Harry Spicer v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 13, 2015
• Docket: 15A04-1504-CR-148
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Nov 13 2015, 9:45 am regarded as 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 Leanna Weissmann Gregory F. Zoeller Lawrenceburg, Indiana Attorney General of Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Harry Spicer, November 13, 2015 Appellant-Defendant, Court of Appeals Case No. 15A04-1504-CR-148 v. Appeal from the Dearborn Superior Court State of Indiana, The Honorable Sally A. Appellee-Plaintiff. Blankenship, Judge Trial Court Cause No. 15D02-0610-FB-14

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 15A04-1504-CR-148 | November 13, 2015 Page 1 of 9 STATEMENT OF THE CASE

[1] Appellant-Defendant, Harry Spicer (Spicer), appeals the trial court’s revocation

of his probation and imposition of his suspended sentence.

[2] We affirm.

ISSUES

[3] Spicer raises two issues on appeal, which we restate as:

(1) Whether there was sufficient evidence to revoke Spicer’s probation; and

(2) Whether the trial court appropriately imposed the balance of Spicer’s

previously suspended sentence.

FACTS AND PROCEDURAL HISTORY

[4] On May 10, 2007, Spicer pled guilty to conspiracy to manufacture

methamphetamine, a Class B felony. On the same day, the trial court accepted

the plea and sentenced Spicer to fifteen years, with twelve years and 180 days

suspended to probation. On April 16, 2008, Spicer was charged with operating

a vehicle while intoxicated. The next day, Spicer’s probation officer requested a

probation violation hearing, alleging that Spicer had committed a new offense.

On July 1, 2008, after finding that Spicer had violated his probation, the trial

court revoked 90 days of Spicer’s suspended sentence and converted it to jail

time. As a result, Spicer was left with twelve years and ninety days suspended

to probation.

Court of Appeals of Indiana | Memorandum Decision 15A04-1504-CR-148 | November 13, 2015 Page 2 of 9 [5] Between January 30, 2014 and February 12, 2014, Detective Norman Rimstidt

(Detective Rimstidt) of Rising Sun Police Department, Ohio County, Indiana,

was monitoring an ongoing investigation of methamphetamine manufacturing

involving Lisa Ellis (Ellis) and Sam Spicer (Sam)—Spicer’s brother. Ellis and

Sam would collect boxes of pseudoephedrine and take them to Vern Newton

(Newton) in Ohio. In exchange for their efforts, Ellis and Sam would receive

half of the finished batch of methamphetamine from Newton.

[6] The record shows that in February 2014, Ellis and Sam drove to Ohio when

their vehicle broke down. Newton picked them up from their location, and the

following day, Ellis and Sam borrowed Newton’s car to go and try to fix their

car. On the way, they made a stop at Walmart. While inside Walmart, Sam

was arrested for shoplifting. Having no vehicle to drive back to Indiana and the

fact that Sam was in jail, Ellis called Spicer to pick her up.

[7] When Spicer arrived in Ohio, he drove to Newton’s house where he picked up

Ellis and both of them went to the police station. Because Spicer and Ellis were

unable to bail out Sam, they returned to Newton’s house to collect the

methamphetamine that Newton owed Ellis. Ellis split the drugs with Spicer as

recompense for picking her up. Together, Ellis and Spicer then drove back to

Ellis’ house in Indiana and used the methamphetamine that Newton had given

them.

[8] A few days later, Spicer and Ellis returned to Ohio to obtain more

methamphetamine from Newton. To further support Spicer’s engagement in

Court of Appeals of Indiana | Memorandum Decision 15A04-1504-CR-148 | November 13, 2015 Page 3 of 9 drug activity, the State relied on the testimony of Dionne House (House).

According to House, Spicer introduced her to drugs, and to sustain her drug

habit, she would obtain boxes of pseudoephedrine for Sam. After Sam’s arrest,

House moved to another supplier in Kentucky—Spicer’s cousins. House

indicated that Spicer was angry at her for not going through him to obtain the

methamphetamine from Kentucky.

[9] On April 4, 2014, the State filed an Information, charging Spicer with

conspiracy to commit dealing in methamphetamine, a Class A felony. On

April 8, 2014, Spicer’s probation officer filed a second request for a probation

violation hearing in which he purported that Spicer had committed a new

offense. At the time of Spicer’s revocation hearing, both Ellis and House had

pled guilty to conspiracy to commit dealing in methamphetamine and each had

received twenty-year sentences with ten years suspended to probation. As part

of their plea agreements, Ellis and House were required to testify at Spicer’s

revocation of probation hearing. Following an evidentiary hearing on

November 24, 2014, the trial court found that Spicer had violated the terms of

his probation by committing a new offense. Accordingly, the trial court

revoked his probation and ordered him to serve his previously suspended

twelve-year sentence in the Department of Correction.

[10] Spicer now appeals. Additional facts will be provided as necessary.

Court of Appeals of Indiana | Memorandum Decision 15A04-1504-CR-148 | November 13, 2015 Page 4 of 9 DISCUSSION AND DECISION

I. Sufficiency of the Evidence

[11] Spicer first contends that there was insufficient evidence to revoke his

probation. Specifically, he contends that the State failed to show by a

preponderance of the evidence that he was involved in drug dealing. A

probation revocation proceeding is in the nature of a civil proceeding, and,

therefore, the alleged violation need be established only by a preponderance of

the evidence. Jenkins v. State, 956 N.E.2d 146, 148 (Ind. Ct. App. 2011), trans.

denied. Violation of a single condition is sufficient to revoke probation. Id. As

with other sufficiency issues, we do not reweigh the evidence or judge the

credibility of witnesses. Id. We look only to the evidence which supports the

judgment and any reasonable inferences flowing therefrom. Id. If there is

substantial evidence of probative value to support the trial court’s decision that

the probationer committed a violation, revocation of probation is appropriate.

Id.

[12] As a condition of his probation Spicer was ordered not to commit a new

offense. On April 4, 2014, Spicer was charged with conspiracy to commit

dealing in methamphetamine. Indiana Code section 35-48-4-1.1(a) (2014)

provides that a person who knowingly or intentionally (1) manufactures; (2)

finances the manufacture of; (3) delivers; or (4) finances the delivery of

methamphetamine commits dealing in methamphetamine. “Manufacture” is

defined, in part, as “the production, preparation, propagation, compounding,

conversion, or processing of a controlled substance . . . ” or “the organizing or

Court of Appeals of Indiana | Memorandum Decision 15A04-1504-CR-148 | November 13, 2015 Page 5 of 9 supervising of” the production, preparation, propagation, compounding,

conversion, or processing of a controlled substance. I.C. § 35-48-1-18 (2014).

[13] Indiana Code section 35-41-5-2(a) 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.” The three elements needed to prove conspiracy are: (1)

the defendant intended to commit the felony; (2) the defendant agreed with

another person to commit the felony; and (3) either the defendant or the other

person performed an overt act in furtherance of the conspiracy. I.C. § 35-41-5-

2.

[14] Spicer maintains that the State did not have direct evidence associating him to

the crime, and only used secondary testimony from Ellis and House to prove its

case. Spicer further claims that the most crucial evidence came from Ellis and

that House provided insignificant evidence of a supposed reaction that Spicer

was annoyed at her for obtaining the methamphetamine from Kentucky.

[15] During the drug investigations, the police subpoenaed Ellis’ and Newton’s cell

phone records which were presented at Spicer’s evidentiary hearing. Ellis first

indicated that she and Sam shared a cellphone. She further interpreted some of

the text messages that she had sent on February 7 through February 9, 2014, to

Newton and Spicer. Specifically, Ellis stated that her text message to Newton

on February 7, 2014 stating, “Sammy’s brother is coming to get me to go get

him out so he will be probably bewanting (sic) to get a hold of you befor (sic)

we go home,” was in reference to Spicer “get[ting] some dope” from Newton.

Court of Appeals of Indiana | Memorandum Decision 15A04-1504-CR-148 | November 13, 2015 Page 6 of 9 (State’s Exh. 2, Transcript p. 19). Also, Ellis testified that her text to Newton

on February 8, 2014, stating; “we got 4 and [Spicer] wants to know if it . . .

always weighs . . . I told him he was being stupid about it” was in reference to

the four boxes of pseudoephedrine that Spicer had provided to Newton, and

Spicer’s desire to make sure that he was not being shorted by Newton. (Tr. p.

23). In addition, Ellis testified that Spicer informed her that he had gotten the

four boxes of pseudoephedrine from his cousins in Kentucky.

[16] In his appellate brief, Spicer now points us to only three texts which he believes

implicated him in drug dealing:

. . . [Spicer] wanted to see what you would give us for 70 bucks.

We got 4 and [Spicer] wants to know if it . . . weigh (sic). I told him itsalways (sic) good and it always weighs (sic) but he is being stupid about it.

[Spicer] wanted me to ask you if you will do the same for him as you do (sic) Sammy ifso (sic) we come see you.

(Appellant’s Br. p. 9). Spicer contends that the trial court erred in relying on

Ellis’ testimony interpreting these text messages for two reasons. First, without

Ellis’ explanation of the context of the text messages, it would not imply drug

activity. Secondly, Spicer asserts that the “texts appear to be speaking of future

planned drug activity, not events which have already occurred.” (Appellant’s

Br. p. 10). We note that though the above texts were admitted into evidence,

Ellis did not testify to the context of the first and third text messages as Spicer

suggests, but only to the second text. According to Ellis, the second text, “[w]e

Court of Appeals of Indiana | Memorandum Decision 15A04-1504-CR-148 | November 13, 2015 Page 7 of 9 got 4,” was in reference to the fact that Spicer had procured four boxes of

pseudoephedrine in exchange for methamphetamine. (State’s Exh. 2).

[17] Spicer also attempts to cast doubt on Ellis’ testimony that she did not initially

report Spicer’s involvement in drug dealing. The record reveals that on

February 13, 2014, the police arrived at Ellis’ and Sam’s home due to a

domestic disturbance. Ellis was not arrested on that occasion and did not

mention Spicer in any drug activity. However, on March 26, 2014, Ellis gave a

sworn statement to the police incriminating Spicer in the exchange of

pseudoephedrine for methamphetamine. As noted in the preceding paragraphs,

“[a]s with other sufficiency issues, we do not reweigh the evidence or judge the

credibility of witnesses.” Jenkins, 956 N.E.2d at 148. Spicer’s arguments to the

contrary is an invitation for us to reweigh the evidence.

[18] Under these facts and circumstances, we conclude that the State established by

a preponderance of the evidence that Spicer violated the terms of his probation

by committing a new offense.

II. Revocation of Probation

[19] Finally, Spicer claims that the trial court abused its discretion by ordering him

to serve the balance of his previously suspended twelve-year sentence. It is well

established that probation is a favor granted by the State and is not a right to

which a criminal defendant is entitled. Sparks v. State, 983 N.E.2d 221, 224

(Ind. Ct. App. 2013). The decision to revoke probation lies within the sound

discretion of the trial court. Id. Thus, a trial court’s decision to revoke

Court of Appeals of Indiana | Memorandum Decision 15A04-1504-CR-148 | November 13, 2015 Page 8 of 9 probation and its subsequent sentencing decision are reviewed for an abuse of

discretion. Id.

[20] Once a trial court has concluded that probation has been violated, it may

continue the defendant on probation, extend the probationary period for not

more than one year beyond the original period, or order all or part of the

previously-suspended sentence to be executed. Ind. Code § 35-38-2-3 (2014).

[21] Here, we find that the trial court was well within its discretion to revoke

Spicer’s probation. After Spicer’s first probation violation, the trial court

revoked only 90 days of his sentence. Despite the trial court’s leniency, Spicer

violated his probation again by committing a second crime in 2014. The

foregoing facts demonstrate Spicer’s disregard for court orders and the

probation system. As such, we conclude that the trial court was within its

discretion in determining that Spicer was not a good candidate for probation

and revoking his suspended twelve-year sentence in the entirety. Accordingly,

we affirm the trial court’s order revoking Spicer’s probation.

CONCLUSION

[22] Based on the above, we conclude that there was sufficient evidence to support

the revocation, and the trial court did not abuse its discretion in revoking

Spicer’s previously suspended twelve-year sentence.

[23] Affirmed.

[24] Brown, J. & Altice, J. concur

Court of Appeals of Indiana | Memorandum Decision 15A04-1504-CR-148 | November 13, 2015 Page 9 of 9