MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                            Aug 18 2015, 9:06 am
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                                   ATTORNEYS FOR APPELLEE
Leanna Weissmann                                         Gregory F. Zoeller
Lawrenceburg, Indiana                                    Attorney General of Indiana
                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher Spain,                                       August 18, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         15A01-1502-CR-68
        v.                                               Appeal from the Dearborn Circuit
                                                         Court
State of Indiana,                                        The Honorable James D.
Appellee-Plaintiff                                       Humphrey, Judge
                                                         Trial Court Cause No. 15C01-
                                                         1403-FB-13



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 15A01-1502-CR-68 | August 18, 2015     Page 1 of 9
[1]   While incarcerated in 2014, Appellant-Defendant Christopher Spain carried out

      a plan by which he engaged his sister to fill a fellow inmate’s prescription for

      painkillers, sell the medication, and put the proceeds from the sale onto Spain’s

      jail commissary account. Appellee-Plaintiff the State of Indiana (“the State”)

      charged Spain with Class B felony conspiracy to commit dealing in a Schedule

      III controlled substance and Class D felony conspiracy to commit theft. A jury

      found Spain guilty as charged and the trial court imposed an aggregate twenty-

      year sentence. On appeal, Spain argues that there is insufficient evidence to

      support his conviction for theft and that his sentence is inappropriate in light of

      the nature of the offense and his character. We affirm.



                            Facts and Procedural History
[2]   On January 16, 2014, Daniel Carpenter was arrested and placed in the

      Dearborn County jail. Spain was also incarcerated at the Dearborn County jail

      at the time. On January 17, 2014, Dearborn County Detective Nicholas Beetz

      received information from a confidential informant that someone was planning

      to fill Carpenter’s prescription for buprenorphine, a Schedule III controlled

      substance. On January 26, 2014, while Carpenter was still incarcerated,

      Carpenter’s prescription was filled at a local pharmacy. Detective Beetz

      obtained video surveillance identifying Jessica Cantwell as the person who

      filled Carpenter’s prescription. Jessica Cantwell is Spain’s sister and the mother

      of Carpenter’s child.




      Court of Appeals of Indiana | Memorandum Decision 15A01-1502-CR-68 | August 18, 2015   Page 2 of 9
[3]   During his investigation, Detective Beetz reviewed phone calls made by Spain

      while in jail. On January 17, 2014, Spain called Cantwell and learned from

      Cantwell that Carpenter had been arrested and was in jail. Spain called

      Cantwell again on January 26, 2014 and asked her to fill the remainder of

      Carpenter’s prescription, forty-seven buprenorphine tablets. (State’s Ex. 8A)

      Spain then told Cantwell Carpenter’s birth date and social security number.

      Spain also told Cantwell that the medication would cost $150 and that he

      wanted $500 from its sale.


[4]   On January 27, 2014, Spain called Cantwell and learned that Cantwell had sold

      most of the buprenorphine tablets and made nearly $300. Spain asked Cantwell

      to put $200 on his jail commissary account and $50 on his jail phone cards.

      Spain specifically told Cantwell to put the money in his account and not

      Carpenter’s because Carpenter was indebted to the jail for breaking a TV while

      previously incarcerated and so any money placed in Carpenter’s account would

      be taken. Spain called Cantwell again later the same day and Cantwell

      informed him that she had put $160 on Spain’s commissary account and $50 on

      his phone card.


[5]   On February 25, 2014, Detective Beetz interviewed Spain who denied having

      knowledge of obtaining or selling Carpenter’s medication. Approximately two

      hours after the interview concluded, Spain called Mary Ellen Smith and told

      her to tell Cantwell to say it was Carpenter who had planned the sale of the

      buprenorphine.



      Court of Appeals of Indiana | Memorandum Decision 15A01-1502-CR-68 | August 18, 2015   Page 3 of 9
[6]   The State charged Spain with Class B felony conspiracy to commit dealing in a

      Schedule III controlled substance and Class D felony conspiracy to commit

      theft. At trial, Carpenter testified that he did not give Spain or Cantwell

      permission to obtain the remainder of his medication and that he did not tell

      Spain his birth date or social security number. Carpenter also testified that he

      had never broken a TV while incarcerated and was not indebted to the

      Dearborn County jail. A jury found Spain guilty as charged and the trial court

      subsequently sentenced Spain to twenty years for conspiracy to deal a

      controlled substance and three years for conspiracy to commit theft, to be

      served concurrently.



                                 Discussion and Decision
[7]   On appeal, Spain argues (1) that there is insufficient evidence to support his

      conviction for conspiracy to commit theft, and (2) that his sentence is

      inappropriate in light of the nature of the offense and his character.


                                  I. Sufficiency of Evidence
[8]           When reviewing the sufficiency of the evidence to support a
              conviction, appellate courts must consider only the probative
              evidence and reasonable inferences supporting the verdict. It is the
              fact-finder’s role, not that of appellate courts, to assess witness
              credibility and weigh the evidence to determine whether it is
              sufficient to support a conviction. To preserve this structure,
              when appellate courts are confronted with conflicting evidence,
              they must consider it most favorably to the trial court’s ruling.
              Appellate courts affirm the conviction unless no reasonable fact-
              finder could find the elements of the crime proven beyond a

      Court of Appeals of Indiana | Memorandum Decision 15A01-1502-CR-68 | August 18, 2015   Page 4 of 9
               reasonable doubt. It is therefore not necessary that the evidence
               overcome every reasonable hypothesis of innocence. The
               evidence is sufficient if an inference may reasonably be drawn
               from it to support the verdict.


       Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007) (internal quotations and

       citations omitted, emphases in original).


[9]    In order to convict Spain of Class D felony conspiracy to commit theft the State

       was required to prove that Spain conspired to knowingly or intentionally exert

       unauthorized control over Carpenter’s prescription medication with the intent

       to deprive Carpenter of any part of its value or use. Ind. Code § 35-42-4-2

       (2014). “A person conspires to commit a felony when, with intent to commit

       the felony, he agrees with another person to commit the felony.” Ind. Code §

       35-41-5-2 (2014).


[10]   Spain argues that the State failed to prove the “unauthorized control” element

       of the crime because, he claims, the evidence suggests that Carpenter was aware

       of and in on the scheme to sell his medication. In support of this argument,

       Spain claims that there is no plausible explanation for how he learned

       Carpenter’s date of birth and social security number other than Carpenter

       volunteering that information so that Spain could get the prescription filled.

       Carpenter testified that he did not tell Spain his date of birth or social security

       number. When asked how Spain discovered this information, Carpenter

       testified that Spain was often in his jail cell and could have found the




       Court of Appeals of Indiana | Memorandum Decision 15A01-1502-CR-68 | August 18, 2015   Page 5 of 9
       information on Carpenter’s court documents. Spain argues that Carpenter’s

       testimony that he was not privy to the scheme is incredibly dubious.


[11]   The rule of incredible dubiosity is expressed as follows:


               If a sole witness presents inherently improbable testimony and
               there is a complete lack of circumstantial evidence, a defendant’s
               conviction may be reversed. This is appropriate only where the
               court has confronted inherently improbable testimony or coerced,
               equivocal, wholly uncorroborated testimony of incredible
               dubiosity. Application of this 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.


       Leyva v. State, 971 N.E.2d 699, 702 (Ind. Ct. App. 2012) (quoting Love v. State,

       761 N.E.2d 806, 810 (Ind. 2002)).


[12]   Spain has failed to show that Carpenter’s testimony is incredibly dubious for

       several reasons. First, there is circumstantial evidence which supports

       Carpenter’s testimony that he was unaware of the scheme to sell his

       medication, namely that Spain told Cantwell to put all of the proceeds from the

       sold medication onto Spain’s commissary account and none onto Carpenter’s.

       Spain went so far as to fabricate a story about a Carpenter breaking a TV in

       order to justify his request to keep the money off Carpenter’s account.

       Furthermore, despite Spain’s argument to the contrary, we do not think that it

       “runs counter to human experience” to believe that Spain could have

       discovered Carpenter’s personal information on court documents while visiting

       his room. Campbell v. State, 732 N.E.2d 197, 207 (Ind. Ct. App. 2000).


       Court of Appeals of Indiana | Memorandum Decision 15A01-1502-CR-68 | August 18, 2015   Page 6 of 9
[13]   Essentially, Spain’s argument is that Carpenter’s testimony is unreliable and, as

       a result, this court should reweigh the evidence and reevaluate Carpenter’s

       credibility. However, as we stated above, “[i]t is the fact-finder’s role, not that

       of appellate courts, to assess witness credibility and weigh the evidence to

       determine whether it is sufficient to support a conviction.” Drane, 867 N.E.2d at

       146. Merely showing reason to question the credibility of a witness is not

       sufficient to invoke the rule of incredible dubiosity, and we decline to do so

       here.


                       II. Appropriateness of Spain’s Sentence
[14]   “Ind. Appellate Rule 7(B) empowers us to independently review and revise

       sentences authorized by statute if, after due consideration, we find the trial

       court’s decision inappropriate in light of the nature of the offense and the

       character of the offender.” Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App.

       2013), trans. denied. “An appellant bears the burden of showing both prongs of

       the inquiry favor revision of her sentence.” Id. (citing Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006)). “We must give ‘deference to a trial court’s

       sentencing decision, both because Rule 7(B) requires us to give due

       consideration to that decision and because we understand and recognize the

       unique perspective a trial court brings to its sentencing decisions.’” Gil v. State,

       988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013) (quoting Trainor v. State, 950

       N.E.2d 352, 355-56 (Ind. Ct. App. 2011), trans. denied.)




       Court of Appeals of Indiana | Memorandum Decision 15A01-1502-CR-68 | August 18, 2015   Page 7 of 9
[15]   Spain argues that the nature of the offense does not justify the sentence because

       the amount he actually received from the stolen medication, $126, was

       relatively insignificant. Additionally, Spain argues that because Carpenter’s

       medical needs were taken care of while incarcerated, “the crime did not have a

       deleterious impact on a victim or on society in general.” Appellant’s Br. p. 14.

       It seems that Spain argues only that the nature of his theft does not justify the

       sentence. Spain fails to address the nature of the offense of dealing in a

       controlled substance. While in jail, Spain recruited his sister to help him steal

       and sell powerful opioid medication. Dealing drugs in this manner clearly has

       a significant detrimental impact on the society at large. Additionally,

       Carpenter’s scheme led to Cantwell’s arrest in relation to the instant crimes.


[16]   Furthermore, Spain has provided no compelling reasons why the sentence is

       inappropriate in light of his character. The only tangible argument he makes in

       this regard is that he was raised in an environment which was inundated with

       drugs and he has struggled with addiction since he was a teenager. The reality

       is that Spain has been shown leniency by previous courts and has declined to

       change his behavior. Spain’s criminal history began with a theft conviction in

       2008 for which he was sentenced to three years of probation, the terms of which

       he violated in 2009. In 2009, Spain was convicted of possession of

       paraphernalia, sentenced to one year of probation, and again violated its terms.

       In 2014, Spain was convicted of two counts of Class D felony theft and Class C

       felony burglary, for which he was given a fourteen year sentence with five years

       executed and nine suspended to probation.


       Court of Appeals of Indiana | Memorandum Decision 15A01-1502-CR-68 | August 18, 2015   Page 8 of 9
[17]   Spain has provided no indication that he intends to reform his behavior, quite

       the opposite in fact. While in jail, and prior to even being sentenced for the

       2014 convictions, Spain committed the instant crimes. The trial court noted

       during sentencing that while he was incarcerated, “[Spain] was removed from

       the [Jail Chemical Addictions Counseling Program] for discussions of

       smuggling illegal drugs into the [jail].” Tr. p. 345. The trial court also noted

       that in Spain’s presentence interview, he stated that he had no intention to stop

       smoking marijuana once released from probation and he discussed ways to

       cheat on drug screens.


[18]   For the forgoing reasons, we do not think that Spain’s sentence is inappropriate

       in light of his offenses or character.


[19]   The judgment of the trial court is affirmed.


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A01-1502-CR-68 | August 18, 2015   Page 9 of 9
