FILED Aug 30 2024, 9:10 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
IN THE
Court of Appeals of Indiana Andy D. Boner, Appellant-Defendant
v.
State of Indiana, Appellee-Plaintiff
August 30, 2024 Court of Appeals Case No. 24A-CR-91 Appeal from the Johnson Circuit Court The Honorable Andrew S. Roesener, Judge Trial Court Cause No. 41C01-2207-F3-75
Opinion by Judge Tavitas Judges Crone and Bradford concur.
Court of Appeals of Indiana | Opinion 24A-CR-91 | August 30, 2024 Page 1 of 26 Tavitas, Judge.
Case Summary [1] Andy Boner appeals his two convictions for dealing in methamphetamine, one
as a Level 3 felony and the other as a Level 4 felony, and his concurrent
sentences totaling six years in the Department of Correction (“DOC”). Boner’s
convictions stem from two controlled buys executed by law enforcement.
Boner argues that: (1) the trial court abused its discretion by admitting evidence
regarding the methamphetamine recovered from the first controlled buy; (2)
insufficient evidence supports his convictions; (3) his two convictions constitute
double jeopardy; and (4) his sentence is inappropriate.
[2] We reject Boner’s arguments that the trial court abused its discretion by
admitting the challenged evidence and that insufficient evidence supports the
convictions. We do, however, find that Boner’s convictions constitute double
jeopardy, and we remand with instructions that the trial court vacate the Level
4 felony conviction. Lastly, we find that Boner’s sentence is not inappropriate.
Accordingly, we affirm in part, vacate in part, and remand.
Issues [3] Boner raises four issues, which we restate as:
I. Whether the trial court erred by admitting evidence regarding the methamphetamine recovered from the first controlled buy.
II. Whether sufficient evidence supports Boner’s convictions. Court of Appeals of Indiana | Opinion 24A-CR-91 | August 30, 2024 Page 2 of 26 III. Whether Boner’s convictions constitute double jeopardy.
IV. Whether Boner’s sentence is inappropriate.
Facts [4] On April 4, 2022, the Johnson County Sheriff’s Department, with the assistance
of a confidential informant (“C.I.”), was planning a controlled buy 1 of
methamphetamine from a man named Rob Stone. Prior to departing to the buy
location, law enforcement searched the C.I. for illegal drugs and found none.
Detective Jason Weinhorst, equipped with a hidden camera, then drove himself
and the C.I. to a house in Greenwood. Detective Weinhorst parked his truck in
the driveway, and he and the C.I. entered an open garage where Stone and a
woman were waiting.
[5] Boner then entered the garage from inside the residence and handed a baggie
with a large amount of methamphetamine to the C.I. The C.I. and Detective
Weinhorst explained that they had intended to purchase only $30 worth of
methamphetamine and that the baggie contained more methamphetamine than
they had cash to purchase; however, Detective Weinhorst offered to “go get
1 “A controlled buy consists of searching the person who is to act as the buyer, removing all personal effects, giving him money with which to make the purchase, and then sending him into the residence in question. Upon his return he is again searched for contraband.” Watson v. State, 839 N.E.2d 1291, 1293 (Ind. Ct. App. 2005).
Court of Appeals of Indiana | Opinion 24A-CR-91 | August 30, 2024 Page 3 of 26 more cash” and “be right back” to purchase the rest of the methamphetamine,
to which the others agreed. State’s Ex. 1 at 4:15.
[6] Detective Weinhorst then left the garage to retrieve a scale from his truck, while
the C.I. remained in the garage. This took less than thirty seconds. When
Detective Weinhorst returned to the garage, the parties weighed out
approximately one gram of methamphetamine to purchase with the $30, and
the remaining methamphetamine was left in the baggie on the table. Boner
watched the C.I. as the latter weighed the methamphetamine. The C.I. paid the
$30 to Stone, and the purchased methamphetamine was placed in an amber
medicine bottle.
[7] Detective Weinhorst and the C.I. returned to the briefing location, where law
enforcement again searched the C.I. and found no illegal drugs on his person.
Detective Weinhorst left the medicine bottle with law enforcement and
obtained cash to purchase the remaining methamphetamine.
[8] Detective Weinhorst and the C.I., again equipped with a hidden camera, then
drove back to the Greenwood house. Boner and Stone were still present in the
garage, and Boner discussed selling the remaining methamphetamine for $200,
to which Detective Weinhorst agreed. The C.I. weighed the remaining
methamphetamine, which was in “the same place and location that it had been
left at the end of the first deal.” Tr. Vol. II p. 89. Detective Weinhorst paid the
$200 to Stone and departed with the C.I. Detective Weinhorst placed the
methamphetamine from this second buy in an empty pack of cigarettes.
Court of Appeals of Indiana | Opinion 24A-CR-91 | August 30, 2024 Page 4 of 26 [9] Detective Weinhorst and the C.I. then returned to the briefing location, where
law enforcement searched the C.I. for a third time and found no illegal drugs.
Detective Weinhorst retrieved the medicine bottle and packaged and sealed the
methamphetamine inside for testing; however, the medicine bottle was not
retained as evidence. Detective Weinhorst packaged and sealed the cigarette
pack containing the methamphetamine from the second buy for testing
separately from the methamphetamine from the first buy. Both samples were
marked and placed in the evidence locker.
[10] The State charged Boner with Count I, dealing in methamphetamine in an
amount of at least five but less than ten grams, a Level 3 felony, based on the
second controlled buy; and Count II, dealing in methamphetamine in an
amount of at least one but less than five grams, a Level 4 felony, based on the
first controlled buy.
[11] A bench trial commenced in November 2023. Detective Weinhorst testified
regarding the two controlled buys, which he described as separate deals. He
explained that, during the first controlled buy, Boner brought more
methamphetamine than they had previously “agreed upon,” so Detective
Weinhorst needed to obtain more cash to purchase the rest of the
methamphetamine. Tr. Vol. II p. 58. The videos from the two controlled buys
were admitted as State’s Exhibits 1 and 2.
[12] The Johnson County Sheriff’s Department evidence technician testified that he
collected two methamphetamine samples from the evidence locker, logged
Court of Appeals of Indiana | Opinion 24A-CR-91 | August 30, 2024 Page 5 of 26 them in the computer system, and sent them for testing. The State moved to
admit State’s Exhibit 4, the methamphetamine from the first controlled buy,
and State’s Exhibit 5, the methamphetamine from the second controlled buy.
Boner, however, objected to the admission of Exhibit 4 on the grounds that: (1)
Detective Weinhorst was not watching the C.I. while retrieving the scale from
the truck; and (2) there was a gap in the chain of custody because the
methamphetamine from the first buy was removed from the medicine bottle
prior to being packaged for testing, and the medicine bottle was not retained as
evidence. The trial court overruled the objection and admitted the evidence.
[13] An Indiana State Police Laboratory forensic scientist then testified regarding
the laboratory testing of Exhibits 4 and 5. Boner objected to this testimony on
the grounds that Boner could have provided “an inert, non-controlled
substance” during the first controlled buy, which could have been contaminated
by illegal drugs possibly present in the medicine bottle. The trial court
overruled this objection. The forensic scientist then testified that Exhibit 4
tested as 1.12 grams of methamphetamine and Exhibit 5 tested as 6.39 grams of
methamphetamine; her report indicating the testing results was admitted as
State’s Exhibit 6 without objection from Boner. Boner stipulated that the
evidence was properly handled after it arrived at the lab.
[14] The State then recalled Detective Weinhorst as a witness to testify regarding the
medicine bottle in which the methamphetamine from the first controlled buy
was placed. Detective Weinhorst testified that law enforcement commonly
places illegal drugs purchased in controlled buys in such bottles and that,
Court of Appeals of Indiana | Opinion 24A-CR-91 | August 30, 2024 Page 6 of 26 although he did not know if the bottle was new or cleaned prior to using the
bottle, he checked to make sure it was empty before bringing it with him to the
first buy. He further testified that the bottle was in the same condition when he
retrieved it after the second buy as it was when he left it after the first buy. The
trial court found Boner guilty as charged.
[15] The trial court held a bifurcated sentencing hearing on December 11 and 14,
2023. Boner testified that he abused substances after his wife died, that he has
two minor children, and that he has several health problems. He further
testified that he was accepted into the Chain Breakers substance abuse
treatment program but had to leave due to “health issues and family issues that
[he] would rather not discuss with the court.” Tr. Vol. II p. 143. The Chain
Breakers program, however, was willing to allow Boner to return in the future.
Boner’s father testified that Boner could stay with him while seeking substance
abuse treatment, and a family friend spoke positively about Boner’s character.
Boner’s counsel argued that entering judgments of conviction on both offenses
would constitute double jeopardy because the two controlled buys were “all one
continuous transaction . . . .” Id. at 159.
[16] The trial court found one aggravator—Boner’s criminal history, which included
Class A misdemeanor convictions for conversion in 2004 and criminal trespass
in 2016. Boner’s history also includes a Class C infraction for driving without a
license in possession. The trial court found three mitigators: Boner’s pretrial
behavior, undue hardship to his children, and his health problems. The trial
court rejected Boner’s double jeopardy argument, finding that the issue was
Court of Appeals of Indiana | Opinion 24A-CR-91 | August 30, 2024 Page 7 of 26 controlled by Powell v. State, 151 N.E.3d 256 (Ind. 2020). The trial court, thus,
entered judgments of conviction on both offenses and sentenced Boner to
concurrent sentences of six years on Count I and three years on Count II, all
executed in the DOC. Boner now appeals.
Discussion and Decision I. Admission of Evidence—Abuse of Discretion
[17] We first address Boner’s argument that the trial court erred by admitting, over
his chain of custody objection: (1) Exhibit 4, the methamphetamine recovered
from the first controlled buy; and (2) the forensic scientist’s testimony that
Exhibit 4 consisted of 1.12 grams of methamphetamine. We are not persuaded
by these arguments.
[18] We review challenges to the admission of evidence for an abuse of the trial
court’s discretion. Combs v. State, 168 N.E.3d 985, 990 (Ind. 2021). We will
reverse only where the decision is clearly against the logic and effect of the facts
and circumstances and the error affects a party’s substantial rights. Clark v.
State, 994 N.E.2d 252, 259-60 (Ind. 2013). The erroneous admission of
evidence, however, may be harmless if that evidence is cumulative of other
evidence admitted. Pelissier v. State, 122 N.E.3d 983, 988 (Ind. Ct. App. 2019),
trans. denied.
[19] Boner argues that the methamphetamine recovered from the first controlled buy
and the forensic scientist’s testimony regarding the same should have been
Court of Appeals of Indiana | Opinion 24A-CR-91 | August 30, 2024 Page 8 of 26 excluded because the State failed to properly establish the chain of custody.
Discussing chain of custody, this Court has explained:
An exhibit is admissible “if the evidence regarding its chain of custody strongly suggests the exact whereabouts of the evidence at all times.” Culver v. State, 727 N.E.2d 1062, 1067 (Ind. 2000). The State must give “reasonable assurances that the property passed through various hands in an undisturbed condition.” Id. The State need not establish a perfect chain of custody, and any gaps in the chain go to the weight of the evidence and not to its admissibility. Id. There is a presumption of regularity in the handling of exhibits by public officers. Id. Merely raising the possibility of tampering is insufficient to make a successful challenge to the chain of custody. Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002).
Jones v. State, 218 N.E.3d 3, 9 (Ind. Ct. App. 2023), trans. denied. For fungible
items, “whose appearance is indistinguishable to the naked eye,” the State bears
a “higher burden” to establish the chain of custody. Id. Drugs are often
considered fungible items. See, e.g., Mateo v. State, 981 N.E.2d 59, 66 (Ind. Ct.
App. 2012), trans. denied.
[20] Here, Detective Weinhorst testified that he placed the substance recovered from
the first buy in a medicine bottle, and he had previously checked to ensure that
the bottle was empty. Detective Weinhorst left the bottle at the briefing
location and found it in the same condition when he returned from the second
buy later that day. Detective Weinhorst then transferred the substance from the
bottle to a package for testing. Testing revealed the substance to be 1.12 grams
Court of Appeals of Indiana | Opinion 24A-CR-91 | August 30, 2024 Page 9 of 26 of methamphetamine. The bottle, however, was not tested or retained as
evidence.
[21] Boner argues that the bottle could have contained illegal drugs, which could
have contaminated the substance obtained from the first controlled buy. He
relies on Zimmerman v. State, 469 N.E.2d 11, 18 (Ind. Ct. App. 1984). In that
case, the defendant challenged the admission of evidence regarding a blood test.
The defendant argued that the State failed to prove that the container into
which the blood sample was placed was “sterile” and that the
container “could have been contaminated at some time, which would have
rendered the results of the blood test unreliable and, therefore, inadmissible.”
Id. (emphasis in original). This Court rejected that argument because the
defendant “presented absolutely no evidence that the container actually was
contaminated.” Id. The Court also noted that a chemist for the State
laboratory testified that it was “his procedure to use containers prepared to be
sterile by the manufacturer” and that the evidence overall “‘strongly suggest[ed]
the whereabouts of the evidence at all times.’” Id. at 18-19 (quoting Jones v.
State, 425 N.E.2d 128, 132 (Ind. 1981)). In the end, the defendant failed to raise
more than a “mere possibility that evidence might have been tampered with . . .
.” Id. at 18.
[22] Here, as in Zimmerman, Boner has not raised more than a mere possibility that
the medicine bottle was contaminated. Although the bottle was not offered into
evidence, Boner presented no evidence that the bottle was contaminated, and
the evidence tends to show that it was not. Moreover, any faults in the chain of
Court of Appeals of Indiana | Opinion 24A-CR-91 | August 30, 2024 Page 10 of 26 custody here would go only to the weight of the evidence, not its admissibility.
Jones, 218 N.E.3d at 9. Accordingly, the trial court did not abuse its discretion
by admitting the challenged evidence. 2
II. Sufficiency of the Evidence
[23] We next address Boner’s argument that insufficient evidence supports his
convictions. We conclude that the evidence is sufficient. Sufficiency of
evidence claims “warrant a deferential standard, in which we neither reweigh
the evidence nor judge witness credibility.” Powell v. State, 151 N.E.3d 256, 262
(Ind. 2020) (citing Perry v. State, 638 N.E.2d 1236, 1242 (Ind. 1994)). We
consider only the evidence supporting the judgment and any reasonable
inferences drawn from that evidence. Powell, 151 N.E.3d at 262 (citing Brantley
v. State, 91 N.E.3d 566, 570 (Ind. 2018)). We affirm the conviction “‘unless no
reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt. It is therefore not necessary that the evidence overcome
every reasonable hypothesis of innocence. The evidence is sufficient if an
inference may reasonably be drawn from it to support the verdict.’” Sutton v.
State, 167 N.E.3d 800, 801 (Ind. Ct. App. 2021) (quoting Drane v. State, 867
N.E.2d 144, 146-47 (Ind. 2007)).
2 Moreover, Boner did not object to the admission of the forensic chemist’s report, which indicated that the substance recovered from the first buy tested as 1.12 grams of methamphetamine. The report was essentially the same as the forensic chemist’s testimony, so any error in the admission of the challenged evidence would be harmless. Pelissier, 122 N.E.3d at 988.
Court of Appeals of Indiana | Opinion 24A-CR-91 | August 30, 2024 Page 11 of 26 [24] Boner was convicted of two counts of dealing in methamphetamine, one as a
Level 3 felony and one as a Level 4 felony, under Indiana Code Section 35-48-
4-1.1. This statute provides, in relevant part:
(a) A person who:
(1) knowingly or intentionally:
(A) delivers; or
(B) finances the delivery of;
methamphetamine, pure or adulterated; or
(2) possesses, with intent to:
(A) deliver; or
(B) finance the delivery of;
methamphetamine, pure or adulterated;
commits dealing in methamphetamine, a Level 5 felony, except as provided in subsections (b) through (e).
*****
(c) The offense is a Level 4 felony if:
(1) the amount of the drug involved is at least one (1) gram but less than five (5) grams[.] Court of Appeals of Indiana | Opinion 24A-CR-91 | August 30, 2024 Page 12 of 26 *****
(d) The offense is a Level 3 felony if:
(1) the amount of the drug involved is at least five (5) grams but less than ten (10) grams . . . .
“Delivery” is defined as: “(1) an actual or constructive transfer from one (1)
person to another of a controlled substance, whether or not there is an agency
relationship; or (2) the organizing or supervising of an activity described in
subdivision (1).” Ind. Code § 35-48-1-11.
[25] Here, Detective Weinhorst and the C.I. originally arranged to purchase $30
worth of methamphetamine from Stone. Boner, however, participated in the
arrangement by providing the methamphetamine and watching as the
methamphetamine was weighed. And when Detective Weinhorst and the C.I.
returned for the second buy, Boner was still present in the garage and discussed
the pricing for the remainder of the methamphetamine.
[26] Boner argues that the evidence is insufficient to support his convictions because
the controlled buys “constituted just one transaction with 2 separate
installments.” Appellant’s Br. p. 15. Indiana Code 35-48-4-1.1(a)(1)(A),
however, provides that a person, acting with the requisite mens rea, commits
dealing in methamphetamine if the person “delivers” methamphetamine.
There were two deliveries of methamphetamine here.
Court of Appeals of Indiana | Opinion 24A-CR-91 | August 30, 2024 Page 13 of 26 [27] Boner also argues: (1) the money was handed to Stone in both controlled buys;
(2) Detective Weinhorst was not supervising the C.I. while retrieving the scale;
and (3) the medicine bottle could have been contaminated before the first
controlled buy. These arguments merely request that we reweigh the evidence,
which we cannot do. Moreover, Detective Weinhorst left the C.I. for only a
matter of seconds; there was no evidence that the C.I. tampered with the
evidence; Detective Weinhorst testified that the medicine bottle was empty
before he used it; and the substance obtained from the first buy originated from
the same bag as the substance from the second buy. Boner does not challenge
that the second substance was methamphetamine.
[28] Lastly, Boner relies on Watson v. State, 839 N.E.2d 1291 (Ind. Ct. App. 2005), to
suggest that the C.I. could have tampered with the evidence here. In Watson,
law enforcement attempted to execute a controlled buy; a C.I. entered the
defendant’s vehicle to purchase cocaine and exited the vehicle with cocaine in
her pocket. Id. at 1292. The C.I., however, had not been searched prior to the
buy. Id. at 1293. Although the defendant was found guilty of dealing in
cocaine at trial, on appeal, a panel of this Court found the evidence insufficient
because the C.I. was neither searched prior to the buy nor testified at trial. Id.
at 1294. Unlike Watson, however, the C.I. here was searched before and after
both controlled buys, and no illegal drugs were found on his person. The
evidence is sufficient to support Boner’s two convictions.
Court of Appeals of Indiana | Opinion 24A-CR-91 | August 30, 2024 Page 14 of 26 III. Double Jeopardy
[29] Boner next argues that his two convictions constitute double jeopardy. We
review double jeopardy claims de novo. See Wadle v. State, 151 N.E.3d at
237; Powell v. State, 151 N.E.3d 256, 262 (Ind. 2020). We conclude that Boner’s
convictions here constitute double jeopardy, and we remand with instructions
that the trial court vacate Boner’s Level 4 felony conviction.
A. Wadle, not Powell, governs the double jeopardy analysis in this case.
[30] As an initial matter, our Supreme Court has delineated two varieties of
substantive double jeopardy 3 claims: “(1) when a single criminal act or
transaction violates a single statute but harms multiple victims, and (2) when a
single criminal act or transaction violates multiple statutes with common
elements and harms one or more victims.” 4 Wadle, 151 N.E.3d at 247. The test
set forth in Powell governs the former scenario whereas the test set forth in
Wadle governs the latter.
[31] Here, at the second sentencing hearing, the trial court found Powell to be the
governing test for Boner’s double jeopardy claim because Boner’s convictions
fell under a “single statute.” Tr. Vol. II p. 165. Although Boner’s dealing
3 Substantive double jeopardy refers to the prohibition against “multiple convictions or punishments for the same offense in a single trial.” Wadle, 151 N.E.3d at 235. This type of double jeopardy is distinct from procedural double jeopardy, which refers to the prohibition against “subsequent prosecution for the same offense, whether after acquittal or conviction.” Id. 4 Our Supreme Court has also phrased this distinction as: “(1) when a single criminal act or transaction violates multiple statutes with common elements, or (2) when a single criminal act or transaction violates a single statute and results in multiple injuries.” Powell, 151 N.E.3d at 263.
Court of Appeals of Indiana | Opinion 24A-CR-91 | August 30, 2024 Page 15 of 26 offenses here do fall under the same statute, Indiana Code Section 35-48-4-1.1,
Count I, the Level 3 felony, draws from subsection (c)(1), which sets forth the
crime for dealing in methamphetamine in an amount greater than five but less
than ten grams, whereas Count II, the Level 4 felony, draws from subsection
(d)(1), which sets forth the crime for dealing in methamphetamine in an amount
greater than one but less than five grams. In other words, the two convictions
“fall under separate statutory provisions, each defining a separate crime.”
Koziski v. State, 172 N.E.3d 338, 342 (Ind. Ct. App. 2021), trans. denied.
[32] Under these circumstances, this Court has held that Wadle, not Powell, governs
our double jeopardy analysis. See Carranza v. State, 184 N.E.3d 712, 715 (Ind.
Ct. App. 2022) (holding that Wadle, not Powell, governed double jeopardy
analysis of convictions for child molesting as a Level 1 felony, and child
molesting as a Level 4 felony, both of which drew from separate subsections of
the child molesting statute, each of which criminalized different conduct); accord
Koziski, 172 N.E.3d at 342; Stone v. State, 226 N.E.3d 829, 833 (Ind. Ct. App.
2024), trans. denied.
B. Boner’s convictions constitute double jeopardy.
[33] Having concluded that Wadle is the applicable test, we conclude that Boner’s
convictions constitute double jeopardy. We analyze Wadle’s three-part test
below.
Court of Appeals of Indiana | Opinion 24A-CR-91 | August 30, 2024 Page 16 of 26 1. Step One—Whether multiple punishment is permitted
[34] Under Wadle step one, we ask whether “the language of either statute clearly
permits multiple punishment, whether expressly or by unmistakable
implication.” Wadle, 151 N.E.3d at 248. If that is the case, “the court’s inquiry
comes to an end and there is no violation of substantive double jeopardy.” Id.
Here, we are dealing with only one statute, Indiana Code Section 35-48-4-1.1,
and two subsections thereunder. Nothing in this statute clearly permits
multiple punishment. We, therefore, proceed to Wadle step two.
2. Step Two—Whether the offenses are “included”
[35] Under Wadle step two, we determine whether the two offenses for which the
defendant was convicted constitute “included” offenses. See id. Included
offenses come in two varieties. The first are “inherently” included offenses,
which refers to offenses that meet either of the three definitions for “included
offense” under Indiana Code Section 35-31.5-2-168. A.W. v. State, 229 N.E.3d
1060, 1067 (Ind. 2024). This statute provides:
“Included offense” means an offense that:
(1) is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged;
(2) consists of an attempt to commit the offense charged or an offense otherwise included therein; or
Court of Appeals of Indiana | Opinion 24A-CR-91 | August 30, 2024 Page 17 of 26 (3) differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission.
[36] The other variety of included offenses are offenses that are included “as
charged,” also known as “factually included” offenses. See A.W., 229 N.E.3d at
1067 (noting that “[t]hese two concepts—as charged and factually included—
should be treated as synonymous under Wadle”). Offenses are included as
charged when “the charging instrument alleges that the means used to commit
the crime charged include all of the elements of the alleged lesser included
offense.” Id.
[37] Boner argues that his convictions are factually included “based on evidence
produced at trial.” Appellant’s Br. p. 19. Our Supreme Court has recently
clarified, however, that “when assessing whether an offense is factually
included, a court may examine only the facts as presented on the face of the
charging instrument”; we may not “probe other facts, such as evidence adduced
from trial.” A.W., 229 N.E.3d at 1067. Because Boner relies on facts adduced
at trial rather than those alleged in the charging information, we cannot
conclude that the offenses here are factually included.
[38] Boner makes no argument that his offenses constitute inherently included
offenses, however, we address this issue sua sponte. See, e.g., Banks v. State, 231
N.E.3d 853, 867 (Ind. Ct. App. 2024) (noting that appellate courts “can raise
double-jeopardy issues sua sponte”) (citing Koziski, 172 N.E.3d at 341), trans.
Court of Appeals of Indiana | Opinion 24A-CR-91 | August 30, 2024 Page 18 of 26 denied. At first blush, because one of Boner’s convictions consists of dealing in
a lesser amount of methamphetamine than the other conviction, the former
offense appears to be a lesser included offense of the other. Under the Wadle
test, however, offenses are inherently included only if they meet one of the three
definitions of “included offense” under Indiana Code Section 35-31.5-2-168.
[39] We conclude that the offenses are inherently included under Indiana Code
Section 35-31.5-2-168(3). The two offenses share the same elements; the only
difference is that the Level 3 felony offense requires dealing in a greater amount
of methamphetamine than the Level 4 felony offense. The offenses, thus, differ
only in that the Level 4 felony involves a “less serious harm or risk of harm to
the same person, property, or public interest.” Ind. Code § 35-31.5-2-168(3); cf.
A.W., 229 N.E.3d at 1072 (holding that, where juvenile was adjudicated
delinquent for acts that would be dangerous possession of a firearm, a Class A
misdemeanor if committed by an adult, and possession of a machine gun, a
Level 5 felony if committed by an adult, the two adjudications were “included”
for the purposes of Wadle because “being a juvenile in possession [of a firearm]
is ‘a less serious harm . . . to the . . . public interest’ than possession of a
machine gun” (quoting Ind. Code § 35-31.5-2-168(3)); Hendricks v. State, 162
N.E.3d 1123, 1139 (Ind. Ct. App. 2021) (holding that, where defendant was
convicted of conspiracy to commit robbery and felony murder based on the
robbery, the conspiracy offense “could be” an included offense of the felony
murder offense because, under the facts of the case, the offenses “differ[ed] only
in the respect that a less serious harm to” the victim was required to establish
Court of Appeals of Indiana | Opinion 24A-CR-91 | August 30, 2024 Page 19 of 26 the conspiracy offense), trans. denied. Because we conclude that the offenses
here are inherently included, we proceed to Wadle’s third and final step.
3. Step Three—Whether the offenses constitute a single transaction
[40] Under Wadle step three, we examine the facts underlying the offenses, “as
presented in the charging instrument and as adduced at trial.” Wadle, 151
N.E.3d at 249. “Based on this information, a court must ask whether the
defendant’s actions were so compressed in terms of time, place, singleness of
purpose, and continuity of action as to constitute a single transaction.” Id. If
the defendant’s acts constitute a single transaction, the multiple convictions
constitute double jeopardy.
[41] As we explained in the sufficiency of evidence section, the controlled buys here
involved two deliveries of methamphetamine. Under the language of the
statute, thus, sufficient evidence supports the two convictions. As a matter of
double jeopardy, however, we conclude that the totality of the circumstances
indicate that the events here formed part of the same, singular transaction under
the Wadle analysis.
[42] First, we agree with Boner that “[t]here was a singleness of purpose” to
purchase all of the methamphetamine, and “there would have been a single
payment if Weinhorst and the [C.I.] had the money” during the first buy.
Appellant’s Br. p. 20. Although Detective Weinhorst originally arranged for
the purchase of only $30 worth of methamphetamine, the parties agreed that
Detective Weinhorst would return with more cash to purchase the remainder of
Court of Appeals of Indiana | Opinion 24A-CR-91 | August 30, 2024 Page 20 of 26 the methamphetamine. Second, both controlled buys occurred in the same
location—the garage of the Greenwood residence. Finally, although the
amount of time that passed between the two controlled buys is unclear, the
State concedes that the second controlled buy “occurred on the same day within
a short amount of time” as the first. Appellee’s Br. p. 29. 5
[43] Based on the circumstances here, we conclude that the two convictions both
derived from the same transaction, as defined by Wadle, and, therefore,
constitute double jeopardy. We, accordingly, remand with instructions that the
trial court vacate Boner’s conviction for the Level 4 felony conviction.
IV. Inappropriate Sentence [44] Lastly, Boner argues that his sentence of six years in the DOC is inappropriate.
Although we order that one of Boner’s convictions be vacated due to double
jeopardy principles, his sentences were ordered to be served concurrently, so the
length of his sentence remains six years. We conclude that Boner’s six-year
sentence is not inappropriate.
[45] The Indiana Constitution authorizes independent appellate review and revision
of sentences imposed by a trial court. Lane v. State, 232 N.E.3d 119, 122 (Ind.
2024) (citing Ind. Const. art. 7, §§ 4, 6). This authority, as implemented
5 We note that the timestamps on the video exhibits show that the first buy commenced at approximately “14:51” and the second buy commenced at approximately “15:16.” There was, however, no testimony at trial regarding these timestamps or the amount of time that passed between the two buys.
Court of Appeals of Indiana | Opinion 24A-CR-91 | August 30, 2024 Page 21 of 26 through Appellate Rule 7(B), enables this Court to “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.” Deference to the trial court’s sentence
should prevail unless “overcome by compelling evidence portraying in a
positive light the nature of the offense and the defendant’s character.”
Oberhansley v. State, 208 N.E.3d 1261, 1267 (Ind. 2023) (internal quotations
omitted). A defendant, however, need not show that both the nature of the
offense and his or her character warrant revision; rather, “a strong showing on
one prong” may “outweigh a weak showing” on the other prong. Lane, 232
N.E.3d at 127.
[46] Additionally, in determining whether a sentence is inappropriate, we are not
limited to the aggravating and mitigating circumstances found by the trial court.
Oberhansley, 208 N.E.3d at 1271. “Our role is primarily to leaven the outliers
and identify guiding principles for sentencers, rather than to achieve the
perceived correct result in each case.” Lane, 232 N.E.3d at 122 (internal
quotations omitted). “Ultimately, we rely on our collective judgment as to the
balance of all the relevant considerations involved, which include the
culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other factors that come to light in a given case.” Id.
(internal quotations omitted).
[47] When determining whether a sentence is inappropriate, the advisory sentence is
the starting point the legislature has selected as an appropriate sentence for the
Court of Appeals of Indiana | Opinion 24A-CR-91 | August 30, 2024 Page 22 of 26 crime committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). In the case at
bar, Boner was convicted of dealing in methamphetamine, a Level 3 felony,
and we have ordered that his other conviction be vacated. Pursuant to Indiana
Code Section 35-50-2-5(b), a person who commits a Level 3 felony “shall be
imprisoned for a fixed term of between three (3) and sixteen (16) years, with the
advisory sentence being nine (9) years.” Boner was sentenced to six years,
below the advisory sentence, in the DOC.
Nature of the Offense
[48] Our analysis of the “nature of the offense” requires us to look at the extent,
brutality, and heinousness of the offense. See Wilson v. State, 157 N.E.3d 1163,
1182 (Ind. 2020). Here, Boner ultimately participated in the sale of over $200
worth of methamphetamine. Boner merely restates his argument that the
evidence was insufficient to support his convictions, and we have vacated one
of his convictions on double jeopardy grounds. We discern nothing about the
nature of the offense that warrants revision of Boner’s sentence.
Character of the Offender
[49] Our analysis of the character of the offender involves a broad consideration of a
defendant’s qualities, including the defendant’s age, criminal history,
background, past rehabilitative efforts, and remorse. See Harris v. State, 165
N.E.3d 91, 100 (Ind. 2021); McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020).
The significance of a criminal history in assessing a defendant’s character and
an appropriate sentence vary based on the “gravity, nature and number of prior
Court of Appeals of Indiana | Opinion 24A-CR-91 | August 30, 2024 Page 23 of 26 offenses as they relate to the current offense.” McElfresh v. State, 51 N.E.3d 103,
112 (Ind. 2016). “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).
[50] Here, Boner has a criminal history involving two Class A misdemeanor
convictions. He was also previously charged with a Class C misdemeanor for
operating without a license in his possession, but he pleaded guilty to this
offense as a Class C infraction. Although not particularly extensive, this
criminal history still reflects poorly on Boner. Boner argues that he has health
problems, two minor children, a work history, and family support and that he
turned to substance abuse after losing family members. The trial court
sufficiently accounted for these circumstances by sentencing Boner below the
advisory level. We are not persuaded that Boner’s character warrants revision
of his sentence.
Placement in the DOC
[51] Lastly, Boner challenges the placement of his sentence in the DOC. He asks
that we revise his sentence to probation so that he can participate in the Chain
Breakers program or that he be allowed to execute his sentence on house arrest.
[52] Our courts have recognized that “[t]he place that a sentence is to be served is an
appropriate focus for application of our review and revise authority” under
Appellate Rule 7(B). Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007)
(quoting Hole v. State, 851 N.E.2d 302, 304 n.4 (Ind. 2006)). “Nonetheless, we
Court of Appeals of Indiana | Opinion 24A-CR-91 | August 30, 2024 Page 24 of 26 note that it will be quite difficult for a defendant to prevail on a claim that the
placement of his or her sentence is inappropriate. As a practical matter, trial
courts know the feasibility of alternative placements in particular counties or
communities.” Fonner v. State, 876 N.E.2d 340, 343 (Ind. Ct. App. 2007).
“Additionally, the question under Appellate Rule 7(B) is not whether another
sentence is more appropriate; rather, the question is whether the sentence
imposed is inappropriate. A defendant challenging the placement of a sentence
must convince us that the given placement is itself inappropriate.” Id. at 344.
[53] Here, Boner did not explain why he left the Chain Breaker’s program the first
time, so we are unable to discern whether he would be successful in this
program this time around. Additionally, as we have explained, Boner has a
criminal history, and his sentence is below the advisory level. We are not
persuaded that placement in the DOC is inappropriate under these
circumstances.
Conclusion [54] The trial court did not err by admitting evidence regarding the
methamphetamine obtained from the first controlled buy, and sufficient
evidence supports Boner’s convictions. Boner’s convictions, however,
constitute double jeopardy, so we remand with instructions that the trial court
vacate the Level 4 felony conviction. Lastly, Boner’s six-year sentence is not
inappropriate.
[55] Affirmed in part, vacated in part, and remanded.
Court of Appeals of Indiana | Opinion 24A-CR-91 | August 30, 2024 Page 25 of 26 Crone, J., and Bradford, J., concur.
ATTORNEY FOR APPELLANT Carlos I. Carrillo Carrillo Law LLC Greenwood, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Kathy Bradley Deputy Attorney General Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 24A-CR-91 | August 30, 2024 Page 26 of 26