                                                                            FILED
                                                                        Feb 21 2020, 7:50 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Bruce W. Graham                                            Curtis T. Hill, Jr.
Lafayette, Indiana                                         Attorney General of Indiana
                                                           Samuel J. Dayton
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jarmone Davis,                                             February 21, 2020
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           19A-CR-1925
        v.                                                 Appeal from the Tippecanoe
                                                           Superior Court
State of Indiana,                                          The Honorable Steven P. Meyer,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           79D02-1712-F2-28



Riley, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-1925 | February 21, 2020                           Page 1 of 24
                                 STATEMENT OF THE CASE
[1]   Appellant-Defendant, Jermone Davis (Davis), appeals his conviction and

      sentence for one Count of corrupt business influence, a Level 5 felony, Ind.

      Code § 35-45-6-2(1); one Count of conspiracy to commit dealing in a narcotic

      drug of 10 grams or more, a Level 2 felony, I.C. §§ 35-41-5-2; -48-4-1(e)(1); and

      one Count of conspiracy to commit dealing in methamphetamine of at least 10

      grams or more, a Level 2 felony, I.C. §§ 35-41-5-2; -48-4-1.1(e)(1).


[2]   We affirm in part, reverse in part, and remand with instructions.


                                                    ISSUES
[3]   Davis raises three issues on appeal, which we restate as the following:


          (1) Whether the State presented sufficient evidence beyond a reasonable

              doubt to convict Davis of his conspiracy convictions for dealing in a

              narcotic drug and dealing in methamphetamine;


          (2) Whether Davis’ conspiracy convictions violated Indiana’s double

              jeopardy principles under the actual evidence test; and


          (3) Whether the trial court abused its discretion at sentencing.


                       FACTS AND PROCEDURAL HISTORY
[4]   On July 6, 2015, Lafayette Police Department Lieutenant Nicholas Amor

      (Lieutenant Amor) set up a controlled buy of narcotic drugs with the assistance

      of an undercover officer, Sergeant Randy Sherer (Sergeant Sherer), and an


      Court of Appeals of Indiana | Opinion 19A-CR-1925 | February 21, 2020     Page 2 of 24
      unwitting informant 1, Harley VanHorn (VanHorn). After Sergeant Sherer

      picked up VanHorn, Lieutenant Amor followed them both to an area near

      McCarty Lane and Creasy Lane in Lafayette. Sergeant Sherer provided

      VanHorn with $100 of marked money, and VanHorn exited the police vehicle

      and walked through a grassy field. Sergeant Sherer subsequently observed a

      man, who was wearing red pants and a white shirt and later identified as Davis,

      approach and speak with VanHorn. Sergeant Sherer noticed VanHorn and

      Davis “do a hand-to-hand exchange.” (Transcript Vol. II, p. 201). When

      VanHorn returned to Sergeant Sherer’s vehicle, he handed Sergeant Sherer a

      small baggie containing a white substance, which was later established to be

      heroin. Later that day, Lieutenant Amor organized another controlled

      purchase of heroin. Sergeant Sherer was to pick up another unwitting

      confidential informant, Aldo Garcia (Garcia), and drive him to an apartment

      located at 3817 Sickle Court in Lafayette, which was approximately 100 meters

      from the location of the first controlled purchase. After Garcia was provided

      with police buy money, Sergeant Sherer saw Davis and Garcia conduct a

      “hand-to-hand transaction.” (Tr. Vol. II, p. 206). When Garcia returned to

      Sergeant Sherer’s car, he submitted the heroin he had purchased from Davis.


[5]   On July 12, 2015, Lieutenant Amor organized another controlled purchase of

      heroin with the assistance of Sergeant Sherer and another unwitting informant,



      1
       Sergeant Sherer testified that an unwitting informant is also usually a suspect and who is not aware of his
      active role in the controlled buy. In this case, VanHorn was not aware that Sergeant Sherer was an
      undercover officer or that he was engaged in a controlled buy.

      Court of Appeals of Indiana | Opinion 19A-CR-1925 | February 21, 2020                             Page 3 of 24
      Eduardo Tapia (Tapia). Sergeant Sherer picked up Tapia and drove to an

      apartment located on 3817 Sickle Court. Shortly thereafter, a red Pontiac

      Grand Prix, which was being driven by Davis, pulled up into the driveway.

      Sergeant Sherer provided Garcia with $100 of buy money. Both Garcia and

      Davis exited their respective vehicles, and after the two briefly talked, they went

      inside the apartment. Tapia returned to Sergeant Sherer’s car and handed over

      a plastic bag containing a white substance, and it was later confirmed to be

      heroin.


[6]   On July 27, 2015, Sergeant Sherer and Tapia conducted another controlled buy

      that Lieutenant Amor had arranged. After picking up Tapia, Sergeant Sherer

      drove to the 3817 Sickle Court apartment building. Upon arriving, Tapia was

      provided with $150 to buy heroin from Davis. Tapia went inside the

      apartment, and moments later, he returned to Sergeant Sherer’s vehicle. Tapia

      handed Sergeant Sherer a baggie containing a white substance, which was later

      confirmed to be heroin.


[7]   Three days later, on July 30, 2015, Purdue University Police Department

      Detective John Goetz (Detective Goetz) was acting as an undercover officer in

      a controlled buy of heroin orchestrated by Lieutenant Amor. The transaction

      involved Detective Goetz meeting and driving VanHorn to an apartment at

      3817 Sickle Court to purchase additional heroin from Davis. VanHorn was

      supplied with $200 of buy money. When Detective Goetz and VanHorn

      arrived at 3817 Sickle Court, Detective Goetz observed VanHorn greet Davis,

      and watched them go inside the apartment. VanHorn afterwards exited an

      Court of Appeals of Indiana | Opinion 19A-CR-1925 | February 21, 2020    Page 4 of 24
      apartment on 3817 Sickle Court and returned to Detective Goetz’s vehicle and

      provided a baggie containing a white substance that later tested positive for

      heroin. As Detective Goetz drove away from the apartment, Lieutenant

      Timothy Payne (Lieutenant Payne), who was in another vehicle, remained

      behind to conduct surveillance. At separate times, three vehicles drove to the

      apartment, and left within minutes. Lieutenant Payne further observed the red

      Grand Prix reverse into the driveway and Davis exiting the vehicle and

      entering an apartment on 3817 Sickle Court. Lieutenant Payne then observed

      Davis and another man, later identified as Cordarow Davis (Cordarow), exit an

      apartment on 3817 Sickle Court get inside the red Grand Prix, and drive away.


[8]   Later that day, the police initiated two traffic stops of the vehicles that had been

      seen leaving 3817 Sickle Court. First, the police stopped a black Escalade, and

      during the search, the police found $201 in cash, a portion of which was from a

      prior controlled buy from Davis. The police also stopped the red Grand Prix.

      The driver was Davis and the other occupant was Cordarow. After Davis and

      Cordarow were detained, the police searched their persons. The police seized

      $992 from Cordarow and $250 from Davis. Of the money seized from

      Cordarow, $140.00 was from the buy money supplied by VanHorn earlier that

      day.


[9]   Later that day, the police returned to apartment A on 3817 Sickle Court to

      execute a search warrant. Over $7,000 in cash was recovered, and a portion of

      it was from the money issued from the controlled buys organized by Lieutenant

      Amor. Also, the police found a black scale with white residue on it,

      Court of Appeals of Indiana | Opinion 19A-CR-1925 | February 21, 2020      Page 5 of 24
       hydrocodone pills, 14.55 grams of heroin, and a bottle of “Dormin,” a sleeping

       aid, which is used to make “profits larger by cutting [the heroin] down” while

       “still providing a quality product.” (Tr. Vol. III, p. 165). Based on mail and

       other documentation, the police determined that Cordarow and Davis were

       among the people residing in that apartment. The officers also found Indiana

       titles to a red Camaro and a red Pontiac Grand Prix as well as insurance

       records for those vehicles. The Camaro and the Grand Prix were titled and

       insured to a man named Malcom Gore (Gore). The following day, on July 31,

       2015, Detective Goetz and Lieutenant Amor conducted a search of the red

       Camaro after Lieutenant Payne listened to a jail phone call between Davis and

       another person, where Davis stated that he had hidden money in the trunk of

       the Camaro that was parked in a storage facility. Following a search of the

       vehicle, the police seized $20,000 in cash. 2


[10]   In late 2016, the police received information from a confidential informant

       describing Davis and Cordarow as the suppliers of methamphetamine in

       Lafayette. The confidential informant indicated that the two were cousins.

       Between January 2017 and February 2017, the police utilized a confidential

       informant to buy methamphetamine from Davis. During one of the controlled

       buys, Cordarow was present.




       2
         The record shows that on August 5, 2015, the State charged Davis with Level 2 felony conspiracy to
       commit dealing in a narcotic drug, Level 2 felony dealing in a narcotic drug, and Level 3 felony possession of
       a narcotic drug. However, those charges were later dismissed.

       Court of Appeals of Indiana | Opinion 19A-CR-1925 | February 21, 2020                             Page 6 of 24
[11]   On March 8, 2017, the Drug Task Force organized a controlled buy of four

       ounces of methamphetamine worth $2,800 from Davis. Sergeant Bradley

       Curwick (Sergeant Curwick) was provided with marked money, and the

       controlled buy was to take place at the Bay Pointe Apartments in Lafayette.

       Sergeant Sherer, whose role was to conduct surveillance, drove to a neighboring

       apartment complex and parked his car. Sergeant Sherer observed Davis drive a

       silver Pontiac Grand Prix and reverse into a parking spot. Accompanied by an

       informant, Sergeant Curwick walked over to Davis’ silver Pontiac Grand Prix

       and got inside. Sergeant Curwick gave Davis $2,800, and after Davis counted

       the money, he gave Sergeant Curwick a bag containing drugs, which tested

       positive as 115.2 grams of methamphetamine.


[12]   Sometime between March and April 2017, Sergeant Curwick exchanged text

       messages with Davis about buying five ounces of methamphetamine for $4,000.

       On April 25, 2017, Lieutenant Payne was to conduct a surveillance of that

       controlled purchase. Lieutenant Payne observed the same silver Grand Prix

       being driven by Davis on March 8, 2017, pull up in front of the Bay Pointe

       Apartments’ office. An empty-handed Davis and another man exited the silver

       Pontiac Grand Prix and walked into the common area. Lieutenant Payne then

       saw Davis exit the apartment office with a brown Burger King sack, and Davis

       and the other man got inside the silver Grand Prix and drove away.


[13]   Davis then called Sergeant Curwick, who was inside apartment 32 at the Bay

       Pointe Apartments, to confirm his address. Sergeant Curwick opened the door,

       and Davis entered and placed the brown Burger King sack on top of the TV

       Court of Appeals of Indiana | Opinion 19A-CR-1925 | February 21, 2020   Page 7 of 24
       stand. Sergeant Curwick handed $4,000 to Davis, and after confirming the

       amount, Davis pointed at the brown sack and exited the apartment. Forensic

       examination revealed that the bag contained 138.79 grams of

       methamphetamine.


[14]   On January 14, 2018, the police conducted a search of apartment number 112

       at the Bay Pointe Apartments. Only one person, Gore, the man that owned the

       red Grand Prix which Davis had been seen driving in 2015, was inside the

       apartment. The police discovered that Davis and Cordarow also resided in the

       same apartment. During the search, the officers found $11,075 in cash, two

       digital scales, a bag containing 493 grams of methamphetamine, and inside a

       black Lincoln parked outside the apartment that the police had seen Cordarow

       drive during previous drugs sales, there was a kilogram of methamphetamine

       underneath the spare wheel.


[15]   On December 28, 2017, the State filed an Information, charging Davis with

       Level 5 felony corrupt business influence, Level 2 felony conspiracy to commit

       dealing in a narcotic drug, Level 2 felony dealing in a narcotic drug, Level 3

       felony possession of a narcotic drug, Level 2 felony conspiracy to commit

       dealing in methamphetamine, and three Counts of Level 2 felony dealing in

       methamphetamine. On May 7, 2018, the State filed an additional Information,

       charging Davis with Level 2 felony dealing in methamphetamine, Level 3

       felony possession of methamphetamine, and Level 6 felony maintaining a

       common nuisance. On May 3, 2019, the trial court granted the State’s request



       Court of Appeals of Indiana | Opinion 19A-CR-1925 | February 21, 2020    Page 8 of 24
       to dismiss three Counts of Level 2 felony dealing in methamphetamine and one

       Count of Level 2 felony dealing in a narcotic drug.


[16]   A four-day jury trial began on May 14, 2019. At the close of the evidence, the

       jury found Davis guilty of Level 5 felony corrupt business influence, Level 2

       felony conspiracy to commit dealing in a narcotic drug, Level 2 felony dealing

       in a narcotic drug, Level 3 felony possession of a narcotic drug, Level 2 felony

       conspiracy to commit dealing in methamphetamine, and two Counts of Level 2

       felony dealing in methamphetamine. The jury, however, determined that Davis

       was not guilty of one Count of Level 2 felony dealing in methamphetamine,

       one Count of Level 3 felony possession of methamphetamine, and one Count of

       Level 6 felony maintaining a common nuisance.


[17]   On July 26, 2019, the trial court conducted a sentencing hearing. Due to

       double jeopardy concerns, the trial court vacated the following convictions:

       Level 2 felony dealing in a narcotic drug, Level 3 felony possession of a narcotic

       drug, and two Counts of Level 2 felony dealing in methamphetamine. The trial

       court subsequently sentenced Davis to six years for the Level 5 felony corrupt

       business influence conviction, eighteen years for the Level 2 felony conspiracy

       to commit dealing in a narcotic drug conviction, and eighteen years with six

       years suspended for the Level 2 felony conspiracy to commit dealing in

       methamphetamine conviction. The trial court ordered the sentences to run

       consecutively. Davis’ executed sentence is thirty-six years.


[18]   Davis now appeals. Additional information will be provided as necessary.


       Court of Appeals of Indiana | Opinion 19A-CR-1925 | February 21, 2020    Page 9 of 24
                                DISCUSSION AND DECISION
                                         I. Sufficiency of the Evidence

[19]   When reviewing a claim of insufficient evidence, it is well-established that our

       court does not reweigh evidence or assess the credibility of witnesses. Walker v.

       State, 998 N.E.2d 724, 726 (Ind. 2013). Instead, we consider all the evidence,

       and any reasonable inferences that may be drawn therefrom, in a light most

       favorable to the verdict. Id. We will uphold the conviction “‘if there is

       substantial evidence of probative value supporting each element of the crime

       from which a reasonable trier of fact could have found the defendant guilty

       beyond a reasonable doubt.’” Id. (quoting Davis v. State, 813 N.E.2d 1176, 1178

       (Ind. 2004)).


[20]   Indiana Code section 35-48-4-1(a)(2)(C) provides that a person who possesses

       with intent to deliver a narcotic drug, pure or adulterated, classified in Schedule

       I or II commits dealing in a narcotic drug, a Level 5 felony. However, the

       offense is a Level 2 felony if “the amount of the drug involved is at least ten (10)

       grams.” I.C. § 35-48-4-1(e)(1). To convict Davis of Level 2 felony dealing

       methamphetamine as charged, the State was required to prove beyond a

       reasonable doubt that he possessed methamphetamine in an amount of at least

       ten grams with intent to deliver it. I.C. § 35-48-4-1.1(e)(1).


[21]   Davis does not challenge the sufficiency of the evidence with respect to any

       element of his underlying dealing felonies; rather, he challenges the conspiracy

       element as to both offenses. Specifically, he argues that the State failed to prove


       Court of Appeals of Indiana | Opinion 19A-CR-1925 | February 21, 2020    Page 10 of 24
       beyond a reasonable doubt that “there was a separate agreement for delivery of

       methamphetamine, and yet another agreement for delivery of heroin.”

       (Appellant’s Br. p. 17).


[22]   The offense of conspiracy is governed by Indiana Code section 35-41-5-2, which

       provides “[a] person conspires to commit a felony when, with intent to commit

       the felony, he agrees with another person to commit the felony.” “The [S]tate

       must allege and prove that either the person or the person with whom he agreed

       performed an overt act in furtherance of the agreement.” I.C. § 35-41-5-2(b).

       “A conspiracy to commit a felony is a felony of the same level as the underlying

       felony.” I.C. § 35-41-5-2(a). The State is not required to prove the existence of

       a formal express agreement to establish a defendant agreed to deal in cocaine.

       Simmons v. State, 828 N.E.2d 449, 454 (Ind. Ct. App. 2005). The requisite

       agreement can be inferred from circumstantial evidence, including overt acts of

       the parties in furtherance of the criminal act. Wallace v. State, 722 N.E.2d 910,

       913 (Ind. Ct. App. 2000).


[23]   Here, the underlying felonies were dealing in heroin and dealing in

       methamphetamine. Thus, to convict Davis of both conspiracies to deal in

       heroin and methamphetamine, the State needed to prove that Davis intended to

       commit the felonies, agreed with another person to commit the felonies, and

       that Davis, or the person with whom he agreed performed an overt act in

       furtherance of the agreement.




       Court of Appeals of Indiana | Opinion 19A-CR-1925 | February 21, 2020   Page 11 of 24
[24]   For the Level 2 felony conspiracy to commit dealing in a narcotic drug, the

       State charged Davis as follows:


               During the time period from on or about January 1, 2015
               through September, 2017 in Tippecanoe County, State of
               Indiana, Cordarow [], [] Davis, and/or unknown other person(s)
               did, with the intent to commit dealing in a narcotic drug, agree to
               commit dealing in a narcotic drug, and one or more of the
               following overt acts were performed in furtherance of said
               agreement, to wit: on one or more occasions Cordarow [], []
               Davis, or other unknown person(s) obtained heroin; on one or
               more occasions Cordarow [], [] Davis, or other unknown
               person(s) possessed heroin with intent to deliver; on one or more
               occasions Cordarow [], [] Davis, or other unknown person(s)
               delivered heroin to other persons; on one or more occasions
               Cordarow [], [] Davis, or other unknown person(s) accepted
               payment for the heroin [] which they delivered; and on one or
               more occasions the amount of heroin involved was at least ten
               (10) grams.


       (Appellant’s App. Vol. II, p. 27), See I.C.§§ 35-41-5-2; -48-4-1(e)(1). As for

       Davis’ Level 2 felony conspiracy to commit dealing in methamphetamine, the

       State alleged that


               [d]uring the time period on or about January 1, 2015 through
               January 2018, in Tippecanoe County, State of Indiana,
               Cordarow [], [] Davis, [] Gore, and/or unknown other person(s)
               did, with the intent to commit dealing in methamphetamine,
               agree to commit dealing in methamphetamine, and one or more
               of the following overt acts were performed in furtherance of said
               agreement, to wit: on one or more occasions Cordarow [], []
               Davis, [] Gore, or other unknown person(s) obtained
               methamphetamine; on one or more occasions Cordarow [], []
               Davis, [] Gore, or other unknown person(s) possessed

       Court of Appeals of Indiana | Opinion 19A-CR-1925 | February 21, 2020    Page 12 of 24
               methamphetamine with intent to deliver; on one or more
               occasions Cordarow [], [] Davis, [] Gore, or other unknown
               person(s) delivered methamphetamine to other persons; on one
               or more occasions Cordarow [], [] Davis, [] Gore, or other
               unknown person(s) accepted payment for the methamphetamine
               which they delivered; and on one or more occasions the amount
               of methamphetamine involved was at least ten (10) grams.


       (Appellant’s App. Vol. II, p. 79), See I.C.§§ 35-41-5-2; -48-4-1.1(e)(1).


[25]   To support the conspiracy to deal in heroin charge, the State presented evidence

       from Lieutenant Amor, Sergeant Sherer, Detective Goetz, and other officers,

       regarding their involvement in the controlled buys of the heroin between Davis

       and three unwitting confidential informants in 2015. The State presented

       evidence that shortly after one of the drug buys, the police initiated a traffic stop

       of a red Pontiac Grand Prix, which was owned by Gore but being driven by

       Davis and occupied by Cordarow. Upon a search of their persons, the police

       seized $992 from Cordarow and $250 from Davis. Of the money seized from

       Cordarow, $140.00 was from money supplied by VanHorn and Detective

       Goetz. Further, during the search of the Sickle Court aprtment, the police

       seized 14.55 grams of heroin, and they also determined that Cordarow and

       Davis were among the people living in that apartment. Also, the police

       discovered that Davis had hidden $20,000 in the trunk of a red Camaro

       registered to Gore. Looking at all the evidence, it appears in 2015, Davis,

       Cordarow, and Gore conspired to deal in heroin from an apartment located at

       Sickle Court, Cordarow possessed a portion of the drug buy money when the

       police searched his person following a traffic stop, Davis drove Gore’s red

       Court of Appeals of Indiana | Opinion 19A-CR-1925 | February 21, 2020       Page 13 of 24
       Pontiac Grand Prix during the drug sales, and Davis had hidden $20,000 in the

       trunk of a red Camaro registered to Gore. Thus, we conclude that the State

       presented sufficient evidence beyond a reasonable doubt to sustain Davis’ Level

       2 felony conspiracy to commit dealing in a narcotic drug conviction.


[26]   As for the Level 2 felony conspiracy to commit dealing in methamphetamine

       conviction, the State’s charging Information alleged the existence of an

       agreement between Davis, Cordarow, Gore, and another unknown person, to

       commit the crime of dealing in methamphetamine. The record shows that prior

       to the March 2017 methamphetamine sale, a confidential informant had

       disclosed to the police that two cousins, Davis and Cordarow, were selling

       methamphetamine in Lafayette. Three controlled buys were conducted

       between January 2017 and February 2017. During those controlled buys,

       Davis, with the assistance of Cordarow, sold some methamphetamine to a

       confidential informant. In March 2017, Davis delivered 113.41 grams of

       methamphetamine worth $2,800 to Sergeant Curwick. In April 2017, Davis

       first drove to the Bay Pointe Apartments office to obtain the methamphetamine

       from an unknown individual. When he left the building, he had with him a

       brown Burger King sack. Shortly thereafter, Davis delivered to Sergeant

       Curwick 138.79 grams of methamphetamine, which was in the brown Burger

       King sack, and Sergeant Curwick handed $4,000 to Davis. During the search

       of apartment number 112 at the Bay Pointe Apartments, the police discovered

       that Gore leased the apartment, and that Davis, Cordarow, and others resided

       in that apartment. Also, the police recovered two digital scales, $11,075 in


       Court of Appeals of Indiana | Opinion 19A-CR-1925 | February 21, 2020   Page 14 of 24
       cash, and an additional 493 grams of methamphetamine inside a cooler. Also,

       the black Lincoln parked outside the apartment, which the police had seen

       Cordarow drive during prior drug sales, had a kilogram of methamphetamine

       hidden under the spare tire. Here, the evidence shows that Davis acted with

       other individuals and conspired to deal in methamphetamine. Thus, we

       conclude that the State presented sufficient evidence beyond a reasonable doubt

       to sustain Davis’ Level 2 felony conspiracy to commit dealing in

       methamphetamine conviction.


                                             II. Actual Evidence Test


[27]   Next, Davis claims that his conspiracy convictions for dealing in a narcotic

       drug and dealing in methamphetamine, violated the actual evidence test under

       the Indiana Constitution.


[28]   The Indiana Constitution provides that “[n]o person shall be put in jeopardy

       twice for the same offense.” IND. CONST. art. 1, § 14. “Indiana’s Double

       Jeopardy Clause . . . prevent[s] the State from being able to proceed against a

       person twice for the same criminal transgression.” Hopkins v. State, 759 N.E.2d

       633, 639 (Ind. 2001) (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind.

       1999)). The Indiana Supreme Court has held that “two or more offenses are the

       ‘same offense’ in violation of Article I, Section 14 of the Indiana Constitution,

       if, with respect to either the statutory elements of the challenged crimes or the

       actual evidence used to convict, the essential elements of one challenged offense

       also establish the essential elements of another challenged offense.” Richardson,


       Court of Appeals of Indiana | Opinion 19A-CR-1925 | February 21, 2020    Page 15 of 24
       717 N.E.2d at 49. An offense is the same as another under the actual evidence

       test when there is a reasonable possibility that the evidence used by the fact-

       finder to establish the essential elements of one offense may have been used to

       establish the essential elements of a second challenged offense. Id. The Indiana

       Supreme Court clarified this test in Spivey v. State, 761 N.E.2d 831, 833 (Ind.

       2002), where the court held that the test is not whether the evidentiary facts

       used to establish one of the essential elements of one offense may also have

       been used to establish one of the essential elements of a second challenged

       offense; rather, the test is whether the evidentiary facts establishing the essential

       elements of one offense also establish all of the elements of a second offense. If

       the evidentiary facts establishing one offense establish only one or several, but

       not all, of the essential elements of the second offense, there is no double

       jeopardy violation. Id.


[29]   The evidence from 2015 supporting the conspiracy to commit dealing in a

       narcotic drug was entirely different from the evidence from 2017 supporting the

       conspiracy to commit dealing in methamphetamine. Specifically, in 2015,

       officers conducted controlled purchases of heroin, Davis operated out of an

       apartment at Sickle Court, Davis’ co-conspirator, Cordarow, possessed a

       portion of the buy money, and Davis used Gore’s vehicles to transport and

       store sale proceeds of the heroin. More importantly, during the search of

       apartment number 112 at Sickle Court, the police did not recover

       methamphetamine.




       Court of Appeals of Indiana | Opinion 19A-CR-1925 | February 21, 2020      Page 16 of 24
[30]   In 2017, Davis, Cordarow, and others were selling methamphetamine. Davis,

       Cordarow, Gore, and others, were residing at a different apartment in the Bay

       Pointe Apartments, and Davis was driving a different vehicle, a silver Pontiac

       Grand Prix. Three controlled buys were conducted between January and

       February 2017 between Davis, Cordarow, and a confidential informant. Other

       major controlled buys were conducted in March 2017, including one where

       Davis supplied Sergeant Curwick with 113.41 grams of methamphetamine

       worth $2,800. Another controlled drug buy occurred in April 2017, where

       Davis, with the assistance of others, obtained 138.79 grams of

       methamphetamine to sell to Sergeant Curwick. Also, during the search of

       apartment number 112 in Bay Pointe Apartments, the police discovered that

       Gore leased the new apartment, and that Davis, Cordarow, and others resided

       in that apartment. Also, the police recovered two digital scales, $11,075 in

       cash, and an additional 493 grams of methamphetamine stored inside a cooler,

       and the black Lincoln parked outside the apartment, which Cordarow had been

       seen driving, had a kilogram of methamphetamine hidden in it.


[31]   The actual-evidence test is only violated if there is a reasonable possibility that

       the jury latched on to the same set of facts to support each conviction. Garrett v.

       State, 992 N.E.2d 710, 719 (Ind. 2013). Given the clear division in time, the

       change in physical location, the change in automobiles used, and the change in

       the drug being dealt, there is no reasonable possibility that the jury latched on to

       the same evidence to convict Davis of his conspiracy charges relating to the

       heroin and methamphetamine. As a result, we reject Davis’ argument that


       Court of Appeals of Indiana | Opinion 19A-CR-1925 | February 21, 2020     Page 17 of 24
       convicting him of the Level 2 felony conspiracy to commit dealing in a narcotic

       drug, and Level 2 felony conspiracy to commit dealing in methamphetamine,

       violated double jeopardy principles under the actual evidence test.


                                           III. Consecutive Sentences

[32]   Sentencing decisions are matters left to the sound discretion of the trial court.

       Anglemyer v. State, 868 N.E.2d 482, 490, clarified on reh’g, 875 N.E.2d 218 (Ind.

       2007). On appeal, we review a trial court’s sentencing order only for an abuse

       of discretion. Id. It is an abuse of discretion if the trial court’s “decision is

       ‘clearly against the logic and effect of the facts and circumstances before the

       court, or the reasonable, probable, and actual deductions to be drawn

       therefrom.’” Id. (quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)). Our

       supreme court has determined that in matters of sentencing, a trial court may

       abuse its discretion by failing to enter a sentencing statement, entering a finding

       of aggravating and mitigating factors that are unsupported by the record,

       omitting reasons that are clearly supported by the record and are advanced for

       consideration, or by including reasons that are improper as a matter of law. Id.

       at 490-91. If we find that the trial court has abused its discretion, we will

       remand for resentencing “‘if we cannot say with confidence that the trial court

       would have imposed the same sentence had it properly considered reasons that

       enjoy support in the record.’” Sandleben v. State, 22 N.E.3d 782, 796 (Ind. Ct.

       App. 2014) (quoting Anglemyer, 868 N.E.2d at 491), trans. denied.




       Court of Appeals of Indiana | Opinion 19A-CR-1925 | February 21, 2020       Page 18 of 24
[33]   Indiana Code section 35-50-2-4.5 provides that “A person who commits a Level

       2 felony shall be imprisoned for a fixed term of between ten (10) and thirty (30)

       years, with the advisory sentence being seventeen and one-half (17 ½ ) years.”


[34]   In order to impose consecutive sentences, a trial court must find at least one

       aggravating circumstance. Sanquenetti v. State, 727 N.E.2d 437, 442 (Ind. 2000).

       Aggravating circumstances may include, but are not limited to, any of several

       statutorily enumerated factors. See I.C. § 35-38-1-7.1. A single aggravating

       circumstance may support the imposition of consecutive sentences. Lavoie v.

       State, 903 N.E.2d 135, 140 (Ind. Ct. App. 2009). Although a trial court is

       required to state its reasons for imposing consecutive sentences, it may rely on

       the same reasons to impose a maximum sentence and also impose consecutive

       sentences. Id.


[35]   The trial court sentenced Davis to consecutive sentences of eighteen years for

       each of his Level 2 felony conspiracy drug conviction, and an additional six

       years for his Level 5 felony corrupt business practices conviction. However, the

       trial court suspended six years of the Level 2 felony conspiracy to commit

       dealing in methamphetamine for an executed sentence of thirty-six years.


[36]   Davis’ sole argument here, is that the trial court abused its sentencing discretion

       by imposing consecutive sentences for his conspiracy drug convictions, and in

       support of his argument, he directs us to Beno v. State, 581 N.E.2d 922

       (Ind.1991), and Hendrickson v. State, 690 N.E.2d 765, 767-68 (Ind. Ct. App.

       1998).


       Court of Appeals of Indiana | Opinion 19A-CR-1925 | February 21, 2020     Page 19 of 24
[37]   In Beno, the police arranged for a confidential informant to purchase cocaine

       from Beno at his residence on two different occasions. Beno, 581 N.E.2d at 923.

       Beno was then convicted of two Counts of dealing in cocaine and one Count of

       maintaining a common nuisance. Id. at 924. During the sentencing hearing,

       Beno was sentenced to the maximum term of imprisonment on each of the

       three convictions with each term to be served consecutively, for a total of

       seventy-four years imprisonment. Id. After accepting transfer, our supreme

       court determined Beno’s sentence to be manifestly unreasonable. Specifically,

       it found that, although the trial court properly sentenced Beno to the maximum

       term on each Count, the trial court erroneously ordered the sentences to be

       served consecutively. Id. In reaching its conclusion, the supreme court noted

       that, although a trial court has discretion to impose both maximum and

       consecutive sentences, where a defendant is enticed by the police to commit

       nearly identical crimes as a result of a police sting operation, consecutive

       sentences are inappropriate. Id.


[38]   In Hendrickson v. State, 690 N.E.2d 765, 767 (Ind. Ct. App. 1998), the police

       conducted five controlled buys over a period of two months in which

       Hendrickson sold marijuana, methadone, and two different legend drugs. After

       the trial court imposed consecutive sentences, we revised the sentences to

       concurrent terms on appeal. Id. In so doing, we explained, “the purpose of

       Beno in prohibiting consecutive sentences when the police entice additional

       drug buys, applies whether or not different drugs are involved. Therefore, we




       Court of Appeals of Indiana | Opinion 19A-CR-1925 | February 21, 2020    Page 20 of 24
       conclude that the holding in Beno is applicable even if the defendant provides a

       different type of drug during additional buys.” Id.


[39]   Although not cited by Davis, we find Gregory v. State, 644 N.E.2d 543, 544 (Ind.

       1994) instructive in our analysis. In Gregory, Gregory sold cocaine to an

       informant on four separate occasions during a ten-day period. Id. As the result

       of the government sting operation, Gregory was convicted of four Counts of

       selling cocaine to the same police informant. Id. The trial court sentenced

       Gregory to the presumptive term of thirty years on each Count and ordered

       each Count to be served consecutively. Id. Our supreme court addressed

       whether the consecutive sentences were manifestly unreasonable and held that

       “[c]onsecutive sentences are not appropriate when the State sponsors a series of

       virtually identical offenses.” Id. Specifically, the court held:


               As in Beno, Gregory sold the same drug to the same informant on
               several occasions over a short period of time. Presumably, the
               police could have set up any number of additional transactions,
               each time adding an additional [C]ount against Gregory. While
               the police may find it necessary to conduct a series of buys, the
               trial court should be leery of sentencing a defendant to
               consecutive terms for each [C]ount. We hold that on these facts,
               a sentence of 120 years was inappropriate.


       Id. at 546.


[40]   What is more, in Williams v. State, 891 N.E.2d 621, 635 (Ind. Ct. App. 2008),

       we held that the principle that “the State may not ‘pile on’ sentences by

       postponing prosecution in order to gather more evidence . . . applies equally to


       Court of Appeals of Indiana | Opinion 19A-CR-1925 | February 21, 2020   Page 21 of 24
       convictions arising from evidence gathered as a direct result of the State-

       sponsored criminal activity.” And, more recently, our supreme court took the

       same approach in holding that consecutive sentences were inappropriate where

       controlled buys led to a search and additional drug-related convictions.

       Eckelbarger v. State, 51 N.E.3d 169, 170 (Ind. 2016).


[41]   Distinguishing the facts of this case from Beno and its progeny, the State argues

       that the trial court in this case did not impose the maximum possible sentence

       on Davis’ Level 2 felony convictions as in Beno. Thus, the State argues that

       Davis’ reliance on that case is misplaced. The State’s argument ignores our

       holding in Gregory, where we found presumptive consecutive sentences to be

       inappropriate. Also, the State appears to argue that because there were two

       different drugs involved (i.e. heroin and methamphetamine), the trial court was

       justified in imposing multiple convictions. While the State’s second argument

       is premised on the fact that different drugs were involved, it fails to so much as

       acknowledge our decision in Hendrickson in which we reversed consecutive drug

       convictions relating to the sale of different drugs.


[42]   Similar to the defendants in Beno, Hendrickson, and Gregory, Davis was enticed

       by the police to make drug sales as part of a sting operation. While the drug

       buys happened over two years apart, which was not in close temporal proximity

       as the four days at issue in Beno, 581 N.E.2d at 923, or the two-month period in

       Hendrickson, 690 N.E.2d at 766, or the ten days at issue in Gregory, 644 N.E.2d

       at 544, the clear import we gather from Gregory, Jones, and Williams, is that they

       require that the “sentences for each conviction arising from evidence seized

       Court of Appeals of Indiana | Opinion 19A-CR-1925 | February 21, 2020    Page 22 of 24
       after the State began sponsoring the criminal activity to run concurrently.”

       Williams, 891 N.E.2d at 635. Under these circumstances, we find that Davis’

       consecutive sentences are not appropriate. See id.


[43]   “When we find an irregularity in the trial court’s sentencing decision, we may

       remand to the trial court for a clarification or a new sentencing determination,

       or affirm the sentence if the error is harmless, or impose a proper sentence.”

       Rios v. State, 930 N.E.2d 664 (Ind. Ct. App. 2010). In the instant case, we elect

       to impose a proper sentence pursuant to the cases cited, and order that Davis

       serve concurrent eighteen-year terms on the conspiracy to commit dealing in a

       narcotic drug and methamphetamine convictions with no sentence suspended.

       All other aspects of his sentence, including the six-year sentence for his Level 5

       felony corrupt business influence conviction, are affirmed, and we remand to

       the trial court with instructions to enter a new sentencing order consistent with

       this opinion.


                                              CONCLUSION
[44]   Based on the foregoing, we conclude that the State presented sufficient evidence

       beyond a reasonable doubt to sustain Davis’ conspiracy convictions and his

       conspiracy convictions did not violate double jeopardy principles under the

       actual evidence test. However, we reverse his consecutive sentences as to the

       Level 2 felony conspiracy to commit dealing in heroin and methamphetamine

       convictions, finding them inappropriate, and remand to the trial court to issue a

       new sentencing order consistent with this opinion.


       Court of Appeals of Indiana | Opinion 19A-CR-1925 | February 21, 2020    Page 23 of 24
[45]   Affirmed in part, reversed in part, and remanded with instructions.


[46]   Baker, J. and Brown, J. concur




       Court of Appeals of Indiana | Opinion 19A-CR-1925 | February 21, 2020   Page 24 of 24
