Anthony G. Boyer v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 8, 2016
• Docket: 39A01-1507-CR-1039
• Status: Published

Opinion

FILED MEMORANDUM DECISION Jul 08 2016, 8:46 am

CLERK Pursuant to Ind. Appellate Rule 65(D), this Indiana Supreme Court Court of Appeals Memorandum Decision shall not be regarded as and Tax Court

precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Gregory F. Zoeller Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Anthony G. Boyer, July 8, 2016

Appellant-Defendant, Court of Appeals Case No. 39A01-1507-CR-1039 v. Appeal from the Jefferson Circuit Court. The Honorable Darrell M. Auxier, State of Indiana, Judge. Appellee-Plaintiff. Cause No. 39C01-1412-F5-1017

Barteau, Senior Judge

Court of Appeals of Indiana | Memorandum Decision 39A01-1507-CR-1039 | July 8, 2016 Page 1 of 13 Statement of the Case [1] Anthony G. Boyer appeals from his convictions after a jury trial of Level 5 1 felony dealing in methamphetamine, and Level 5 felony attempted dealing in 2 methamphetamine. We affirm.

Issues [2] Boyer presents the following restated issues for our review:

I. Whether there is sufficient evidence to support Boyer’s convictions of dealing in methamphetamine and attempted dealing in methamphetamine; and II. Whether the trial court abused its discretion by instructing the jury on the defense of abandonment at the State’s request and over Boyer’s objection.

Facts and Procedural History [3] In November of 2014, Justin Brooks and his girlfriend, Brittany Canfield, were

working as confidential informants for the Jefferson County Sheriff’s

Department in exchange for leniency regarding pending matters against each of

them. In particular, Brooks was facing a probation violation charge and

charges for driving while suspended and fleeing law enforcement. He faced

those charges while also serving probation for a 2004 conviction of dealing in

cocaine. Additionally, Brooks was in arrears with his child support obligation.

1 Ind. Code § 35-48-4-1.1 (2014). 2 Ind. Code § 35-48-4-1.1 (2014) (dealing); Ind. Code § 35-41-5-1 (2014) (attempt).

Court of Appeals of Indiana | Memorandum Decision 39A01-1507-CR-1039 | July 8, 2016 Page 2 of 13 Brooks had conducted approximately ten or twelve controlled buys using

money given to him for that purpose, while Brittany had conducted three or

four controlled buys.

[4] On November 12, 2014, via text and telephone, Brooks and Boyer discussed the

sale of methamphetamine. The two agreed that Boyer would sell a half gram of

methamphetamine to Brooks for sixty dollars. The two were to meet in front of

the Dollar General Store to complete the transaction. Brooks then notified

Jefferson County Sheriff’s Department Special Deputy Tim Armstrong and

Sheriff John Wallace about the arrangement. He met them and Detective

Tonya Colber at a designated location.

[5] Prior to the controlled buy, Deputy Armstrong strip-searched Brooks, fitted him

with a concealed wire, and gave him sixty dollars in buy money. Armstrong

took Brooks to the location, dropped him off at a spot across the parking lot,

and waited for approximately five to eight minutes for Boyer to arrive.

Armstrong’s vehicle was parked in the parking lot near a bank in order to avoid

detection, while Jefferson County Sheriff’s Department Captain Keith Hartman

and Detective Colber were monitoring the buy in a cover vehicle. Although

Brooks was wearing a wire, Armstrong did not have listening capability, and

the cover unit was not receiving intelligible audio.

[6] Boyer arrived in a black truck driven by a male Brooks did not know.

Armstrong watched the truck pull up and observed Brooks walk over to it.

Brooks, who could see Armstrong’s vehicle through the driver’s side window of

Court of Appeals of Indiana | Memorandum Decision 39A01-1507-CR-1039 | July 8, 2016 Page 3 of 13 the black truck, walked over to Boyer and dropped the money in Boyer’s lap.

He did so, instead of handing him the money, because there were so many

people nearby. Brooks grabbed the baggie out of Boyer’s hands and asked if the

drugs were potent. Boyer assured Brooks that they were. Boyer and the other

man were discussing a drug user named Kristy Brown, indicating that she had

caused them to be late and describing her as being “out of her mind.” Tr. pp.

37-38. The entire transaction was completed in approximately two minutes.

[7] After Boyer left in the truck, Brooks walked back into an alley and was picked

up by Armstrong approximately twenty feet from the back side of the Dollar

General building. Brooks got into the car and gave Armstrong a small, clear,

plastic baggie with a white, crystal-like substance in it. Armstrong drove back

to an undisclosed location, removed Brooks’ wire, strip searched him, and then

interviewed him. Brooks identified Boyer as the person who gave him the

crystal-like substance. That substance later tested positive as

methamphetamine.

[8] On December 1, 2014, Brooks contacted Boyer about buying a half-gram of

methamphetamine for sixty dollars. Boyer wanted Brooks to meet him in

Hanover. Brooks contacted Armstrong and Sheriff Wallace about the

transaction. Brooks was searched and fitted with a recording device prior to the

buy. Officers gave him three twenty-dollar bills, which had been previously

photocopied, for the purchase.

Court of Appeals of Indiana | Memorandum Decision 39A01-1507-CR-1039 | July 8, 2016 Page 4 of 13 [9] Based on text message exchanges, Brooks believed the purchase would occur at

a trailer court. However, Boyer changed the location for the buy to the Circle K

station. Brittany, who knew Boyer, accompanied Brooks on this controlled

buy, and was searched prior to the buy by jail matron Libby Hoffman.

Undercover police officer Kurtis Wallace drove the two to the Circle K in an

unmarked car. Armstrong, Sheriff Wallace, and Hoffman, followed in a cover

unit equipped with a listening device.

[10] Officer Wallace saw Boyer at the Circle K station when they arrived there and

parked the car near the gas pumps. Brooks and Brittany got out of the car and

walked over to Boyer. Although the officers could not see Brooks get out of the

vehicle from their location, they listened to the audio transmission from the

device Brooks was wearing. Armstrong recognized Brooks’ and Boyer’s voices

on the audio. The three went into the store, where they stayed for several

minutes before Brittany left the store and walked back to Officer Wallace’s car.

[11] Within a short time, Brooks and Boyer walked out the front door of the station

and proceeded around the side of the building to the back. Boyer told Brooks

that he had heard Brooks “might be police” and because of that Boyer was

going to be cautious. Tr. pp. 55, 57. Boyer told Brooks that he was going to

take the money for the methamphetamine, put the drugs in a cigarette pack,

and then call Brooks with the location of the cigarette pack. Officer Wallace

had lost sight of the two, but Brooks walked back to the car after giving the

money to Boyer. Officer Wallace did not see Boyer again at the Circle K

station.

Court of Appeals of Indiana | Memorandum Decision 39A01-1507-CR-1039 | July 8, 2016 Page 5 of 13 [12] Brooks received a text from Boyer indicating that they should just meet each

other at the laundromat. Officer Wallace repeated what Brooks told him about

going to the laundromat so the information that the investigation was ongoing

would be supplied to officers in the area.

[13] Meanwhile, Armstrong, by way of the listening device, had heard a voice say

“Sixty. Right?” Id. at 141. He then heard Boyer say, “I’m going to have to go

over here. I’ll meet you in five to ten minutes down by the laundromat.” Id. at

130. After they parked in front of the laundromat, Brooks waited

approximately five to eight minutes before Boyer arrived.

[14] Officer Wallace told Brooks to exit the vehicle when Boyer arrived, and that he

and Brittany would remain in the car. He also instructed Brooks to ensure that

the transaction was visible, but to return to the car if anything did not seem

right about the transaction. Boyer called Brooks to ask him where he was.

Brooks indicated that he was at the laundromat, got out of the vehicle, and met

Boyer at the corner. Boyer told Brooks “we need to take a ride.” Id. at 62.

Brooks and Boyer walked toward Officer Wallace’s car. Brooks entered the

front passenger side of the vehicle, while Boyer opened the back driver’s side

door and began to sit down. Wallace, however, was concerned that Boyer

recognized him as a police officer and feared for the safety of the confidential

informants. As Boyer began to sit in the back seat, Wallace opened the door,

identified himself as a police officer, pointed his gun at Boyer, and ordered him

to get out of the car and onto the ground. Additional officers arrived while

Boyer was on the ground.

Court of Appeals of Indiana | Memorandum Decision 39A01-1507-CR-1039 | July 8, 2016 Page 6 of 13 [15] Jefferson County Sheriff’s Department Deputy Troy Hawkins arrived at the

scene and handcuffed Boyer. Neither the buy money nor drugs were found on

Boyer. His cell phone was retrieved during the search. Text messages were

later extracted from Boyer’s cell phone. During the time leading up to and

during this controlled buy, Boyer was exchanging text messages with an

individual identified as J.R. He was describing to Boyer his observation from

his bedroom about the presence of a vehicle with “tinted out” windows. State’s

Ex. 15. During Deputy Hawkins’ search of Boyer, he also removed six knives

from different pockets of Boyer’s clothing, and removed a metal rod that Boyer

had duct-taped to his forearm.

[16] The State charged Boyer with dealing in methamphetamine, attempted dealing

in methamphetamine, and theft. The trial court granted the State’s motion to

dismiss the theft charge prior to trial and the matter proceeded to trial on the

remaining counts. The State tendered a pattern jury instruction on the defense

of abandonment, which was given over Boyer’s objection. The jury found

Boyer guilty on both counts. The trial court sentenced Boyer to five years on

each count to be served concurrently. Boyer now appeals.

Discussion and Decision I. Incredible Dubiosity [17] Boyer challenges the sufficiency of the evidence supporting his convictions

citing the incredible dubiosity rule. Upon review of a claim challenging the

sufficiency of the evidence, we neither reweigh the evidence nor conduct our

Court of Appeals of Indiana | Memorandum Decision 39A01-1507-CR-1039 | July 8, 2016 Page 7 of 13 own assessment of the credibility of the witnesses. Jackson v. State, 925 N.E.2d

369, 375 (Ind. 2010). We consider only the probative evidence and reasonable

inferences therefrom that support the conviction. Id. Conflicting evidence is

considered in a light most favorable to the trial court’s ruling. Id. We will

affirm if the probative evidence and reasonable inferences drawn therefrom

could have allowed a reasonable trier of fact to find the defendant guilty beyond

a reasonable doubt. Id.

[18] Under the incredible dubiosity rule, however, a court will impinge upon the

factfinder’s responsibility to judge the credibility of witnesses only when

confronted with inherently improbable testimony or coerced, equivocal, wholly

uncorroborated testimony of incredible dubiosity. Whatley v. State, 908 N.E.2d

276, 282 (Ind. Ct. App. 2009), trans. denied. Application of the rule is limited to

cases with very specific circumstances including that the challenged testimony

must be given by a sole testifying witness. Smith v. State, 34 N.E.3d 1211, 1221

(Ind. 2015).

[19] Here, Brooks was not the only witness offering testimony in support of Boyer’s

convictions. The November 12, 2014 transaction lasted just a few minutes.

Even though the audio equipment rendered no intelligible recording, Brooks’

testimony was corroborated by that of Armstrong. Brooks and Boyer agreed

that the transaction was to occur at the Dollar General. Deputy Armstrong

strip-searched Brooks, fitted him with a concealed wire, and gave him sixty

dollars in buy money to purchase a half gram of methamphetamine.

Armstrong saw the black truck in which Boyer was a passenger pull into the

Court of Appeals of Indiana | Memorandum Decision 39A01-1507-CR-1039 | July 8, 2016 Page 8 of 13 parking lot at the Dollar General, and Armstrong saw Brooks walk over to the

vehicle. After dropping the buy money in Boyer’s lap and grabbing the

methamphetamine from Boyer’s hand, Brooks met Armstrong and turned over

the baggie containing a substance that later tested positive for

[20] The evidence of Boyer’s crime was corroborated and not inherently improbable.

Further, the promise of leniency regarding Brooks’ pending charges in exchange

for Brooks’ cooperation does not render his testimony coerced. We have long

held that the uncorroborated testimony of an informant-buyer is sufficient to

sustain a conviction. Simmons v. State, 585 N.E.2d 1341, 1343 (Ind. Ct. App.

1992). Further, the fact that Brooks worked as a confidential informant, hoping

to receive some leniency with respect to certain charges against him, was

explained to the jury so that his credibility could be evaluated and the weight to

be assigned to his testimony could be assessed by them. The evidence is

therefore sufficient to support Boyer’s conviction for Level 5 felony dealing in

[21] The December 1, 2014 transaction between Brooks and Boyer similarly was for

a half gram of methamphetamine in exchange for sixty dollars. However,

because Boyer was suspicious that Brooks was working as a confidential

informant, the transaction was set up differently. Brooks was to meet Boyer at

the Circle K station. Officer Wallace testified that he watched Boyer meet

Brooks after arriving at the Circle K. Armstrong testified that he recognized

Brooks’ and Boyer’s voices on the audio feed and heard a voice saying, “Sixty.

Court of Appeals of Indiana | Memorandum Decision 39A01-1507-CR-1039 | July 8, 2016 Page 9 of 13 Right?” Tr. p. 141. Armstrong also heard Boyer indicate that he would have to

leave for approximately five to ten minutes and then meet at the laundromat.

The State also introduced the recording of Boyer instructing Brooks to sit at the

laundromat. Therefore, Brooks’ testimony was not uncorroborated, and was

not incredibly dubious.

[22] Boyer challenges Brooks’ testimony claiming that it was coerced. As discussed

above, the fact that Brooks hoped for leniency with respect to pending criminal

charges does not render his testimony coerced. Further, his incentive to

participate in controlled buys was revealed to the jury. Brooks’ testimony with

respect to this charge is not incredibly dubious. The evidence is sufficient to

support Boyer’s conviction of attempted dealing in methamphetamine.

II. Jury Instruction 3 [23] Boyer argues that the trial court abused its discretion by giving the instruction

on the defense of abandonment. We begin our analysis with a recitation of our

well-known and often cited standard of review. Our trial courts enjoy broad

discretion in the instruction of juries which we review for an abuse of that

discretion. McCowan v. State, 27 N.E.3d 760, 763 (Ind. 2015). Reviewing a trial

court’s decision to give or refuse a tendered instruction requires us to examine

whether (1) the instruction correctly states the law, (2) there is evidence in the

3 Indiana Appellate Rule 46(A)(8)(e) provides that when “error is predicated on the giving or refusing of any instruction, the instruction shall be set out verbatim in the argument section of the brief with the verbatim objections, if any, made thereto.”

Court of Appeals of Indiana | Memorandum Decision 39A01-1507-CR-1039 | July 8, 2016 Page 10 of 13 record to support giving the instruction, and (3) the substance of the tendered

instruction is covered by other instructions which were given. Bell v. State, 820

N.E.2d 1279, 1283 (Ind. Ct. App. 2005), trans. denied.

[24] Here, the question is whether the trial court properly exercised its discretion in

giving the abandonment instruction at the State’s request over Boyer’s

objection. Boyer argues that giving the instruction confused the jury about the

element of intent and deprived him of an all-or-nothing defense.

[25] When a defendant is charged with attempting to commit a crime, it is a defense

that the person who engaged in the prohibited conduct voluntarily abandoned

his effort to commit the underlying crime and voluntarily prevented its

commission. Ind. Code § 35-41-3-10 (1977). “[W]hether a defendant’s

abandonment of a criminal effort is voluntary is a question of fact for the jury to

decide.” Gravens v. State, 836 N.E.2d 490, 495 (Ind. Ct. App. 2005), trans.

denied. However, for an abandonment to be considered voluntary, it must in no

way be attributable to the influence of extrinsic circumstances. Barnes v. State,

269 Ind. 76, 82, 378 N.E.2d 839, 843 (1978). “In short, the attempt to commit

a crime must be freely and voluntarily abandoned before the crime is completed

and under such circumstances as would show that there were no outside causes

prompting the abandonment.” Id.

[26] Boyer agrees that the instruction is a correct statement of the law that is not

covered by other instructions. Instead, he argues that the instruction is not

supported by the evidence, noting that he did not advance that theory at trial.

Court of Appeals of Indiana | Memorandum Decision 39A01-1507-CR-1039 | July 8, 2016 Page 11 of 13 Assuming without deciding that the trial court erred by giving the instruction

on the basis that it was not supported by the evidence, instructional error is

harmless where a conviction is clearly sustained by the evidence and the

instruction would not likely have impacted the jury’s verdict. Townsend v. State,

934 N.E.2d 118, 127-28 (Ind. Ct. App. 2010). Such is the case here.

[27] The jury had before it evidence that Boyer and Brooks communicated about the

December 1, 2014 transaction by telephone and text messages. Armstrong was

able to identify Brooks’ and Boyer’s voices on the audio transmission. Brooks

confirmed that the half gram of methamphetamine cost sixty dollars. Boyer

told Brooks that this transaction would have to be conducted a little differently

because Boyer suspected Brooks was working as a confidential informant for

the police. Boyer took the buy money from Brooks and devised a plan for the

exchange of the drugs to be made by use of a cigarette carton, the location of

which Boyer would communicate to Brooks. Instead, at Boyer’s suggestion,

the two met at the laundromat where Boyer subsequently was taken into

custody. Text messages exchanged between Boyer and a person identified as

J.R. revealed that J.R. was watching a car with tinted windows near the

location of the buy. This is sufficient evidence to establish that Boyer attempted

to deal in methamphetamine. Assuming, arguendo, that there was instructional

error, such error does not require reversal.

Conclusion [28] In light of the foregoing, we affirm Boyer’s convictions.

Court of Appeals of Indiana | Memorandum Decision 39A01-1507-CR-1039 | July 8, 2016 Page 12 of 13 [29] Affirmed.

Riley, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 39A01-1507-CR-1039 | July 8, 2016 Page 13 of 13