Opinion
No. 89A01-1011-CR-574
08-03-2011
JOHN G. YOUNG, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT : ADAM G. FORREST Boston Bever Klinge Cross & Chidester Richmond, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana NICOLE M. SCHUSTER Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be 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:
ADAM G. FORREST
Boston Bever Klinge Cross & Chidester
Richmond, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
NICOLE M. SCHUSTER
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE WAYNE SUPERIOR COURT
The Honorable Gregory A. Horn, Judge
Cause No. 89D02-0811-FB-25
BARNES , Judge
Case Summary
John Young appeals his conviction and sentence for Class B felony dealing in a schedule II controlled substance. We affirm.
Issues
The issues before us are:
I. whether the State presented sufficient evidence to support Young's conviction; and
II. whether a thirteen-year sentence is inappropriate given the nature of the offense and Young's character.
Facts
On November 25, 2008, the Wayne County Drug Task Force arrested Young for selling methadone. The officers learned of Young through their confidential informant, Kristin Burnett. Burnett, who had previously been convicted of theft and conversion, volunteered to be a confidential informant after she was found to be in possession of two bags of marijuana.
In a recorded phone call from Burnett to Young, the two agreed to meet in a Meijer parking lot in Richmond. An officer acting as Burnett's father drove her to the meeting place, where she got into Young's truck. The truck circled the parking lot for about five minutes before Burnett was taken back to the officer's vehicle with a Marlboro pack containing 100 methadone pills. She paid Young with five marked $100 bills, provided by an officer, that Young had in his pocket when he was apprehended. Burnett also had a body-cavity strip-search done by a female officer before and after the buy.
Burnett had audio and video equipment on her body recording her surroundings. The video recording was on Burnett the entire time she was away from the officer's vehicle and was in Young's vehicle. It also recorded Young saying to Burnett, "I'll front you another fifty." Tr. p. 279.
The State charged Young with Class B felony dealing in a schedule II controlled substance. A jury trial was held in September 2010, and Young was found guilty. At the sentencing hearing, the trial court sentenced Young to an enhanced sentence of thirteen years. Young now appeals.
Analysis
I. Sufficiency of the Evidence
Young contends the State presented insufficient evidence to support his conviction. In reviewing a sufficiency of the evidence claim, we do not reweigh the evidence nor do we assess the credibility of the witnesses. Treadway v. State, 924 N.E.2d 621, 639 (Ind. 2010). We look to the evidence and reasonable inferences drawn therefrom that support the verdict. Id. We will uphold the conviction if there is probative evidence from which a fact finder could have found the defendant guilty beyond a reasonable doubt. Id. To convict Young of Class B felony dealing in a schedule II controlled substance, the State was required to prove that he knowingly or intentionally delivered methadone. See Ind. Code § 35-48-4-2(a)(1)(C).
Young primarily contends that Burnett was not a credible witness because she has a history of theft and conversion, and was volunteering as a confidential informant to avoid being charged for her possession of marijuana. Specifically, Young argues that Burnett knew him and having previously been in his truck, knew he retained pills in his truck. Young had recently been injured and had been prescribed methadone.
Although Burnett is the only witness to see the exchange of the money and methadone, her testimony corroborates the evidence. Unless a witness offers inherently improbable or wholly uncorroborated testimony of incredible dubiosity, we refrain from encroaching upon the jury's duty to assess the witness's credibility. Appleton v. State, 740 N.E.2d 122, 128 (Ind. 2001). Burnett's testimony is not incredibly dubious.
The evidence supporting Young's conviction shows that Burnett had a body-cavity strip-search before and after the drug buy. She was personally dropped off and picked up by an officer. During the five minutes that it took Burnett to buy the drugs, the video recording reveals that she went nowhere else. Young also had on him the five marked $100 bills the officers gave to Burnett for the drug buy. Burnett had methadone when she returned to the officers. The evidence points to Burnett doing her role as a confidential informant as she was instructed. There is sufficient evidence to support Young's conviction.
II. Sentencing
Young contends his thirteen-year sentence is inappropriate given the nature of the offense, his character, and his medical condition. The merits of a particular sentence are reviewable on appeal for appropriateness under Indiana Appellate Rule 7(B). Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007). Although Rule 7(B) does not require us to be "extremely" deferential to a trial court's sentencing decision, we still must give due consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We also understand and recognize the unique perspective a trial court brings to its sentencing decisions. Id. "Additionally, a defendant bears the burden of persuading the appellate court that his or her sentence is inappropriate." Id.
The principal role of Rule 7(B) review "should be to attempt to leaven the outliers, and identify some guiding principles for trial courts and those charged with improvement of the sentencing statutes, but not to achieve a perceived 'correct' result in each case." Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We "should focus on the forest— the aggregate sentence—rather than the trees—consecutive or concurrent, number of counts, or length of the sentence on any individual count." Id. Whether a sentence is inappropriate ultimately turns on 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. Id. at 1224.
Young contends his sentence above the advisory of ten years for a Class B felony is inappropriate because the drug deal was a typical deal, he is old, he is the only source of income for his wife, he has child support to pay, his criminal record is dated, the number of tablets is not noteworthy, his pattern of criminality came solely from Burnett's testimony, and he needs medical treatment. The law does not excuse a person because of his or her age or medical conditions. There is no indication that Young's wife cannot take care of herself or that there will be hardship due to him not paying child support. Young claims he is paying about $100 a month in child support, but he also owes approximately $14,000 in child support arrearage, which is a significant amount.
Regarding Young's character, Burnett's testimony indicated that Young had been selling drugs for some time. Although that earlier misconduct was never charged, a trial court may consider uncharged misconduct to enhance a sentence. See Roney v. State, 872 N.E.2d 192, 200 (Ind. Ct. App. 2007), trans. denied. Young also has three prior felony convictions, a total of ten criminal convictions, a history of drug and alcohol abuse, and a 1987 probation violation. Our supreme court has held that the significance of the defendant's criminal history in determining a sentence enhancement will vary '"based on the gravity, nature and number of prior offenses as they relate to the current offenses."' Smith v. Sate, 889 N.E.2d 261, 263 (Ind. 2008) (quoting Ruiz v. State, 818 N.E.2d 927, 929 (Ind. 2004)). Young's prior offenses, although dated, show that Young is a repeat offender.
Regarding the nature of the offense, the fact that there were 100 pills delivered in this one particular drug buy is a significant factor to consider. See Storey v. State, 875 N.E.2d 243, 253 (Ind. Ct. App. 2007) (noting that possession of large quantity of drug with intent to deliver was a relevant factor to consider in sentencing), trans. denied. There are also indications in the video recording that Young planned on continuing to deal drugs to Burnett.
The amount of pills, the ongoing uncharged dealing, and Young's criminal history warrant a sentence above the advisory sentence of ten years. Therefore, a thirteen-year sentence is not inappropriate.
To the extent Young argues that the trial court erred in weighing aggravating and mitigating factors, that claim is not subject to appellate review. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007).
Conclusion
There is sufficient evidence for a fact finder to find Young guilty of Class B felony dealing in a schedule II controlled substance, and a thirteen-year sentence is not inappropriate given the nature of the offense and his character. We affirm.
Affirmed. DARDEN, J., concurs. RILEY, J., dissents with separate opinion.
JOHN G. YOUNG, Appellant-Defendant,
vs.
STATE OF INDIANA, Appellee-Plaintiff.
No. 89A01-1011-CR-574
RILEY, Judge, concurring and dissenting with separate opinion.
Although I agree with the majority's decision with respect to Young's sufficiency claim, I respectfully dissent as to the trial court's decision to give Young three years above the advisory sentence. As the majority notes, the significance of a defendant's prior criminal history in determining whether to impose a sentence enhancement will vary "based on the gravity, nature and number of prior offenses as they relate to the current offenses." Smith, 889 N.E.2d 263. Here, the trial court found Young's criminal history as an aggravating circumstance. However, when looking at the evidence, it is clear that Young's criminal history is relatively dated, with the majority of his convictions stemming from the early 1980s and 1990s. Additionally, the crimes consisted primarily of misdemeanors, none of which relate to the present crime. Based on this, and when considering Young's medical condition and financial status as sole support for he and his wife, I conclude that Young should have been given the advisory sentence of ten years.