Le Gia Hoang v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 18, 2017
• Docket: 22A01-1610-CR-2329
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 18 2017, 9:19 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals and Tax Court 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 Matthew J. McGovern Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana

Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Le Gia Hoang, April 18, 2017 Appellant-Defendant, Court of Appeals Case No. 22A01-1610-CR-2329 v. Appeal from the Floyd Superior Court State of Indiana, The Honorable Maria D. Granger, Appellee-Plaintiff Judge Trial Court Cause No. 22D03-1409-F5-1711

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2329 | April 18, 2017 Page 1 of 12 [1] Le Gia Hoang appeals following his convictions for Level 5 felony dealing in

marijuana and Level 6 felony maintaining a common nuisance. He raises a

number of issues on appeal, which we restate as follows:

1. Did the trial court abuse its discretion by instructing the jury on accomplice liability?

2. Did the State present sufficient evidence to support Hoang’s dealing conviction?

3. Did the trial court abuse its sentencing discretion by considering Hoang’s age to be an aggravating circumstance?

4. Is Hoang’s sentence inappropriate in light of the nature of the offenses and his character?

[2] We affirm.

Facts & Procedural History

[3] On September 26, 2014, law enforcement went to Holland Freight Company in

Jeffersonville to investigate a tip they had received regarding a suspicious

package bound for an address in Louisville. A police canine alerted the officers

to the presence of drugs in the package in question. Officers from three separate

law enforcement agencies then set up surveillance at the freight facility. They

watched as an individual later identified at Lucky Siharath arrived in a white

Chevrolet pickup truck and retrieved the package. Officers followed the truck

as it left the freight facility and travelled to a residence in New Albany.

Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2329 | April 18, 2017 Page 2 of 12 [4] At the residence, the truck backed into an open garage. Two officers then

approached Siharath, showed their badges, and identified themselves as police

officers. At that time, Hoang entered the garage through an interior door

leading into the residence. One of the officers asked Hoang if he could speak to

him, but Hoang quickly went back into the house. Officers attempted to regain

contact with Hoang by knocking on the door and windows, but he did not

come back outside until about ten or fifteen minutes later. Hoang told the

officers that he rented the house and agreed to allow them to check inside.

When officers entered the residence to perform a protective sweep, they

encountered a very strong odor of marijuana and observed a number of items

associated with marijuana processing located in plain view. Officers then

obtained a search warrant for the house and for the package retrieved from the

freight facility.

[5] In the freight package, police found several vacuum-sealed bags containing a

total of over twenty pounds of marijuana hidden among various restaurant

supplies. Inside the residence, police discovered what one officer described as

“a marijuana operation.” Transcript Vol. 2 at 172. In the only bedroom, police

found a vacuum sealer, a handgun, a drug ledger, and clothing consistent with

Hoang’s size, but not Siharath’s. They also found a suitcase with $27,400 in

cash hidden inside the lining. In a bathroom, police found another vacuum

sealer, a digital scale, a jar containing marijuana, two small bags of marijuana,

and a shoebox containing a small amount of marijuana and drug paraphernalia.

Also in the house, the police found fifteen to twenty large plastic buckets that

Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2329 | April 18, 2017 Page 3 of 12 are commonly used to ship marijuana, vacuum-sealed bags that had been cut

open and emptied, and a large plastic bin or cooler with a small amount of

marijuana in the bottom. Officers also located a cashier’s check for $7,200

bearing Hoang’s name as the purchaser, as well as title certificate for the pickup

truck Siharath had been driving, which listed Hoang as the owner of the

vehicle. In the garage, police found a vacuum-sealed bag containing $12,000 in

cash and empty boxes identical to the ones in the freight that Siharath had

picked up that day. Additionally, when Hoang was booked into jail later that

day, jail officers found a number of money orders in Hoang’s pocket or wallet

and hidden in his shoe.

[6] As a result of these events, the State charged Hoang with Level 5 felony dealing

in marijuana and Level 6 felony maintaining a common nuisance. Following a

jury trial, Hoang was found guilty as charged. On September 12, 2016, the trial

court sentenced Hoang to serve an aggregate four-and-a-half-year executed

term. Hoang now appeals.

Discussion & Decision

1. Jury Instruction

[7] Hoang first argues that the trial court abused its discretion when it instructed

the jury on accomplice liability. “Instructing a jury is left to the sound

discretion of the trial court, and we review its decision only for an abuse of

discretion.” Patterson v. State, 11 N.E.3d 1036, 1040 (Ind. Ct. App. 2014). “In

reviewing a trial court's decision to give a tendered jury instruction, we consider

Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2329 | April 18, 2017 Page 4 of 12 (1) whether the instruction correctly states the law, (2) is supported by the

evidence in the record, and (3) is not covered in substance by other

instructions.” Munford v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010).

[8] Hoang argues that the trial court abused its discretion in instructing the jury on

accomplice liability because there was no evidence in the record to support such

an instruction. The accomplice liability statute provides that “[a] person who

knowingly or intentionally aids, induces, or causes another person to commit

an offense commits that offense[.]” Ind. Code § 35-41-2-4. Thus, there is no

distinction under Indiana law between the responsibility of a principal and an

accomplice. Wise v. State, 719 N.E.2d 1192, 1198 (Ind. 1999). Factors

considered by the fact-finder to determine whether a defendant aided another in

the commission of a crime include: “(1) presence at the scene of the crime; (2)

companionship with another engaged in criminal activity; (3) failure to oppose

the crime; and (4) a defendant’s conduct before, during, and after the

occurrence of the crime.” Smith v. State, 809 N.E.2d 938, 944 (Ind. Ct. App.

2004), trans. denied. Although a defendant’s mere presence or lack of opposition

to a crime is insufficient standing alone to establish accomplice liability, they

may be considered along with the other factors to determine participation. Id.

“If there is some evidence that a second party was involved in the crime, an

instruction on accomplice liability is proper.” Wise, 719 N.E.2d at 1198.

[9] Hoang’s argument essentially asks us to view each piece of evidence in

isolation, which we will not do. When taken together, the evidence in this case

was more than sufficient to support an instruction on accomplice liability.

Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2329 | April 18, 2017 Page 5 of 12 Siharith used a pickup truck belonging to Hoang to pick up a package

containing over twenty pounds of vacuum-sealed marijuana. Siharath then

delivered the package to a residence that Hoang admitted he was renting.

When Siharath arrived with the package, the garage door was open and Hoang

came outside to meet him. When officers approached him, Hoang quickly

went back inside and did not come out for ten to fifteen minutes, even though

officers were knocking on the doors and windows. The inside of the residence

smelled strongly of marijuana and was littered with items associated with

dealing in marijuana, including two vacuum sealers, a drug ledger, a digital

scale, numerous plastic buckets that are commonly used to ship marijuana,

vacuum-sealed bags that had been cut open and emptied, a large plastic bin or

cooler with a small amount of marijuana in the bottom, and a handgun. Police

also found almost $40,000 in cash, $12,000 of which was in a vacuum-sealed

bag, which officers testified is typically done by drug traffickers in an attempt to

mask the scent of the currency. Police also found drug paraphernalia, two

small bags of marijuana, a jar of marijuana, and documents bearing Hoang’s

name, including a cashier’s check for $7,200. Furthermore, when Hoang was

booked into jail, he had a number of money orders hidden on his person. This

evidence permits a reasonable inference that Hoang was Siharath’s accomplice

in carrying out a marijuana dealing operation at the residence. Accordingly, an

instruction on accomplice liability was clearly warranted.

2. Sufficiency of the Evidence

Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2329 | April 18, 2017 Page 6 of 12 [10] Hoang also argues that the State presented insufficient evidence to support his

conviction for dealing in marijuana. 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

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).

[11] In order to support Hoang’s dealing conviction, the State was required to prove

that Hoang—as either a principal or an accomplice—knowingly or intentionally

possessed at least ten pounds of marijuana with intent to deliver. See Ind. Code

§ 35-48-4-10. Hoang’s arguments on appeal are nothing more than requests to

reweigh the evidence, which we will not do. The evidence summarized above

is more than sufficient to support Hoang’s conviction for dealing in marijuana

as either a principal or an accomplice.

3. Age as a Sentencing Aggravator

Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2329 | April 18, 2017 Page 7 of 12 [12] Next, Hoang argues that the trial court abused its discretion by considering his

age to be an aggravating factor. Sentencing decisions rest within the sound

discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),

clarified on reh’g, 875 N.E.2d 218. So long as the sentence is within the statutory

range, it is subject to review only for an abuse of discretion. Id. A trial court

may abuse its sentencing discretion in a number of ways, including entering a

sentencing statement that includes aggravating factors that are improper as a

matter of law. Id. at 490-91. Even if the trial court is found to have abused its

discretion in sentencing the defendant, “the sentence will be upheld if it is

appropriate in accordance with Indiana Appellate Rule 7(B).” Felder v. State,

870 N.E.2d 554, 558 (Ind. Ct. App. 2007) (citing Windhorst v. State, 868 N.E.2d

504, 507 (Ind. 2007)).

[13] Hoang was sixty-seven years old at the time of sentencing. The trial court

mentioned Hoang’s age in both its written and oral sentencing statements. In

its oral sentencing statement, the trial court stated that Hoang’s age indicated

that “there’s not a lot of forming left for [him] to do.” Transcript Vol. 3 at 228.

In its written sentencing order, the trial court indicated that it found Hoang’s

likelihood of reoffending, based upon the fact that previous contacts with law

enforcement for similar conduct have not deterred his criminal involvement, to

be an aggravating circumstance. The court found no mitigating circumstances

and reasoned that Hoang’s “active and continued involvement in the illicit

marijuana trade has occurred in his mature years as an adult, and as the

Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2329 | April 18, 2017 Page 8 of 12 aggravating circumstances outweigh the mitigating circumstances, this Court

shall impose an aggravated sentence.” Appellant’s Appendix Vol. 2 at 196.

[14] Even if we assume that it would have been improper for the trial court to

consider Hoang’s age to be an aggravating factor, the trial court’s references to

Hoang’s age do not indicate that it did so. Rather, they indicate that the trial

court found that Hoang’s actions could not be chalked up to immaturity; in

other words, his age was not a mitigating factor. We therefore cannot conclude

that the trial court abused its discretion by considering an improper aggravating

circumstance. In any event, even if the trial court had abused its discretion in

this or another way, remand for resentencing would not be warranted because,

as we explain below, Hoang’s sentence is not inappropriate.

4. Inappropriate Sentence

[15] Hoang also argues that his four-and-a-half-year executed sentence is

inappropriate in light of the nature of the offense and his character. 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)

Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2329 | April 18, 2017 Page 9 of 12 (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).

Hoang bears the burden on appeal of persuading us that his sentence is

inappropriate. See id.

[16] 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).

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

statutory range established for the classification of the relevant offenses. Hoang

was convicted of Level 5 felony dealing in marijuana and Level 6 felony

maintaining a common nuisance. The sentencing range for a Level 5 felony is

one to six years, with an advisory sentence of three years. I.C. § 35-50-2-6. The

sentencing range for a Level 6 felony is six months to two and a half years, with

an advisory sentence of one year. I.C. § 35-50-2-7. Hoang was sentenced to

four and half years executed for his dealing conviction and one and half years

Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2329 | April 18, 2017 Page 10 of 12 executed for maintaining a common nuisance. The sentences were ordered to

be served concurrently, for an aggregate sentence of four and a half years

executed.

[18] Considering the nature of the offense, we note that the evidence presented at

trial supports a conclusion that Hoang was involved in an ongoing, large-scale

drug operation at the residence he rented. In addition to the over twenty

pounds of marijuana discovered in the package Siharath retrieved from the

freight company, the residence contained numerous items associated with

marijuana trafficking, including a drug ledger, a digital scale, two vacuum

sealers, vacuum-sealed bags that had been cut open and emptied, a large bin or

cooler with a small amount of marijuana in the bottom, numerous plastic

buckets commonly used to ship marijuana, a handgun, and nearly $40,000 in

cash. In short, the nature of the offense in this case supports the sentence

imposed.

[19] Considering the character of the offender, we note that this is not Hoang’s first

marijuana-related conviction. In 2006, Hoang was charged in California with

conspiracy to commit possession of marijuana for sale and ultimately convicted

of a felony possession charge. Additionally, evidence presented at sentencing

established that Hoang had twice had large amounts of cash seized by the

federal Drug Enforcement Agency at the Oakland International Airport after

disembarking flights from Louisville. Specifically, $186,920 was seized in in

March 2013 and $43,950 was seized in November 2015—well after the offenses

at issue in this case. This evidence supports an inference that Hoang has

Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2329 | April 18, 2017 Page 11 of 12 participated in a drug trafficking operation spanning multiple states and has not

been deterred despite repeated contacts with the criminal justice system.

Accordingly, we cannot conclude that his sentence of four and a half years

executed is inappropriate.

[20] Judgment affirmed.

[21] Riley, J. and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2329 | April 18, 2017 Page 12 of 12