John W. Schocke v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 1, 2020
• Docket: 19A-CR-2086
• Status: Published

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 01 2020, 11:00 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 APPELLEES Deborah K. Smith Curtis T. Hill, Jr. Sugar Creek Law Attorney General of Indiana Thorntown, Indiana Benjamin J. Shoptaw Deputy Attorney General Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

John W. Schocke, April 1, 2020 Appellant/Defendant, Court of Appeals Case No. 19A-CR-2086 v. Appeal from the Boone Superior Court State of Indiana, The Hon. Bruce E. Petit, Judge Appellee/Plaintiff. Trial Court Cause No. 06D02-1904-F2-847

Bradford, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2086 | April 1, 2020 Page 1 of 11 Case Summary [1] In February of 2019, John Schocke agreed with Casey Jones to travel from

Boone County to Georgia to buy methamphetamine for Schocke to resell in

Indiana. To that end, Schocke, Casey, Kierra McClaine, and Brandy Kirby

drove to Georgia in a car rented by Casey’s wife and returned to Indiana with

the methamphetamine. Although Casey was arrested on an outstanding

warrant soon after the four returned to Indiana, Schocke completed several

sales before McClaine commandeered the rental car at a rest stop and returned

to Lebanon alone, removing the remaining methamphetamine from the rental

car and hiding it in her house. Before Casey’s wife and McClaine could clean

up the rental car, Schocke and Kirby arrived back in Lebanon looking for the

methamphetamine and confronted McClaine at her house. Kirby restrained

McClaine at Schocke’s direction and beat her while the shotgun-wielding

Schocke put the shotgun against McClaine’s head at one point.

[2] Schocke was eventually convicted of Level 2 felony conspiracy to commit

dealing in methamphetamine and Level 3 felony criminal confinement and

found to be a habitual offender. The trial court sentenced Schocke to an

aggregate term of forty years of incarceration. Schocke contends that the State

produced insufficient evidence to sustain his convictions for conspiracy to

commit dealing in methamphetamine and criminal confinement. Because we

disagree, we affirm.

Facts and Procedural History

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2086 | April 1, 2020 Page 2 of 11 [3] By February of 2019, husband and wife Casey and Ashley Jones had become

estranged, Casey had relapsed on methamphetamine, and Casey had begun a

sexual relationship with McClaine. On or around February 16, 2019, Casey

recruited McClaine to accompany him to Georgia to purchase

methamphetamine for resale in Indiana. Before Casey and McClaine left

Boone County, they picked up Kirby and Schocke in a car rented by Ashley.

Casey and Schocke had previously discussed the trip, and they “had an

agreement to go pick up this meth and then to sell it.” Tr. Vol. III p. 32. Casey

planned on giving the methamphetamine to Schocke, who had told Casey he

could resell it in southern Indiana.

[4] Upon arrival in Georgia at approximately 10:00 p.m. the next day, Casey and

Schocke left their hotel room to purchase approximately eighteen ounces of

methamphetamine, returned to the hotel, and put the methamphetamine into a

duffel bag in the trunk of their rental car, whereupon the group set off for

Indiana. Soon after arriving in Jeffersonville on the morning of February 18,

2019, the rental car was stopped by police at a road closure caused by flooding,

and the police determined that Casey had an outstanding warrant. Before being

arrested, Casey told Schocke to take the duffel bag and that “he [knew] what to

do with the rest of the stuff.” Tr. Vol. II p. 170.

[5] On the way back to Boone County, Schocke and Kirby left McClaine at a

shopping mall in Bartholomew County, saying that he had to “run to friends’

houses[.]” Tr. Vol. II p. 170. After picking McClaine up from the mall

approximately two hours later, the three stopped at five more houses; at each

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2086 | April 1, 2020 Page 3 of 11 stop, Schocke retrieved the duffel bag from the trunk, took it into the house, and

returned with it. Each visit took approximately fifteen to thirty minutes.

Although Schocke and Kirby had decided to abandon the rental car in

Southport, McClaine was afraid of going to jail for auto theft, so, when Schocke

and Kirby exited the rental car at a rest stop, McClaine commandeered it and

drove back to Lebanon alone. When McClaine arrived back in Lebanon that

evening, she went to her house, took the duffel bag inside, and hid it. McClaine

drove the rental car to Ashley’s home to return it, and then Ashley drove

McClaine back to her house so that McClaine could change clothes and they

could clean out the rental car.

[6] After being inside for a while, McClaine and Ashley went outside to find Kirby

searching the trunk of the rental car. Kirby charged McClaine and “started

beating [her] a[**].” Tr. Vol. II p. 178. McClaine managed to get away and

make her way inside to a bathroom, and she managed to call 911 before

emerging and walking to the attached garage. As she walked into the garage,

McClaine encountered Kirby and Schocke, who had also arrived and was

armed with a shotgun. Schocke told Kirby, “get her, I’m gonna blow her head

off” and “don’t let her go.” Tr. Vol. II pp. 179, 186. Kirby pulled McClaine

into the garage, grabbed her by the hair, and began beating her again. While

Kirby was restraining McClaine at Schocke’s direction, Schocke drew closer, at

one point holding the shotgun to McClaine’s head. Schocke and Kirby fled

when police arrived. While McClaine was in the garage, she did not think that

she could leave, in part due to the presence of the shotgun.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2086 | April 1, 2020 Page 4 of 11 [7] On April 25, 2019, the State charged Schocke with Level 2 felony conspiracy to

commit dealing in methamphetamine, Level 3 felony conspiracy to commit

possession of methamphetamine, Level 3 felony criminal confinement, and

Level 4 felony unlawful possession of a firearm by a serious violent felon

(“SVF”) and alleged that he was a habitual offender. On June 20, 2019, a jury

found Schocke guilty as charged. On August 13, 2019, the trial court merged

Schocke’s two conspiracy convictions, vacated the SVF conviction, and

sentenced him to an aggregate term of forty years of incarceration.

Discussion and Decision [8] Schocke contends that the State produced insufficient evidence to sustain his

convictions for Level 2 felony conspiracy to commit dealing in

methamphetamine and Level 3 felony criminal confinement. When a

defendant challenges the sufficiency of the evidence used to convict him of a

crime, we consider only the probative evidence and reasonable inferences

arising therefrom supporting the verdict. Drane v. State, 867 N.E.2d 144, 146

(Ind. 2007). We will affirm a conviction unless no reasonable factfinder could

find the elements of the crime proven beyond a reasonable doubt. Young v.

State, 973 N.E.2d 1225, 1226 (Ind. Ct. App. 2012). Put another way, reversal of

a conviction “is appropriate only when a reasonable trier of fact would not be

able to form inferences as to each material element of the offense.” Purvis v.

State, 87 N.E.3d 1119, 1124 (Ind. Ct. App. 2017), aff’d on reh’g, 96 N.E.3d 123

(Ind. Ct. App. 2018). This standard of review does not permit us to reweigh the

evidence or allow us to judge the credibility of the witnesses. McCallister v.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2086 | April 1, 2020 Page 5 of 11 State, 91 N.E.3d 554, 558 (Ind. 2018). In cases where there is conflicting

evidence in the record, we consider the evidence in the light most favorable to

the trial court’s judgment. Drane, 867 N.E.2d at 146.

I. Conspiracy to Commit Dealing in Methamphetamine [9] Indiana Code section 35-41-5-2 provides, in part, as follows:

(a) A person conspires to commit a felony when, with intent to commit the felony, the person agrees with another person to commit the felony. A conspiracy to commit a felony is a felony of the same level as the underlying felony. [….] (b) The state must allege and prove that either the person or the person with whom he or she agreed performed an overt act in furtherance of the agreement. The underlying felony Schocke was convicted of conspiring to commit was

Level 2 dealing in methamphetamine. Pursuant to Indiana Code section 35-48-

4-1.1, a person who knowingly or intentionally delivers or finances the delivery

of, or possesses with intent to deliver or finance the delivery of,

methamphetamine commits dealing in methamphetamine, a Level 2 felony if

the amount involved is at least ten grams. While it is undisputed that the

amount of methamphetamine involved here was greater than ten grams,

Schocke argues that the State failed to establish that he had an agreement with

Casey to deal methamphetamine or that he participated in an overt act in

furtherance of such an agreement.

[10] As for the existence of an agreement, Casey explicitly testified that he had

agreed ahead of time with Schocke that he was going to give the

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2086 | April 1, 2020 Page 6 of 11 methamphetamine acquired on the trip to Georgia to Schocke for resale

because Schocke had told him that he could resell it in southern Indiana.

Moreover, when Casey was arrested in Jeffersonville, the State produced

testimony from McClaine that Casey told Schocke to take the duffel bag and

that he knew what to do with the “rest of the stuff.” Tr. Vol. II p. 170. The

evidence regarding Schocke’s actions afterwards is also entirely consistent with

the existence of a prior agreement, as McClaine testified that Schocke

proceeded to stop at several houses in southern Indiana, taking the duffel bag

into each and then returning. Schocke’s argument is essentially that Casey

should not have been believed by the jury, as it was in his interest to deflect

blame to Schocke. Not only does this argument ignore McClaine’s testimony

regarding the exchange before Casey’s arrest, it amounts to nothing more than

an invitation to reweigh the evidence, which we will not do. McCallister, 91

N.E.3d at 558.

[11] The record also contains ample evidence of overt actions taken by Schocke in

furtherance of the conspiracy. The record contains evidence that Schocke

travelled with Casey to Georgia, went with him to acquire the

methamphetamine, and then actually dealt methamphetamine to several

customers upon his return to Indiana. Any of these acts easily satisfy the

statutory requirement of proof that an overt act was taken in furtherance of the

conspiracy. Again, Schocke is asking us to reweigh the evidence, which we will

not do. Id.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2086 | April 1, 2020 Page 7 of 11 [12] Schocke draws our attention to Washington v. State, 807 N.E.2d 793 (Ind. Ct.

App. 2004), a case in which we reversed a conviction for conspiracy to commit

Class A felony dealing in cocaine. Id. at 797. Washington, however, does not

help Schocke. In that case, the issue was whether Washington had specifically

agreed to deal over three grams of cocaine (an amount required to support his

Class A felony conviction), and we concluded that the record only supported

the conclusion that he had agreed to deal 0.66 grams. Id. Here, the amount of

methamphetamine involved is not disputed (at approximately eighteen ounces),

and, as mentioned, Schocke disputes only the existence of an agreement or an

overt act, items that were not at issue in Washington. Washington simply does

not apply here.

[13] Schocke also cites to Kats v. State, 559 N.E.2d 348 (Ind. Ct. App. 1990), trans.

denied, for the proposition that mere association with Casey is insufficient to

establish a conspiracy. Id. at 352. While this is true, there is, as mentioned,

ample evidence in the record beyond Schocke’s mere presence to establish that

he and Casey had an agreement to deal methamphetamine.

[14] Finally, Schocke argues that there is no evidence that he ever actually possessed

or dealt methamphetamine in Boone County. Even if this is true, it does not

help him, as he does not claim that the agreement was not formed in Boone

County. “In a prosecution for conspiracy to commit a felony, any or all

offenders may be tried in the county in which […] the agreement was made[] or

[…] any overt act in furtherance of the agreement is performed.” Ind. Code §

35-32-2-4(b) (emphasis added). In any event, to the extent that Schocke’s claim

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2086 | April 1, 2020 Page 8 of 11 is a challenge to venue, he failed to raise it below and has therefore waived it for

appellate consideration. See, e.g., Reynolds v. State, 254 Ind. 478, 481, 260

N.E.2d 793, 795 (1970) (“It is well settled that the question as to which of two

courts of general jurisdiction should try a crime does not involve the jurisdiction

of the subject matter, but only the place of trial. It is a question of venue and it

may be waived by the defendant.”). Schocke has failed to establish that the

State produced insufficient evidence to sustain his conviction for Level 2 felony

conspiracy to commit dealing in methamphetamine.

II. Criminal Confinement [15] Schocke also contends that the State failed to produce evidence sufficient to

sustain his conviction for Level 3 felony criminal confinement. Indiana Code

section 35-42-3-3 provides, in part, that “[a] person who knowingly or

intentionally confines another person without the other person’s consent

commits criminal confinement[,] a Level 3 felony if it […] is committed while

armed with a deadly weapon[.]” “The offense of confinement requires proof of

a substantial interference with a person’s liberty without the person’s consent.”

Cunningham v. State, 870 N.E.2d 552, 553 (Ind. Ct. App. 2007) (citation

omitted).

[16] Schocke’s argument is essentially that the evidence establishes, at most, that

Kirby confined McClaine because (1) she was the one physically restraining her

and (2) there is conflicting evidence regarding whether Schocke pointed the

shotgun at McClaine’s head. We find this argument unpersuasive. First,

McClaine testified that Kirby restrained her at Schocke’s direction. Even if we

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2086 | April 1, 2020 Page 9 of 11 assume that this direction was Schocke’s only involvement, it is still sufficient to

sustain his conviction:

It is well established that a person can be charged as a principal and convicted as an accomplice. The accomplice liability statute does not set forth a separate crime, but merely provides a separate basis of liability for the crime that is charged. The individual who aids another person in committing a crime is as guilty as the actual perpetrator. In other words, a defendant may be convicted as a principal upon evidence that he aided or abetted in the perpetration of the charged crime. The accomplice need not participate in each and every element of the crime in order to be convicted of it. Specht v. State, 838 N.E.2d 1081, 1092–93 (Ind. Ct. App. 2005) (cleaned up),

trans. denied.

[17] As for Schocke’s observation that there is conflicting evidence that he actually

held the shotgun to McClaine’s head, he offers no authority for the proposition

that a firearm must be held to a victim’s head, or even pointed at the victim, in

order for a criminal confinement to occur, and, indeed, the relevant statute only

requires that the defendant be “armed with a deadly weapon[.]” Ind. Code §

35-42-3-3. In any event, McClaine specifically testified that Schocke held the

shotgun to her head, so again Schocke is asking us to reweigh the evidence,

which we will not do. McCallister, 91 N.E.3d at 558.

[18] Schocke relies on Cunningham, 870 N.E.2d at 552, in which we reversed

Cunningham’s conviction for criminal confinement because the victim did not

testify that she had felt confined during a battery and there was no direct

evidence of confinement beyond a battering. Id. at 554. However, Schocke’s

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2086 | April 1, 2020 Page 10 of 11 reliance on Cunningham is unavailing because it is readily distinguishable from

this case on the facts. Here, McClaine specifically testified that she felt that she

could not leave the garage, and there is ample evidence that Kirby was

substantially interfering with McClaine’s liberty beyond battering her by

physically restraining her and that Schocke was doing so by threatening her

with a shotgun. We conclude that the State produced sufficient evidence to

sustain Schocke’s conviction for Level 3 felony criminal confinement.

[19] We affirm the judgment of the trial court.

Baker, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2086 | April 1, 2020 Page 11 of 11