Opinion
23A-CR-2627
06-24-2024
Christopher M. Holt, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT R. Patrick Magrath Alcorn Sage Schwartz &Magrath, LLP Madison, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Jennifer Anwarzai Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Dearborn Superior Court The Honorable Jonathan N. Cleary, Judge Trial Court Cause No. 15D01-2012-F4-21
ATTORNEY FOR APPELLANT R. Patrick Magrath Alcorn Sage Schwartz &Magrath, LLP Madison, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Jennifer Anwarzai Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Kenworthy, Judge.
[¶1] Christopher M. Holt appeals his conviction for Level 4 felony dealing in methamphetamine, arguing an undercover police officer's unequivocal identification of Holt was incredibly dubious and therefore insufficient to support the conviction. Holt also contends his ten-year sentence is inappropriate. We affirm.
Ind. Code § 35-48-4-1.1(a)(1) & (c)(1) (2017).
Facts and Procedural History
[¶2] In September 2020, Greendale Police Department Officer Austin Boggs was working undercover with a confidential informant ("CI") to investigate illegal drug dealing in Dearborn County and the surrounding area. Officer Boggs received information that Holt planned to sell drugs to the CI at a gas station in Saint Leon on the evening of September 27. Before going to the sale, Officer Boggs reviewed photographs of Holt from three official forms of identification. A police department dispatcher patted down the CI to ensure she did not have any contraband on her person. Officer Boggs and Officer Scott Schnebelt also searched the CI's car to make sure no drugs were inside it.
[¶3] Around midnight, Officer Boggs drove the CI's car to the meeting spot while the CI sat in the front passenger seat. Officer Boggs parked about twenty feet behind a black hatchback vehicle. Officer Boggs had "very good" visibility due to "sufficient lighting for the area" and the car's headlights. Tr. Vol. 3 at 168. Officer Schnebelt drove separately in a marked police car and parked across the highway. He could not see the transaction but listened in via an open cell phone call with Officer Boggs.
[¶4] Holt got out of the passenger side of the hatchback and approached the front passenger side of the CI's car. Officer Boggs made an audio recording of the interaction between Holt and the CI. On the recording, the CI says, "140, right?" and Holt responds, "Yeah. It's that from now on for you." Ex. at 7. In exchange for $140, Holt then handed the CI a plastic bag containing 2.51 grams of a crystalline substance later identified as methamphetamine. After the buy, Officer Boggs drove with the CI back to the Greendale Police Department and Officer Schnebelt followed.
[¶5] At trial, Officer Boggs identified Holt as the person who sold drugs to the CI on the evening of September 27. Because three years had elapsed since the buy, Officer Boggs also testified about the changes in Holt's appearance:
Q. Can you describe if his appearance has changed at all?
A. Sure. He's gained weight since the last time I've seen him. His facial hair has also grown out slightly.Tr. Vol. 3 at 168. The State also introduced the audio recording of the transaction. The jury found Holt guilty of Level 4 felony dealing in methamphetamine.
[¶6] At sentencing, Officer Boggs testified Holt also sold a crystalline substance believed to be methamphetamine to the CI during controlled buys on September 20 and 26 in Ripley County, acts for which Holt had not been charged. The trial court reviewed Holt's prior criminal history, which included seven misdemeanor convictions. Holt violated probation five times and committed the current offense while on probation. At the time of sentencing, Holt had two pending criminal cases. The State also introduced recordings of Holt's phone calls to his mother while in jail awaiting trial. Before trial, Holt planned to introduce an alibi defense premised on the idea he was living with his mother in Kentucky in September 2020. Ultimately, he did not present it as his subpoenaed witnesses failed to appear at trial. In the calls, Holt encourages his mother to "get your story straight" and assures her she "won't get in trouble." Tr. Vol. 4 at 113. The trial court sentenced Holt to ten years with one year suspended to probation.
Sufficient evidence supports Holt's conviction.
[¶7] Holt argues the State presented insufficient evidence to support his conviction. Specifically, he contends Officer Boggs' testimony identifying Holt as the dealer "was inherently equivocal due to the significant passage of time" between the offense and trial and therefore incredibly dubious. Appellant's Br. at 9.
[¶8] A sufficiency-of-the-evidence claim warrants a "deferential standard of appellate review, in which we 'neither reweigh the evidence nor judge witness credibility[.]'" Owen v. State, 210 N.E.3d 256, 264 (Ind. 2023) (quoting Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018), cert. denied). Instead, we respect the factfinder's exclusive province to weigh conflicting evidence, Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018), and consider only the probative evidence and reasonable inferences that support the judgment of the trier of fact, Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). We will affirm the conviction unless no reasonable factfinder could find the elements of the crime proven beyond a reasonable doubt. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024). It is "not necessary that the evidence 'overcome every reasonable hypothesis of innocence.'" Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016) (quoting Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995)).
[¶9] To convict Holt of Level 4 felony dealing in methamphetamine as charged, the State was required to prove he knowingly or intentionally delivered at least one gram but less than five grams of methamphetamine. I.C. § 35-48-4-1.1(a)(1) &(c)(1). Officer Boggs observed Holt deliver a plastic bag with a crystalline substance to a CI at a gas station in Dearborn County. Subsequent testing showed the bag contained 2.51 grams of methamphetamine. Officer Boggs reviewed three photographs of Holt before the controlled buy. During the deal, the officer had a clear view of Holt due to his proximity to Holt and the direct and ambient lighting.
[¶10] In general, the uncorroborated testimony of a witness can sustain a conviction. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). We may make an exception, however, when that testimony is incredibly dubious. The incredible dubiosity rule allows the reviewing court to impinge upon the factfinder's responsibility to judge the credibility of witnesses when confronted with evidence that is "so unbelievable, incredible, or improbable that no reasonable person could ever reach a guilty verdict based upon that evidence alone." Moore v. State, 27 N.E.3d 749, 751 (Ind. 2015). We apply the rule where there is: "1) a sole testifying witness; 2) testimony that is inherently contradictory, equivocal, or the result of coercion; and 3) a complete absence of circumstantial evidence." Id. at 756. Application of the incredible dubiosity rule is "rare[,] and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it." Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). Although incredible dubiosity "provides a standard that is 'not impossible' to meet, it is a 'difficult standard to meet, [and] one that requires great ambiguity and inconsistency in the evidence.'" Moore, 27 N.E.3d at 756 (quoting Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001)).
[¶11] The incredible dubiosity exception does not apply here. Officer Boggs' trial testimony was not inherently contradictory, equivocal, or the result of coercion. Officer Boggs unequivocally identified Holt as the dealer at trial and at the time of the offense. Contrary to Holt's assertion, the mere passage of time did not render Officer Boggs' testimony "inherently equivocal." Appellant's Br. at 9. Officer Boggs explained how Holt's appearance had changed in three years while also remaining steadfast in his identification. The incredible dubiosity rule is further inapplicable because the State presented circumstantial evidence in the form of an audio recording featuring Holt's voice. Officer Boggs' testimony was not incredibly dubious, and sufficient evidence supports Holt's conviction.
Holt's sentence is not inappropriate.
[¶12] Holt also argues his sentence is inappropriate. The Indiana Constitution authorizes this Court to review and revise a trial court's sentencing decision as provided by rule. Ind. Const. art. 7, § 6. Indiana Appellate Rule 7(B) provides we 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." The principal role of appellate review is to leaven the outliers, not to achieve a perceived correct sentence in each case. Conley v. State, 183 N.E.3d 276, 288 (Ind. 2022). Therefore, "we reserve our 7(B) authority for exceptional cases." Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019) (per curiam).
[¶13] A Level 4 felony conviction carries a sentencing range of two to twelve years, with an advisory sentence of six years. I.C. § 35-50-2-5.5 (2014). The trial court sentenced Holt to ten years with one year suspended to probation, citing Holt's prior criminal history as a substantial aggravating factor. The court also found the two uncharged controlled buys and Holt's comment to the CI during the instant offense that "It's [$140] from now on for you" demonstrated a pattern of criminal conduct, not an isolated event. Ex. at 7.
[¶14] On appeal, Holt asks this Court to revise his sentence to the six-year advisory sentence because neither the nature of his offense nor his character warrants an aggravated sentence. As to the nature of the offense, Holt argues the brief encounter posed "no threat of harm or injury to any person." Appellant's Br. at 11. But drug dealing is not a victimless crime; "distributing or possessing even small amounts of drugs threatens society." State v. Timbs, 169 N.E.3d 361, 373 (Ind. 2021). As to Holt's character, at the time of sentencing, he had seven prior misdemeanor convictions, five probation violations, two pending criminal matters, and committed this offense while on probation. His participation in prior sales and expressed intention to sell again to the CI reveal an ongoing pattern of criminal conduct. And while awaiting trial, Holt made several phone calls to his mother in which he apparently tried to persuade her to present false testimony to establish an alibi defense. His criminal history and dishonesty reflect poorly on his character.
[¶15] When exercising our independent sentencing review authority, the question "is not whether another sentence is more appropriate; rather, the question is whether the sentence imposed is inappropriate." Helsley v. State, 43 N.E.3d 225, 228 (Ind. 2015) (quoting King v. State, 894 N.E.2d 265, 268 (Ind.Ct.App. 2008)) (emphasis omitted). Considering the nature of his offense and character, Holt's sentence is not inappropriate.
Conclusion
[¶16] Sufficient evidence supports Holt's conviction, and his sentence is not inappropriate.
[¶17] Affirmed.
May, J., and Vaidik, J., concur.