Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                              Apr 09 2013, 9:23 am
any 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:

DONALD R. SHULER                                    GREGORY F. ZOELLER
Barkes, Kolbus, Rife & Shuler, LLP                  Attorney General of Indiana
Goshen, Indiana
                                                    RYAN D. JOHANNINGSMEIER
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JORGE L. GONZALEZ,                                  )
                                                    )
       Appellant-Defendant,                         )
                                                    )
           vs.                                      )      No. 20A05-1206-CR-335
STATE OF INDIANA,                                   )
                                                    )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE ELKHART CIRCUIT COURT
                           The Honorable Terry C. Shewmaker
                             Cause No. 20C01-1108-FA-17


                                          April 9, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
          Jorge L. Gonzalez appeals one of his three convictions of Class A felony dealing in

cocaine1 and the fifty-year sentence imposed therefor. Because sufficient evidence supported

the conviction and because Gonzalez did not demonstrate that sentence is inappropriate, we

affirm.

                             FACTS AND PROCEDURAL HISTORY

          On October 27, 2010, and December 9, 2010, an undercover agent saw Gonzalez sell

more than three grams of cocaine as part of a controlled buy. On both occasions, the buyer

was an informant who had known Gonzalez for two years prior to the transactions.

          On April 24, 2011, Gonzalez agreed to sell more cocaine to the informant, but he told

the informant he was not available to meet, so his uncle would handle the transaction. The

informant obtained the cocaine from Gonzalez’s uncle. The informant did not, however, pay

the full price for the cocaine when it was delivered, so the informant and the undercover

agent met Gonzalez a few days later to pay the balance.

          Based thereon, Gonzalez was convicted of three counts of Class A felony dealing in

cocaine. The trial court imposed the maximum sentence of fifty years for each count and

ordered the sentences served concurrently.

                                DISCUSSION AND DECISION

          1.      Sufficiency of the Evidence

          When reviewing sufficiency of the evidence to support a conviction, we consider only

the probative evidence and reasonable inferences supporting the trial court’s decision. Drane


1
    Ind. Code § 35-48-4-1.
                                                2
v. State, 867 N.E.2d 144, 146 (Ind. 2007). We affirm the judgment unless no reasonable trier

of fact could find the elements of the crime proven beyond a reasonable doubt. Id. Evidence

need not overcome every reasonable hypothesis of innocence and is sufficient if reasonable

inferences may be drawn from it to support the conviction. Id. at 147. We do not reweigh

the evidence or judge the credibility of witnesses. Id. at 146.

       Gonzalez contests his conviction of the third count, which was premised on the April

24 transaction. The elements of Class A felony dealing in cocaine are met when the accused

knowingly or intentionally delivers three grams or more of cocaine. Ind. Code § 35-48-4-1.

A defendant may be convicted based on another’s commission of an offense if the defendant

knowingly or intentionally aided, induced, or caused the other to commit an offense. Ind.

Code § 35-41-2-4.

       Gonzalez argues the evidence is insufficient to support his conviction for two reasons.

First, he contends the undercover agent did not have proof that Gonzalez talked to the

informant to set up the transaction between Gonzalez’s uncle and the informant. Second,

Gonzalez’s involvement in the other two transactions cannot support the inference he was

guilty of the third transaction. See Conklin v. State, 587 N.E.2d 725, 727 (Ind. Ct. App.

1992) (law prohibits fact-finder to infer from the past sale of cocaine that “once a cocaine

dealer, always a cocaine dealer”), summarily aff’d 596 N.E.2d 1369, 1369 (Ind. 1992).

       There is sufficient evidence to permit Gonzalez’s conviction of the third count. The

informant testified Gonzalez told him he could not attend the transaction, so his uncle would

replace him. Because the buyer gave the uncle only a portion of the money for the cocaine,

                                              3
the buyer gave more money directly to Gonzalez two days later, and then the undercover

agent was with the buyer when Gonzalez personally collected the remaining balance yet

another day. Based on this evidence, a trier of fact reasonably could infer that Gonzalez

knowingly or intentionally aided, induced, or caused his uncle to knowingly or intentionally

deliver at least three grams of cocaine on April 24, 2011. See Wallace v. State, 498 N.E.2d

961, 964 (Ind. 1986) (accused’s introduction of undercover agent to drug seller sufficient to

infer accomplice liability).

       2.     Inappropriate Sentencing

       Gonzalez also asserts the sentence for that third conviction is inappropriate in light of

his character and offense. We may revise a sentence if it is inappropriate in light of the

nature of the offense and the character of the offender. Williams v. State, 891 N.E.2d 621,

633 (Ind. Ct. App. 2008) (citing Ind. Appellate Rule 7(B)). We consider not only the

aggravators and mitigators found by the trial court, but also any other facts appearing in the

record. Roney v. State, 872 N.E.2d 192, 206 (Ind. Ct. App. 2007), trans. denied. The

appellant bears the burden of demonstrating his sentence is inappropriate. Childress v. State,

848 N.E.2d 1073, 1080 (Ind. 2006).

       When considering the nature of the offense, the advisory sentence is the starting point

to determine the appropriateness of a sentence. Anglemyer v. State, 868 N.E.2d 482, 494

(Ind. 2007), clarified on reh’g on other grounds 875 N.E.2d 218 (Ind. 2007). The sentencing

range for a Class A felony is twenty to fifty years, and the advisory sentence is thirty years.

Ind. Code § 35-50-2-4. Gonzalez asserts the transaction “contains nothing particularly

                                               4
egregious,” (Br. of Appellant at 18), and the amount of cocaine, which was an element of the

offense, should not impact our evaluation of the nature of the offense. While only three

grams of cocaine is necessary to permit a conviction of a Class A felony, Ind. Code § 35-48-

4-1(b)(1), Gonzalez coordinated the sale of over 500 grams of cocaine on April 24.

Gonzalez involved his uncle in the delivery of the cocaine, collected part of the payment in a

youth activity center where he coaches soccer, and brought his girlfriend and her child to a

meeting to collect the remainder of the payment. All of those facts lead us to believe his

crime is more egregious than the “typical” Class A felony dealing in cocaine conviction.

       As for Gonzalez’s character, one relevant fact is a defendant’s criminal history.

Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The significance of a

criminal history in assessing a defendant’s character varies based on the gravity, nature, and

number of prior offenses in relation to the current offense. Id. Prior to these three

convictions, Gonzalez criminal history consisted of one felony conviction of strangulation

and nearly a dozen misdemeanor convictions for such varied offenses as domestic battery,

driving without a license, public intoxication, resisting law enforcement, criminal conversion

and criminal trespass. Gonzalez committed the dealing offense at issue while on probation

and has had probation revoked more than once. His use of illegal drugs, commission of these

crimes near a youth activity center, and his status as an illegal alien also do not reflect well

on his character.

       Based on these facts, we cannot say the sentence is inappropriate in light of

Gonzalez’s character and the nature of his offense.

                                               5
                                    CONCLUSION

      Sufficient evidence supported Gonzalez’s conviction of the third count of Class A

felony dealing in cocaine, and he did not demonstrate his sentence for that crime was

inappropriate. Accordingly, we affirm.

      Affirmed.

ROBB, C.J., and PYLE, J., concur.




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