MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 28 2020, 8:30 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Justin R. Wall Curtis T. Hill, Jr. Huntington, Indiana Attorney General of Indiana
J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brandon Blaine Evans, September 28, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-525 v. Appeal from the Huntington Superior Court State of Indiana, The Honorable Jennifer E. Appellee-Plaintiff. Newton, Judge Trial Court Cause No. 35D01-1908-F2-250
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-525 | September 28, 2020 Page 1 of 15 Case Summary
[1] Brandon Evans appeals his convictions for conspiracy to commit dealing in
methamphetamine, a Level 2 felony, and conspiracy to commit dealing in
heroin, a Level 4 felony, claiming that the evidence was insufficient to support
his convictions, that convicting him of both offenses violated the prohibition
against double jeopardy, and that his sentence was inappropriate.
[2] We affirm.
Facts and Procedural History
[3] On May 14, 2019, Andrews Town Marshal Austin Bullock received
information regarding the whereabouts of Evans who was the subject of an
arrest warrant. Marshal Bullock learned that Evans was dealing drugs in the
area and was driving a Chevrolet Colorado.
[4] Later that day, Marshal Bullock spotted a vehicle that matched the Colorado’s
description. Marshal Bullock identified Evans as the driver, stopped the
vehicle, and arrested Evans on the outstanding warrant. During a search
incident to the arrest, Evans was found in possession of $1000 dollars in cash.
He was then transported to the Huntington County Jail.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-525 | September 28, 2020 Page 2 of 15 [5] Marshal Bullock had previously worked as a special deputy at the Huntington
County Jail and was familiar with the inmate calling system, in that he knew
that each inmate is assigned a Personal Identification Number (PIN) that
permits the jail staff to match phone calls with the specific inmate. The system
documents who is on the phone and whether the call is outgoing or incoming.
Marshal Bullock monitored Evans’s telephone calls at the jail, and later
downloaded them.
[6] While Evans was incarcerated, he spoke by phone with Erica Wrisk, Rodney
Smith, Troy Martin, and David Odham on numerous occasions. Law
enforcement officials learned that Wrisk had been living at 808 Mill Street and
686½ High Street, in Wabash. During various telephone conversations, Evans
referenced an eyeglass case at one of Wrisk’s residences that contained drugs.
During the calls, Evans and the others discussed the types of drugs—including
methamphetamine and heroin, pricing, and quantities of the drugs that they
intended to sell. Marshal Bullock relayed the information he learned from the
phone conversations to Wabash County Drug Task Force (Task Force)
personnel.
[7] On May 20, 2019, Task Force officers conducted surveillance at the High Street
residence. At some point, they observed Wrisk leave that house and go to the
Mill Street residence. Wrisk entered the house with a backpack, where she
remained inside for about five minutes. After observing Wrisk return to her
vehicle without the backpack, law enforcement officers obtained a search
warrant for both residences.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-525 | September 28, 2020 Page 3 of 15 [8] When the police arrived at the High Street house, Wrisk and Martin were
inside. One of the officers collected and photographed various items indicative
of narcotics usage and dealing, including large sums of currency, multiple
digital scales, cell phones, syringes, a spoon, and burnt residue on a syringe.
The officers also seized ledgers that listed the names of drug purchasers and the
amount of drugs they had purchased. A field test on some white residue inside
a ziplock bag revealed the presence of methamphetamine.
[9] The officers found the Mill Street residence unoccupied and unlocked. When
executing the warrant, the officers seized a draw string bag from under a
mattress that contained about 230 grams of methamphetamine. They also
recovered discovered 3.7 grams of heroin in a plastic wrapper inside the
eyeglass case that Wrisk and Evans had discussed.
[10] Cell phones were also seized and the officers discovered that Martin’s phone
contained numerous Facebook messenger threads that involved discussions
with Evans and the others regarding heroin and methamphetamine sales and
delivery. In addition to the 3.7 grams of heroin found in the eyeglass case,
laboratory analysis confirmed that the officers seized a total of 223.29 grams of
methamphetamine and another 2.89 grams of heroin.
[11] On August 16, 2019, Evans was charged with Count I, conspiracy to commit
dealing in methamphetamine, a Level 2 felony; and Count II, conspiracy to
commit dealing in heroin, a Level 4 felony. The State also alleged that Evans
was a habitual offender.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-525 | September 28, 2020 Page 4 of 15 [12] Following a jury trial on January 31, 2020, Evans was found guilty as charged,
and he admitted to being a habitual offender. Evans was subsequently
sentenced to thirty years of incarceration on Count I that was enhanced by
fifteen years on the habitual offender count. Evans was sentenced to twelve
years on Count II that was ordered to run concurrently with the sentence in
Count I. Thus, Evans was ordered to serve an aggregate sentence of forty-five
years, and he now appeals.
Discussion and Decision
I. Sufficiency of the Evidence
[13] Evans claims that the evidence was insufficient to support his convictions.
Specifically, Evans contends that his convictions cannot stand because the State
did not present any “independent evidence” or “overt acts,” that established his
guilt. Appellant’s Brief at 15.
[14] When reviewing sufficiency of the evidence claims, we do not reweigh the
evidence or judge the credibility of the witnesses. Bailey v. State, 907 N.E.2d
1003, 1005 (Ind. 2009). We consider only the evidence supporting the verdict
and any reasonable inferences that can be drawn therefrom. Morris v. State, 114
N.E.3d 531, 535 (Ind. Ct. App. 2018), trans. denied. Conflicting evidence is
considered most favorable to the verdict. Silvers v. State, 114 N.E.3d 931, 936
(Ind. Ct. App. 2018). We will affirm if there is substantial evidence of probative
Court of Appeals of Indiana | Memorandum Decision 20A-CR-525 | September 28, 2020 Page 5 of 15 value such that a reasonable trier of fact could have concluded the defendant
was guilty beyond a reasonable doubt. Bailey, 907 N.E.2d at 1005.
[15] Our conspiracy statute provides that “[a] person conspires to commit a felony
when, with intent to commit the felony, [he] agrees with another person to
commit the felony” and “either the person or the person with whom he . . .
agreed performs an overt act in furtherance of the agreement.” Ind. Code § 35-
41-5-2. To convict Evans of Count I, the State was required to prove that
Evans “on or between May 14, 2019 and May 20, 2019, in Huntington County,
[Evans], with intent to commit Dealing in Methamphetamine, agreed with . . .
Erica Wrisk and/or Troy Martin and/or Richard Smith and/or David Odham,
to deliver methamphetamine, and the other person performed an overt act in
furtherance of the agreement, and the amount of the drug involved was at least
ten (10) grams.” I.C. § 35-41-5-2; Ind. Code § 35-48-4-1.1. Count II required
the same, except the State was required to prove that the drug was heroin that
weighed at least three grams but less than seven grams.
[16] Our Supreme Court has summarized the nature of the evidence required to
prove a conspiracy as follows:
A conspiracy entails an intelligent and deliberate agreement between the parties. But the state is not required to prove the existence of a formal express agreement. It 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.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-525 | September 28, 2020 Page 6 of 15 Understandably then, a conviction for conspiracy may, and often will, rest solely on circumstantial evidence.
Minniefield v. State, 512 N.E.2d 1103, 1105 (Ind. 1987).
[17] In this case, the State presented evidence that Evans and his co-conspirators
performed multiple acts in furtherance of the conspiracies. Numerous
telephone calls were made and received among Evans, Wrisk, and the others,
regarding the sale and quantity of the methamphetamine and heroin that they
had sold and intended to sell. Evans coordinated the operations through
telephone conversations and Facebook messaging with his fellow conspirators
regarding the sale and delivery of the drugs.
[18] Wrisk concealed a large quantity of methamphetamine and heroin, scales, and
the paraphernalia used in the drug sales. The ledgers that law enforcement
officers seized revealed the names of the buyers and the amount of the drugs
that were involved in each transaction.
[19] Evans’s claim that the State relied exclusively on the statements made by the
co-conspirators to prove that he committed the offenses is misplaced. He
overlooks the evidence discussed above that pertained to the multiple acts taken
in furtherance of the conspiracy to deal drugs. In short, the evidence
sufficiently established that Evans participated in the conspiracy to sell
methamphetamine and heroin, and we decline to set aside his convictions.
II. Double Jeopardy
Court of Appeals of Indiana | Memorandum Decision 20A-CR-525 | September 28, 2020 Page 7 of 15 [20] Evans argues that his convictions cannot stand because he was twice convicted
of the “same offense” in violation of double jeopardy principles. Appellant’s
Brief at 20. Evans claims he was subjected to double jeopardy because “there is
no factual basis distinguishing the two [offenses], other than the State has
claimed different drug types and different weights of each drug.” Id. Evans
asserts in the alternative that double jeopardy occurred because his alleged acts
constituted only one offense under the continuous crime doctrine.
[21] Our Supreme Court recently reaffirmed the notion that “a primary purpose of
the Double Jeopardy Clause is to preserve the finality of judgments.” Wadle v.
State, No. 19S-CR-340, slip op. at 9 (Ind. Aug. 18, 2020) (quoting Crist v. Bretz,
437 U.S. 28, 33 (1978)). By ensuring finality, this constitutional guarantee
“shields against governmental harassment in that it bars the state from making
repeated attempts to convict an accused for the same offense.” Id. Whether a
defendant is subjected to double jeopardy prohibitions is a question of law that
this court reviews de novo. Powell v. State, No. 19S-CR-527, slip op. at 5 (Ind.
Aug. 18, 2020); A.M. v. State, 134 N.E.3d 361, 364 (Ind. 2019).
[22] The double jeopardy “statutory elements test” applies a comparative analysis of
the statutory elements to determine whether two or more offenses are the
“same.” Wadle, slip op. at 9. This test, used by the federal judiciary, and
articulated by the United States Supreme Court, provides that “where the same
act or transaction” violates two distinct statutes, the question is whether each
statute “requires proof of a fact which the other does not.” Blockburger v. United
States, 284 U.S. 299, 304 (1932). If the answer to this question is “yes,” the two Court of Appeals of Indiana | Memorandum Decision 20A-CR-525 | September 28, 2020 Page 8 of 15 offenses are different; otherwise, the two offenses are the same. Id.; see also
Wadle, slip op. at 9. The statutory elements test in Indiana generally tracks the
federal Blockburger analysis. Wadle, slip op. at 11. The Wadle Court, however,
recognized that this test, though relatively easy to apply, “offers little protection
to criminal defendants: so long as one charged offense diverges from another
charged offense based on a single element of proof, prosecutors can easily
circumvent the test.” Id., slip op. at 17.
[23] The Wadle Court then discussed the double jeopardy “actual evidence test” that
was first articulated in Richardson v. State, 717 N.E.2d 32 (Ind. 1999). This test
looks to whether two or more offenses are the same “based on the evidence
actually presented at trial, rather than engaging in a strict comparative analysis
of the statutory elements.” Id. at 9 (citing Richardson, 717 N.E.2d at 42 n.23).
Wadle noted that the adoption of the statutory elements test and the actual
evidence test “did little to reconcile decades of conflicting precedent,” and that
a “strict application of the actual-evidence test can . . . lead to illogical results. .
. .” Id. at 11, 13. Hence, Wadle concluded that “what we’re left with, then, is a
patchwork of conflicting precedent, a jurisprudence of double jeopardy double
talk.” Wadle, slip op. at 16 (citing Akhil Reed Amar, Double Jeopardy Law Made
Simple, 106 Yale L.J. 1807, 1807 (1997)). In the end, the Wadle Court expressly
overruled the constitutional tests formulated in Richardson as they apply to
claims of substantive double jeopardy. Id. at 17.
[24] As a result of overruling Richardson, the Wadle Court went on to determine the
proper analytical framework for resolving state double jeopardy claims “going Court of Appeals of Indiana | Memorandum Decision 20A-CR-525 | September 28, 2020 Page 9 of 15 forward.” Id. at 22. Wadle first observed that substantive double jeopardy
claims principally arise in one of two situations: (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. Id. at 22-23. The Court then
explained:
When multiple convictions for a single act or transaction implicate two or more statutes, we first look to the statutes themselves. If either statute clearly permits multiple punishment, whether expressly or by unmistakable implication, the court’s inquiry comes to an end and there is no violation of substantive double jeopardy. But if the statutory language is not clear, then a court must apply our included-offense statutes to determine whether the charged offenses are the same. See I.C § 35-31.5-2- 168. If neither offense is included in the other (either inherently or as charged), there is no violation of double jeopardy. But if one offense is included in the other (either inherently or as charged), then the court must examine the facts underlying those offenses, as presented in the charging instrument and as adduced at trial. If, based on these facts, 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,” then the prosecutor may charge the offenses as alternative sanctions only. But if the defendant’s actions prove otherwise, a court may convict on each charged offense.
Id. at 16. In either circumstance described above, the dispositive question is one
of statutory intent. See Paquette v. State, 101 N.E.3d 234, 239 (Ind. 2018) (single
statutory offense/multiple victims); Emery v. State, 717 N.E.2d 111, 112-13 (Ind.
1999) (multiple statutory offenses/single victim). If the defendant’s criminal
Court of Appeals of Indiana | Memorandum Decision 20A-CR-525 | September 28, 2020 Page 10 of 15 acts are sufficiently distinct, then multiple convictions may stand; but if those
acts are continuous and indistinguishable, a court may impose only a single
conviction. Armstead v. State, 549 N.E.2d 400, 402 (Ind. Ct. App. 1990).
[25] Turning to the circumstances here, the thrust of Evans’s double jeopardy claim
is that his alleged participation in the conspiracies amounted to but a single act
and, therefore, convictions on both counts were improper because only a single
offense was committed. Notwithstanding Evans’s contention that there was
only one agreement that established only a single offense, the State was
required to prove that Evans conspired to deliver at least ten grams of
methamphetamine to establish the Level 2 methamphetamine dealing offense.
I.C. § 35-48-4-1.1(a)(1)(A); I.C. § 35-48-4-1.1(e)(1); I.C. § 35-41-5-2. And to
demonstrate that Evans committed conspiracy to deal in heroin, a Level 4
felony, the State was required to show that he conspired to deliver heroin in an
amount between three and seven grams. I.C. § 35-48-4-1.1(a)(1)(C); I.C. § 35-
48-4-1.1(c)(3); I.C.§ 35-41-5-2. Simply put, the dealing in methamphetamine
charge had nothing to do with the heroin dealing charge. Each drug was
peculiar to each count, the elements of each offense were different, and the State
proved Evans’s agreement with his co-conspirators to deal in each substance,
i.e., the proof of distinct criminal acts. See Wadle, slip op. at 16. As a result,
there was no double jeopardy violation on this basis.
[26] We similarly reject Evans’s alternative contention that his convictions violate
double jeopardy principles under the “continuing crime doctrine.” Appellant’s
Brief at 22. This rule “defines those instances where a defendant’s conduct
Court of Appeals of Indiana | Memorandum Decision 20A-CR-525 | September 28, 2020 Page 11 of 15 amounts to only a single chargeable crime” and thus prevents the State from
charging a defendant “twice for the same continuous offense.” Hines v. State, 30
N.E.3d 1216, 1219 (Ind. 2015). The rule does not seek to reconcile the double
jeopardy implications of two distinct chargeable crimes; rather, it defines those
instances where a defendant’s conduct amounts only to a single chargeable
crime. Id. It does not apply where, like here, there are separately chargeable
offenses. See id. at 1220-21 (holding that the continuing crime doctrine did not
apply where the defendant was convicted of confinement and battery and was
“not convicted of multiple charges of criminal confinement, nor multiple
charges of battery”) (emphasis added).
[27] As discussed above, Evans was not charged with multiple conspiracies to
deliver heroin; nor was he charged with multiple acts of conspiring to deal in
methamphetamine. Rather, Evans was shown to have conspired to deliver
each of the two different drugs as charged. In short, conspiracy to deal in
methamphetamine and conspiracy to deal in heroin are two distinct chargeable
crimes to which the continuous crime doctrine does not apply. Hence, there is
no double jeopardy violation under this rule.
III. Sentencing
[28] Evans claims that his sentence is inappropriate when considering the nature of
the offense and his character. Evans argues that his sentence must be revised
because “in no way did he personally injure a party, cause financial harm or
other harm to any specific individuals.” Appellant’s Brief at 27.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-525 | September 28, 2020 Page 12 of 15 [29] 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.” Sentencing decisions rest within the
discretion of the trial court and should receive considerable deference. Cardwell
v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). “Such deference should prevail
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).
[30] The defendant bears the burden of demonstrating that the sentence is
inappropriate under the standard, Childress v. State, 848 N.E.2d 1073, 1080
(Ind. 2006), and we may look to any factors in the record for such a
determination. Reis v. State, 88 N.E.3d 1099, 1102 (Ind. Ct. App. 2017).
Ultimately, 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 factors that come to light
in a given case.” Cardwell, 895 N.E.2d at 1224.
[31] We begin our analysis of the nature of the offense with the advisory sentence,
which is the starting point selected by our legislature as an appropriate sentence
for the crime committed. Reis, 88 N.E.3d at 1104. Evans was convicted of
conspiracy to commit dealing in methamphetamine, a Level 2 felony, and
Court of Appeals of Indiana | Memorandum Decision 20A-CR-525 | September 28, 2020 Page 13 of 15 conspiracy to commit dealing in heroin, a Level 4 felony. The sentencing range
for a Level 2 felony is ten to thirty years with an advisory sentence of seventeen-
and-one-half years. Ind. Code § 35-50-2-4.5. And the range for a Level 4 felony
is two years to twelve years with an advisory sentence of six years. See I.C. §
35-50-2-5.5 As noted above, the trial court sentenced Evans to thirty years on
Count I and to twelve years on Count II. Evans was ordered to serve those
sentences concurrently 1 for an aggregate sentence of forty-five years that
included the fifteen-year enhancement on the habitual offender count. Under
the sentencing statutes, the trial court could have sentenced Evans to additional
time by ordering the sentences on both counts to run consecutively to each
other.
[32] Although Evans maintains that his sentence should be reduced because the
offenses were “not particularly egregious,” Appellant’s Brief at 26, the evidence
shows that Evans orchestrated the drug dealing operations while he was
incarcerated, and he was already facing other charges when he committed the
instant offenses. And while the statute for the methamphetamine charge
required an amount of methamphetamine in excess of ten grams, see I.C. § 35-
48-4-1.1, there were over 220 grams of that drug involved here. Evans has
failed to show that the nature of the offenses warrants a lesser sentence.
1 Inasmuch as the trial court ordered the sentences in both counts to run concurrently with each other, Evans’s inappropriate sentence argument focuses on the thirty-year sentence imposed on Count I.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-525 | September 28, 2020 Page 14 of 15 [33] Next, we note that a defendant’s life and conduct are illustrative of his or her
character. Morris v. State, 114 N.E.3d at 539. An important factor in assessing
character is a defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867,
874 (Ind. Ct. App. 2007). The significance of criminal history varies based on
the gravity, nature, and number of prior offenses in relation to the current
offense. Id.
[34] Evans has amassed juvenile adjudications, six felony convictions, and five
misdemeanor convictions since 2004. Those convictions include battery,
robbery, theft, and various drug dealing offenses. Evans also violated
probation, has been disciplined while incarcerated, has violated parole on
several occasions, and has been involved in gang activity.
[35] Although Evans has been granted parole and has been placed on probation in
the past, he has shown continued disrespect for the rule of law and has
continued to commit criminal offenses. That said, when considering the nature
of Evans’s offenses and his character, we are not persuaded that his sentence is
inappropriate. Thus, we decline to disturb Evans’s sentence.
[36] Judgment affirmed
Riley, J. and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-525 | September 28, 2020 Page 15 of 15