MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 22 2017, 6:58 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 Adam C. James Curtis T. Hill, Jr. Shelbyville, Indiana Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Samuel R. White, February 22, 2017 Appellant-Defendant, Court of Appeals Case No. 70A04-1607-CR-1752 v. Appeal from the Rush Superior Court State of Indiana, The Honorable Brian D. Hill, Appellee-Plaintiff. Judge Trial Court Cause No. 70D01-1506-F3-312
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 70A04-1607-CR-1752 | February 22, 2017 Page 1 of 8 Case Summary [1] Samuel White (“White”) appeals his conviction and sentence for Conspiracy to
Commit Dealing in Methamphetamine, a Level 3 felony.1 We affirm.
Issues [2] White presents two issues for review:
I. Whether his conviction is supported by sufficient evidence; and
II. Whether his fifteen-year sentence is inappropriate.
Facts and Procedural History [3] On June 3, 2015, the Rushville Police Department used a confidential
informant, Shawn Williams (“Williams”), to place a series of recorded calls to
White to arrange a purchase of methamphetamine. In the first call, Williams
asked White if he could purchase a quarter-ounce (seven grams) of
methamphetamine. White agreed to sell that amount of methamphetamine for
$450. In the second and third calls, Williams falsely claimed that his car had
broken down. He asked White to bring the methamphetamine to him; White
agreed to do so for a delivery fee of $75. In the fourth call, White and Williams
1 Ind. Code § § 35-48-4-1.1, 35-41-5-2.
Court of Appeals of Indiana | Memorandum Decision 70A04-1607-CR-1752 | February 22, 2017 Page 2 of 8 confirmed that Williams was to purchase a quarter-ounce of methamphetamine
and pay a $75 delivery fee.
[4] Police officers searched Williams, provided him with $525 in cash, and
transported him to a designated meeting location. White drove up in a van; his
mother, Laura White (“Laura”), was sitting in the passenger’s seat. Williams
briefly entered White’s van. When he returned to the unmarked police vehicle,
Williams produced a substance later tested and identified as 1.36 grams of
methamphetamine. Williams was again searched, and found to be without
cash or additional methamphetamine.
[5] Police officers stopped White’s van and arrested White and Laura. During a
search at the jail, $525 in cash was found in Laura’s bra. In a police interview,
White claimed to have thrown the buy money out the window. He also
claimed that an unidentified female who “sells ounces” was his source. (Tr. at
39.)
[6] White was charged with, and convicted of, three counts related to that
transaction. Because of double jeopardy concerns, the trial court vacated the
judgment entered upon two of White’s convictions and sentenced him only
upon the conviction for Conspiracy to Commit Dealing in Methamphetamine.
This appeal ensued.
Court of Appeals of Indiana | Memorandum Decision 70A04-1607-CR-1752 | February 22, 2017 Page 3 of 8 Discussion and Decision Sufficiency of the Evidence [7] Dealing in Methamphetamine is committed when a person knowingly or
intentionally manufactures, finances the manufacture of, delivers, or finances
the delivery of methamphetamine or possesses it with the intent to do the same.
I.C. § 35-48-4-1.1(a)(1). The offense is enhanced to a Level 3 felony if the
amount of the drug involved is at least five but less than ten grams. I.C. § 35-
48-4-1.1(d). Conspiracy to commit a felony has three elements: (1) the intent to
commit a felony, (2) an agreement with another person to commit a felony, and
(3) an overt act performed by either the defendant or the person with whom the
defendant has entered into the agreement. Owens v. State, 929 N.E.2d 754, 756
(Ind. 2010). Thus, the State was required to establish, beyond a reasonable
doubt, that White, with intent to commit dealing in methamphetamine, agreed
with Williams to deliver more than five grams of methamphetamine, and one of
the conspirators performed an overt act in furtherance of the agreement.
[8] When reviewing the sufficiency of the evidence to support a criminal
conviction, we do not reweigh the evidence or judge witness credibility.
McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). Considering only the
evidence supporting the verdict and any reasonable inferences to be drawn
therefrom, we will affirm if there is substantial evidence of probative value such
that a reasonable trier of fact could have concluded the defendant was guilty
beyond a reasonable doubt. Id.
Court of Appeals of Indiana | Memorandum Decision 70A04-1607-CR-1752 | February 22, 2017 Page 4 of 8 [9] Here, the State presented evidence that Williams and White participated in four
telephone calls arranging a methamphetamine sale. The terms agreed upon
were that White was to sell one-quarter ounce of methamphetamine to
Williams for $475. White was to deliver the drug to Williams for an additional
$75. Law enforcement officers searched Williams, provided him with
previously-photocopied cash, and transported him to a meeting place. Williams
briefly entered White’s vehicle and returned with methamphetamine. The cash
was found on White’s mother, who had been inside his vehicle at the exchange.
[10] However, White claims that the evidence is insufficient to support his
conviction because “the confidential informant had personal motivation,
namely a financial incentive” and “he lied to White to get him to travel to Rush
County.” Appellant’s Br. at 7. White points to Williams’s admissions that he
needed money to pay his bills and had lied to a man that he considered a friend.
White also observes that Williams did not actually fulfill an agreement to
deliver a quarter-ounce (seven grams); Indiana State Police Laboratory testing
indicated that the methamphetamine weighed 1.36 grams.
[11] In essence, White claims that Williams’s testimony should be discarded because
he lacks credibility. However, we do not make credibility determinations.
McHenry, 820 N.E.2d at 126. Moreover, this is not a case in which a single
witness offered uncorroborated testimony, such that the incredible dubiosity
rule might be raised. See Moore v. State, 27 N.E.3d 749, 755 (Ind. 2015)
(observing that the incredible dubiosity rule allows a court to impinge upon the
responsibility of the jury to judge witness credibility only when a sole witness
Court of Appeals of Indiana | Memorandum Decision 70A04-1607-CR-1752 | February 22, 2017 Page 5 of 8 has presented equivocal or coerced testimony and there is a complete lack of
circumstantial evidence of the appellant’s guilt).
[12] As White observes, less than seven grams of methamphetamine was actually
delivered.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 22 2017, 6:58 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 Adam C. James Curtis T. Hill, Jr. Shelbyville, Indiana Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Samuel R. White, February 22, 2017 Appellant-Defendant, Court of Appeals Case No. 70A04-1607-CR-1752 v. Appeal from the Rush Superior Court State of Indiana, The Honorable Brian D. Hill, Appellee-Plaintiff. Judge Trial Court Cause No. 70D01-1506-F3-312
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 70A04-1607-CR-1752 | February 22, 2017 Page 1 of 8 Case Summary [1] Samuel White (“White”) appeals his conviction and sentence for Conspiracy to
Commit Dealing in Methamphetamine, a Level 3 felony.1 We affirm.
Issues [2] White presents two issues for review:
I. Whether his conviction is supported by sufficient evidence; and
II. Whether his fifteen-year sentence is inappropriate.
Facts and Procedural History [3] On June 3, 2015, the Rushville Police Department used a confidential
informant, Shawn Williams (“Williams”), to place a series of recorded calls to
White to arrange a purchase of methamphetamine. In the first call, Williams
asked White if he could purchase a quarter-ounce (seven grams) of
methamphetamine. White agreed to sell that amount of methamphetamine for
$450. In the second and third calls, Williams falsely claimed that his car had
broken down. He asked White to bring the methamphetamine to him; White
agreed to do so for a delivery fee of $75. In the fourth call, White and Williams
1 Ind. Code § § 35-48-4-1.1, 35-41-5-2.
Court of Appeals of Indiana | Memorandum Decision 70A04-1607-CR-1752 | February 22, 2017 Page 2 of 8 confirmed that Williams was to purchase a quarter-ounce of methamphetamine
and pay a $75 delivery fee.
[4] Police officers searched Williams, provided him with $525 in cash, and
transported him to a designated meeting location. White drove up in a van; his
mother, Laura White (“Laura”), was sitting in the passenger’s seat. Williams
briefly entered White’s van. When he returned to the unmarked police vehicle,
Williams produced a substance later tested and identified as 1.36 grams of
methamphetamine. Williams was again searched, and found to be without
cash or additional methamphetamine.
[5] Police officers stopped White’s van and arrested White and Laura. During a
search at the jail, $525 in cash was found in Laura’s bra. In a police interview,
White claimed to have thrown the buy money out the window. He also
claimed that an unidentified female who “sells ounces” was his source. (Tr. at
39.)
[6] White was charged with, and convicted of, three counts related to that
transaction. Because of double jeopardy concerns, the trial court vacated the
judgment entered upon two of White’s convictions and sentenced him only
upon the conviction for Conspiracy to Commit Dealing in Methamphetamine.
This appeal ensued.
Court of Appeals of Indiana | Memorandum Decision 70A04-1607-CR-1752 | February 22, 2017 Page 3 of 8 Discussion and Decision Sufficiency of the Evidence [7] Dealing in Methamphetamine is committed when a person knowingly or
intentionally manufactures, finances the manufacture of, delivers, or finances
the delivery of methamphetamine or possesses it with the intent to do the same.
I.C. § 35-48-4-1.1(a)(1). The offense is enhanced to a Level 3 felony if the
amount of the drug involved is at least five but less than ten grams. I.C. § 35-
48-4-1.1(d). Conspiracy to commit a felony has three elements: (1) the intent to
commit a felony, (2) an agreement with another person to commit a felony, and
(3) an overt act performed by either the defendant or the person with whom the
defendant has entered into the agreement. Owens v. State, 929 N.E.2d 754, 756
(Ind. 2010). Thus, the State was required to establish, beyond a reasonable
doubt, that White, with intent to commit dealing in methamphetamine, agreed
with Williams to deliver more than five grams of methamphetamine, and one of
the conspirators performed an overt act in furtherance of the agreement.
[8] When reviewing the sufficiency of the evidence to support a criminal
conviction, we do not reweigh the evidence or judge witness credibility.
McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). Considering only the
evidence supporting the verdict and any reasonable inferences to be drawn
therefrom, we will affirm if there is substantial evidence of probative value such
that a reasonable trier of fact could have concluded the defendant was guilty
beyond a reasonable doubt. Id.
Court of Appeals of Indiana | Memorandum Decision 70A04-1607-CR-1752 | February 22, 2017 Page 4 of 8 [9] Here, the State presented evidence that Williams and White participated in four
telephone calls arranging a methamphetamine sale. The terms agreed upon
were that White was to sell one-quarter ounce of methamphetamine to
Williams for $475. White was to deliver the drug to Williams for an additional
$75. Law enforcement officers searched Williams, provided him with
previously-photocopied cash, and transported him to a meeting place. Williams
briefly entered White’s vehicle and returned with methamphetamine. The cash
was found on White’s mother, who had been inside his vehicle at the exchange.
[10] However, White claims that the evidence is insufficient to support his
conviction because “the confidential informant had personal motivation,
namely a financial incentive” and “he lied to White to get him to travel to Rush
County.” Appellant’s Br. at 7. White points to Williams’s admissions that he
needed money to pay his bills and had lied to a man that he considered a friend.
White also observes that Williams did not actually fulfill an agreement to
deliver a quarter-ounce (seven grams); Indiana State Police Laboratory testing
indicated that the methamphetamine weighed 1.36 grams.
[11] In essence, White claims that Williams’s testimony should be discarded because
he lacks credibility. However, we do not make credibility determinations.
McHenry, 820 N.E.2d at 126. Moreover, this is not a case in which a single
witness offered uncorroborated testimony, such that the incredible dubiosity
rule might be raised. See Moore v. State, 27 N.E.3d 749, 755 (Ind. 2015)
(observing that the incredible dubiosity rule allows a court to impinge upon the
responsibility of the jury to judge witness credibility only when a sole witness
Court of Appeals of Indiana | Memorandum Decision 70A04-1607-CR-1752 | February 22, 2017 Page 5 of 8 has presented equivocal or coerced testimony and there is a complete lack of
circumstantial evidence of the appellant’s guilt).
[12] As White observes, less than seven grams of methamphetamine was actually
delivered. However, White was convicted of conspiring to deliver at least five
grams of methamphetamine. The evidence showed that White and Williams
set the terms of sale, that is, $475 for a quarter-ounce of methamphetamine.
White then traveled to Williams’s location and provided a package of
methamphetamine, acts in furtherance of the conspiracy. To establish the
conspiracy, the State was not also required to establish that a particular weight
of drug was in fact delivered. “Well-settled Indiana law provides that the
conspiracy to commit a felony is a distinct offense from the contemplated
felony.” Owens, 929 N.E.2d at 756. A conspiracy is complete upon reaching an
agreement and the performance of an overt act in furtherance of the agreement.
Id. Sufficient evidence supports White’s conviction.
Sentence [13] The sentencing range for a Level 3 felony is 3 years to 16 years, with an
advisory sentence of 9 years. I.C. § 35-50-2-5. White argues that his fifteen-
year sentence is inappropriate, and asks that we revise it, pursuant to Indiana
Appellate Rule 7(B), which states, “The 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.”
Court of Appeals of Indiana | Memorandum Decision 70A04-1607-CR-1752 | February 22, 2017 Page 6 of 8 [14] When reviewing a sentence, our principal role is to leaven the outliers rather
than necessarily achieve what is perceived as the correct result. Cardwell v. State,
895 N.E.2d 1219, 1225 (Ind. 2008). “We do not look to determine if the
sentence was appropriate; instead we look to make sure the sentence was not
inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012).
[15] As for the nature of the offense, we observe that “the advisory sentence is the
starting point the Legislature selected as appropriate for the crime committed.”
Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). White’s sentence is above the
advisory but below the maximum. There is nothing particularly remarkable
about White’s agreement to provide methamphetamine to Williams and his
undertaking of efforts to do so.
[16] As for White’s character, he has three prior felony and five prior misdemeanor
convictions. These include resisting law enforcement, possession of marijuana,
operating a vehicle while intoxicated, child selling, failure to stop after an
accident, possession of a narcotic drug, and dealing in methamphetamine.
When he committed the instant offense, White was on parole for his Class A
felony dealing in methamphetamine conviction. He had also violated
probation in the past. We conclude that White has not demonstrated that his
sentence is inappropriate.
Court of Appeals of Indiana | Memorandum Decision 70A04-1607-CR-1752 | February 22, 2017 Page 7 of 8 Conclusion [17] Sufficient evidence supports White’s conviction. His sentence is not
inappropriate.
[18] Affirmed.
Najam, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 70A04-1607-CR-1752 | February 22, 2017 Page 8 of 8