions,

involve drugs and weapons. In sum, Griffin’s criminal history reflects his poor

character. See Stephenson, 29 N.E.3d at 122. We hold that Griffin’s sentence is

not inappropriate. Accordingly, we affirm his sentence. [21] Affirmed.

Mathias, J., and Barnes, J., concur.

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