Cathy L. Sizemore-Roessler v. State of Indiana (mem.dec.)

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 26 2017, 6:16 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Madison, Indiana Attorney General of Indiana

Katherine Cooper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Cathy L. Sizemore-Roessler, April 26, 2017 Appellant-Defendant, Court of Appeals Case No. 15A01-1609-CR-2090 v. Appeal from the Dearborn Superior Court State of Indiana, The Honorable Sally A. Appellee-Plaintiff McLaughlin, Judge Trial Court Cause No. 15D02-1506-F2-9

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 15A01-1609-CR-2090 | April 26, 2017 Page 1 of 9 [1] Cathy L. Sizemore-Roessler appeals following her conviction for Level 2 felony

conspiracy to commit dealing in methamphetamine. She presents the following

two issues on appeal:

1. Did the State present sufficient evidence to support Sizemore- Roessler’s conviction?

2. Is Sizemore-Roessler’s twelve-year sentence inappropriate?

[2] We affirm.

Facts & Procedural History

[3] During the time relevant to this appeal, Sizemore-Roessler owned property on

Morgan Road in Dearborn County. There was a residence on the property, in

which Sizemore-Roessler lived with her two adult sons, Joseph and Michael

Sizemore, as well as Kenneth Reed, Corey Lyons, and Carl Gallardo. There

was also a trailer located on the property, in which Michael and Mary Robbins,

Janice Lay, and Jimmy McConnell resided.

[4] In March 2015, Detective Carl Pieczonka of the Dearborn County Sheriff’s

Department received a tip from a confidential informant that Joseph was

manufacturing methamphetamine on his mother’s property and that multiple

people were purchasing pseudoephedrine for Joseph to use in the

manufacturing process. Detective Pieczonka began his investigation by

accessing the National Precursor Log Exchange (NPLEX), a national database

where purchases of pseudoephedrine are logged. State law limits the amount of

Court of Appeals of Indiana | Memorandum Decision 15A01-1609-CR-2090 | April 26, 2017 Page 2 of 9 pseudoephedrine an individual may purchase to seven grams per month.

NPLEX records revealed that Sizemore-Roessler had purchased 21.84 grams of

pseudoephedrine between March 6 and May 30, 2015. NPLEX records further

revealed that several of the individuals living on Sizemore-Roessler’s property

had also purchased pseudoephedrine during the same timeframe.

[5] During the course of his investigation, Detective Pieczonka learned that

Sizemore-Roessler had been transporting other people to purchase

pseudoephedrine. As a result, on May 6, 2015, Detective Pieczonka obtained a

warrant to place a tracking device on Sizemore-Roessler’s vehicle. Law

enforcement used the tracking device to conduct mobile surveillance and

observed Sizemore-Roessler transporting various individuals to and from a

Kroger Pharmacy and other locations. Detective Pieczonka also learned that

Sizemore-Roessler had purchased lithium batteries and Coleman camp fuel,

both of which are methamphetamine precursors.

[6] Law enforcement executed a search warrant at Sizemore-Roessler’s property on

June 1, 2015. The officers located an active methamphetamine lab in a shed,

along with numerous items related to methamphetamine manufacturing in the

shed, in a burn pile near the shed, and inside Sizemore-Roessler’s house. Police

also found methamphetamine in the shed and inside the house. In Sizemore-

Roessler’s vehicle, police found batteries, receipts for lantern fuel and batteries,

a handwritten shopping list for salt and coffee filters, and several handguns with

clips and magazines.

Court of Appeals of Indiana | Memorandum Decision 15A01-1609-CR-2090 | April 26, 2017 Page 3 of 9 [7] As a result of the investigation, Sizemore-Roessler was charged, along with

most of the individuals living on her property, with Level 2 felony conspiracy to

commit dealing in methamphetamine in an amount greater than ten grams and

Level 2 felony dealing in methamphetamine in an amount greater than ten

grams. Sizemore-Roessler’s codefendants pled guilty to lesser offenses, but

Sizemore-Roessler’s case proceeded to a bench trial, at which Sizemore-

Roessler appeared pro se. At the conclusion of the evidence, the trial court

convicted Sizemore-Roessler of the conspiracy charge and imposed a twelve-

year executed sentence. Sizemore-Roessler now appeals. Additional facts will

be provided as necessary.

Discussion & Decision

1. Sufficiency of the Evidence

[8] Sizemore-Roessler argues that the State presented insufficient evidence to

support her conspiracy conviction. In reviewing a challenge to the sufficiency

of the evidence, we neither reweigh the evidence nor judge the credibility of

witnesses. Atteberry v. State, 911 N.E.2d 601, 609 (Ind. Ct. App. 2009). Instead,

we consider only the evidence supporting the conviction and the reasonable

inferences flowing therefrom. Id. If there is substantial evidence of probative

value from which a reasonable trier of fact could have drawn the conclusion

that the defendant was guilty of the crime charged beyond a reasonable doubt,

the judgment will not be disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137

(Ind. Ct. App. 2008). It is not necessary that the evidence overcome every

Court of Appeals of Indiana | Memorandum Decision 15A01-1609-CR-2090 | April 26, 2017 Page 4 of 9 reasonable hypothesis of innocence; rather, the evidence is sufficient if an

inference may reasonably be drawn from it to support the conviction. Drane v.

State, 867 N.E.2d 144, 147 (Ind. 2007).

[9] To convict Sizemore-Roessler of Level 2 felony conspiracy to commit dealing

in methamphetamine as charged, the State was required to prove that

Sizemore-Roessler, with the intent to commit dealing in methamphetamine in

an amount greater than ten grams, agreed with the charged co-conspirators to

commit that offense and performed an overt act in furtherance of the

agreement, namely, purchasing pseudoephedrine and/or other

methamphetamine precursors. Appellant’s Appendix Vol. 2 at 36. See also Ind.

Code § 35-41-5-2; Ind. Code § 35-48-4-1.1. To support a conspiracy conviction,

the State need not present direct evidence of a formal express agreement. Erkins

v. State, 13 N.E.3d 400, 407 (Ind. 2014). “The agreement as well as the

requisite guilty knowledge and intent may be inferred from circumstantial

evidence alone, including overt acts of the parties in pursuance of the criminal

act.” Id. (quoting Survance v. State, 465 N.E.2d 1076, 1080 (Ind. 1984)).

[10] Sizemore-Roessler does not dispute that methamphetamine was being

manufactured on her property. Rather, she argues that the State presented

insufficient evidence to establish that she was a party to any agreement to do so.

We disagree. The State presented evidence that Sizemore-Roessler bought a

significant amount of pseudoephedrine and other precursors for Joseph and

Lyons, who were manufacturing methamphetamine on her property. The State

also presented evidence that Sizemore-Roessler transported several other people

Court of Appeals of Indiana | Memorandum Decision 15A01-1609-CR-2090 | April 26, 2017 Page 5 of 9 to do the same on numerous occasions. Indeed, Kenneth Reed testified that

Sizemore-Roessler threatened to kick him out if he did not comply with her

demands to purchase pseudoephedrine. Multiple witnesses testified that

Sizemore-Roessler knew that these items were being used to manufacture

methamphetamine, and Sizemore-Roessler admitted at trial that she knew

Joseph and Lyons were manufacturing methamphetamine on her property.

This evidence was more than sufficient to support Sizemore-Roessler’s

conspiracy conviction, and her arguments to the contrary are nothing more

than requests to reweigh the evidence.

2. Inappropriate Sentence

[11] Sizemore-Roessler also argues that her twelve-year executed sentence is

inappropriate. Article 7, section 4 of the Indiana Constitution grants our

Supreme Court the power to review and revise criminal sentences. See Knapp v.

State, 9 N.E.3d 1274, 1292 (Ind. 2014), cert. denied, 135 S.Ct. 978 (2015).

Pursuant to Ind. Appellate Rule 7, the Supreme Court authorized this court to

perform the same task. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

Per App. R. 7(B), we may revise a sentence “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.” Inman v. State, 4

N.E.3d 190, 203 (Ind. 2014) (quoting App. R. 7). “Sentencing review under

Appellate Rule 7(B) is very deferential to the trial court.” Conley v. State, 972

N.E.2d 864, 876 (Ind. 2012). “Such deference should prevail unless overcome

by compelling evidence portraying in a positive light the nature of the offense

Court of Appeals of Indiana | Memorandum Decision 15A01-1609-CR-2090 | April 26, 2017 Page 6 of 9 (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).

[12] The determination of whether we regard a sentence as inappropriate “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.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell, 895

N.E.2d at 1224). Moreover, “[t]he principal role of such review is to attempt to

leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). It is

not our goal in this endeavor to achieve the perceived “correct” sentence in

each case. Knapp, 9 N.E.3d at 1292. Accordingly, “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.” King v. State,

894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in original).

[13] In order to assess the appropriateness of a sentence, we first look to the

statutory range established for the classification of the relevant offense.

Sizemore-Roessler was convicted of Level 2 felony conspiracy to commit

dealing in methamphetamine. The sentencing range for a Level 2 felony is ten

to thirty years, with an advisory sentence of seventeen and a half years. Ind.

Code § 35-50-2-4.5. When a defendant has received the advisory sentence, he

or she faces a “particularly heavy burden” in persuading this court that the

sentence is inappropriate. Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct.

Court of Appeals of Indiana | Memorandum Decision 15A01-1609-CR-2090 | April 26, 2017 Page 7 of 9 App. 2011), trans. denied. That burden is even more formidable where, as here,

the defendant receives a sentence well below the advisory.

[14] Considering the nature of the offense, we note that Sizemore-Roessler was an

active participant in a criminal methamphetamine manufacturing enterprise.

She knowingly allowed Joseph and Lyons to cook methamphetamine on her

property and provided them with materials to do so on numerous occasions.

Sizemore-Roessler purchased many of these items herself, and she also asked

several others to do the same and transported them to do so. Furthermore,

Reed testified that Sizemore-Roessler threatened to kick him out if he did not

comply with her demands to purchase pseudoephedrine. The combined efforts

of Sizemore-Roessler and her codefendants resulted in the purchase of 162.2

grams of pseudoephedrine over a three-month period. Law enforcement

officers testified that this amount of pseudoephedrine would yield much more

than ten grams of methamphetamine. We note further that police found four

handguns and ammunition in Sizemore-Roessler’s vehicle. Moreover, by

allowing an active methamphetamine lab on her property, Sizemore-Roessler

endangered the lives and health of the numerous people and animals who lived

there.

[15] Considering the character of the offender, we acknowledge that Sizemore-

Roessler has no prior criminal history. We note further, however, that

Sizemore-Roessler has refused to follow some of the jail’s rules and testified

that she continues to refuse to move to general population as ordered.

Sizemore-Roessler also stated that she would continue to take pseudoephedrine

Court of Appeals of Indiana | Memorandum Decision 15A01-1609-CR-2090 | April 26, 2017 Page 8 of 9 even though her health conditions make it unsafe for her to do so and it can be

used to make methamphetamine.

[16] Sizemore-Roessler’s main argument is that her sentence is inappropriate

because Joseph and Lyons, who carried out the actual manufacturing of

methamphetamine, received shorter sentences than she did. Specifically,

Joseph was sentenced to sixteen years with six years suspended and Lyons was

sentenced to ten years executed. As an initial matter, we are unconvinced by

Sizemore-Roessler’s argument that she is less culpable than her codefendants

simply because she did not undertake to manufacture methamphetamine

herself. The evidence presented established that she was an active participant

and provided numerous precursors and a location for Joseph and Lyons to cook

methamphetamine. Moreover, Joseph and Lyons each pled guilty to a Level 3

felony, while Sizemore-Roessler was convicted after a bench trial of a Level 2

felony. It is therefore unsurprising that her executed sentence exceeds those of

Joseph and Lyons.

[17] In sum, the trial court in this case exercised considerable lenience when it

sentenced Sizemore-Roessler to twelve years—a sentence well below the

advisory of seventeen and half years for a Level 2 felony. Sizemore-Roessler

has fallen far short of establishing that her sentence is inappropriate.

[18] Judgment affirmed.

[19] Kirsch, J. and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 15A01-1609-CR-2090 | April 26, 2017 Page 9 of 9