MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                    Jan 29 2019, 9:52 am
regarded as precedent or cited before any
                                                                             CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Troy D. Warner                                           Curtis T. Hill, Jr.
Public Defender’s Office                                 Attorney General of Indiana
South Bend, Indiana
                                                         Ellen H. Meilaender
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Lee Brady, Jr.,                                   January 29, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1395
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jeffrey L. Sanford,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         71D03-1708-F2-10



Barteau, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1395 | January 29, 2019                 Page 1 of 9
                                           Statement of the Case
[1]   Appellant Robert Brady, Jr. appeals his conviction of Level 2 felony dealing in
                                    1
      methamphetamine. We affirm.


                                                          Issue
[2]   Brady presents one issue for our review: whether the State presented sufficient

      evidence to support his conviction of dealing in methamphetamine.


                                    Facts and Procedural History
[3]   On August 2, 2017, Jermon Gavin contacted his friend, Ron Snyder, about

      obtaining one and one-half pounds of methamphetamine. Snyder called Josh

      Sage, who indicated he could provide the methamphetamine for the price of

      $13,500, to which Snyder added $500 as his fee. Later that same day, Sage and

      his brother, Brady, arrived at Snyder’s house armed with handguns. They hung

      out with Snyder in the basement during which time they smoked some

      methamphetamine provided by Sage.


[4]   Before going to Snyder’s house to obtain the drugs, Gavin and his friends Jesus

      Pedraza, Benito Pedraza, and Damon Bethel discussed turning the drug

      purchase into a robbery, and they armed themselves with handguns. On the

      way, they pointed out Snyder’s house to Bethel and then dropped him off

      around the corner. When they arrived at Snyder’s house to purchase the



      1
          Ind. Code § 35-48-4-1.1(a)(2), (e)(1) (2017).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1395 | January 29, 2019   Page 2 of 9
      methamphetamine, Snyder, Sage, and Brady went to the garage to conduct the

      transaction with them.


[5]   The men talked in the garage until Jesus asked Snyder for a scale. Snyder went

      to the basement to retrieve a scale and then returned to the garage. Sage and

      Brady produced the drugs as “a team,” and Sage, with Brady standing “right

      next to him,” proceeded to weigh the methamphetamine. Tr. Vol. 3, pp. 78,

      76. As the drugs were being weighed, Brady stated, “I told you it’s all there.

      It’s just a little shaky.” Id. at 76.


[6]   Suddenly, Bethel appeared in the garage and someone was heard to say, “Don’t

      nobody move. Give me that shit.” Id. at 81. Gun shots were fired, and Snyder

      ran outside the garage to the side of the house to hide his personal stash of

      drugs. Brady ran by Snyder and out to the yard with the bag of

      methamphetamine. Id. at 50. At some point, Brady went to the kitchen to wipe

      down the guns.


[7]   As a result of the gunfire, Sage and Bethel were shot, and Bethel died. During

      their investigation, the police found in the yard a gray plastic grocery bag that

      contained two Ziploc baggies of what was later determined to be approximately

      548 grams of methamphetamine. Testing revealed that a red substance found

      on both Ziploc baggies and on the gray grocery bag was Brady’s blood, likely

      from an injury he sustained to his hand.


[8]   Based upon this incident, Brady was charged with Count I dealing in

      methamphetamine, a Level 2 felony; Count II attempted dealing in

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1395 | January 29, 2019   Page 3 of 9
                                                             2
       methamphetamine, a Level 2 felony; and Count III carrying a handgun
                                                                       3
       without a license, a Class A misdemeanor. Following a jury trial, Brady was

       found guilty as charged on all counts. At sentencing, the court merged Count II

       into Count I and ordered an aggregate sentence of eighteen and one-half years

       on Counts I and III. Brady now appeals his conviction of dealing in

       methamphetamine.


                                           Discussion and Decision
[9]    When an appellant challenges the sufficiency of the evidence of his conviction

       after a jury verdict, “the appellate posture is markedly deferential to the

       outcome below.” Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016). Upon

       such a review, we neither reweigh the evidence nor judge the credibility of the

       witnesses. Brasher v. State, 746 N.E.2d 71, 72 (Ind. 2001). Instead, we consider

       only the evidence most favorable to the verdict and any reasonable inferences

       drawn therefrom. Id. If there is probative evidence from which a reasonable

       jury could have found the defendant guilty beyond a reasonable doubt, we will

       affirm the conviction. Dillard v. State, 755 N.E.2d 1085, 1089 (Ind. 2001).


[10]   At trial, the State alleged that Brady committed dealing in methamphetamine in

       conjunction with Sage, and the court instructed the jury on accomplice liability.

       In order to convict Brady of dealing in methamphetamine as an accomplice, the




       2
           Ind. Code §§ 35-41-5-1 (2014), 35-48-4-1.1(a)(2), (e)(1).
       3
           Ind. Code § 35-47-2-1 (2017).


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1395 | January 29, 2019   Page 4 of 9
       State was required to prove beyond a reasonable doubt that he knowingly or

       intentionally aided, induced, or caused another person to commit this offense.

       See Ind. Code § 35-41-2-4 (1977). To obtain a conviction of dealing in

       methamphetamine as charged in this case, the State was required to prove

       beyond a reasonable doubt that (1) Brady (2) possessed with intent to deliver (3)

       at least 10 grams of methamphetamine. Appellant’s App. Vol. 2, p. 26; see also

       Ind. Code § 35-48-4-1.1(a)(2), (e).


[11]   A person who aids another in committing a crime is just as guilty as the actual

       perpetrator. Lothamer v. State, 44 N.E.3d 819, 822 (Ind. Ct. App. 2015), trans.

       denied. An accomplice can be charged as a principal for all acts committed in

       the accomplishment of the crime. Smith v. State, 809 N.E.2d 938, 944 (Ind. Ct.

       App. 2004), trans. denied. It is not necessary that the evidence show the

       accomplice personally participated in the commission of each element of the

       offense. Griffin v. State, 16 N.E.3d 997, 1003 (Ind. Ct. App. 2014). Rather,

       mere tangential involvement in the crime can be sufficient to convict a person

       as an accomplice. Berry v. State, 819 N.E.2d 443, 450 (Ind. Ct. App. 2004),

       trans. denied. Further, an accomplice is “criminally responsible for everything

       which follows incidentally in the execution of the common design, as one of its

       natural and probable consequences, even though it was not intended as part of

       the original design or common plan.” Griffin, 16 N.E.3d at 1003.


[12]   There is no bright-line rule in determining accomplice liability; rather, the

       particular facts and circumstances of each case must be considered to determine

       whether a person participated in the offense as an accomplice. Castillo v. State,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1395 | January 29, 2019   Page 5 of 9
       974 N.E.2d 458, 466 (Ind. 2012). In order for an accomplice’s conviction to

       stand:


                [T]here must be evidence of his affirmative conduct, either in the
                form of acts or words, from which an inference of a common
                design or purpose to effect the commission of a crime may be
                reasonably drawn. Each participant must knowingly or
                intentionally associate himself with the criminal venture,
                participate in it, and try to make it succeed. That said, the State
                need not show that [he] was a party to a preconceived scheme; it
                must merely demonstrate concerted action or participation in an
                illegal act.


       Griffin, 16 N.E.3d at 1003-04 (internal citations omitted).


[13]   While a defendant’s presence at the scene or lack of opposition to a crime,

       standing alone, is insufficient to establish accomplice liability, courts may

       consider presence in conjunction with other factors to determine whether one

       acted as an accomplice to a crime. Tuggle v. State, 9 N.E.3d 726, 736 (Ind. Ct.

       App. 2014), trans. denied. The four factors relevant to this inquiry are: (1)

       presence at the scene of the crime, (2) companionship with another at the scene

       of the crime, (3) failure to oppose commission of the crime, and (4) course of

       conduct before, during, and after occurrence of the crime. Id.


                                          (1) Presence at the Scene

[14]   The evidence shows that Brady arrived at Snyder’s house with his brother,

       Sage. He remained at the house hanging out and smoking methamphetamine

       with his brother and Snyder and participating in the drug transaction in the

       garage until it was cut short by gunfire.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1395 | January 29, 2019   Page 6 of 9
                                      (2) Companionship at the Scene

[15]   The State presented evidence that Brady arrived at Snyder’s house with his

       brother, Sage, whom Snyder had called to obtain drugs. Brady and Sage were

       both armed with handguns, and they both smoked methamphetamine with

       Snyder in his basement. When Gavin arrived to purchase the drugs, Brady,

       Snyder, and Sage all went to the garage to conduct the transaction. Brady

       remained in the garage talking with everyone, and he and Sage jointly produced

       the drugs for weighing. In a coordinated endeavor, Brady and Sage weighed

       the drugs as Brady assured the men the bags contained the full one and one-half

       pounds of methamphetamine.


                           (3) Failure to Oppose Commission of the Crime

[16]   Not only did Brady not oppose the sale of the methamphetamine, he

       unreservedly participated in the sale in concert with his brother.


                                            (4) Course of Conduct

[17]   Brady, armed with a handgun, accompanied his brother to Snyder’s house to

       conduct a drug deal. While there, he smoked methamphetamine and

       collaborated with his brother to weigh the drugs. As gunfire erupted in the

       garage, Brady took the bags of methamphetamine and ran outside to hide them.

       He then wiped down his gun and sought a place to conceal it as well. From this

       evidence, a jury could reasonably conclude that Brady was guilty of dealing in

       methamphetamine as an accomplice.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1395 | January 29, 2019   Page 7 of 9
[18]   Brady additionally contends the evidence is insufficient to support his

       conviction because Snyder’s testimony “regarding the source of the meth is

       incredibly dubious and uncorroborated.” Appellant’s Br. p. 15. Brady argues

       that Snyder’s testimony that Sage provided the methamphetamine and that

       Snyder was only a middle man does not make sense. Brady suggests that

       Snyder provided the drugs and that Brady and Sage were Snyder’s security

       men.


[19]   Appellate courts may apply the incredible dubiosity rule to impinge upon a

       jury’s function to judge the credibility of a witness only when confronted with

       inherently improbable testimony or coerced, equivocal, wholly uncorroborated

       testimony of incredible dubiosity. Whatley v. State, 908 N.E.2d 276, 282 (Ind.

       Ct. App. 2009), trans. denied. Application of this rule is rare and is limited to

       cases where a single witness presents inherently contradictory testimony which

       is equivocal or the result of coercion and there is a complete lack of

       circumstantial evidence of guilt. Id. The standard to be applied for this rule is

       whether the testimony is so incredibly dubious or inherently improbable that no

       reasonable person could believe it. Fancher v. State, 918 N.E.2d 16, 22 (Ind. Ct.

       App. 2009).


[20]   At trial Snyder testified unequivocally that he did not provide the

       methamphetamine for this sale and that he did not have the methamphetamine

       at his house at the beginning of the night. He also testified that he contacted

       Sage to get the methamphetamine for Gavin and that Sage quoted him a price

       of $13,500. Upon arriving at the house, Sage produced some

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1395 | January 29, 2019   Page 8 of 9
       methamphetamine that he, Brady, Snyder and others smoked in the basement.

       When Snyder retrieved the scale, Sage first complained that it was not big

       enough and then went on to produce and weigh the methamphetamine.

       Moreover, Snyder’s testimony was corroborated by Gavin. Gavin testified that

       Sage and Brady produced the methamphetamine as a team, that Brady stood

       with Sage while he weighed the drugs, and that Brady assured the men that it

       was all there.


[21]   It is within the factfinder’s province to judge the credibility of the witnesses.

       Brasher, 746 N.E.2d at 73. In doing so, the trier of fact is entitled to determine

       which version of the incident to credit. Schmid v. State, 804 N.E.2d 174, 179

       (Ind. Ct. App. 2004), trans. denied. Snyder’s testimony is not so incredibly

       dubious or inherently improbable that no reasonable person could believe it.

       Brady’s argument is merely an invitation for this Court to invade the province

       of the trier of fact by reassessing witness credibility. We decline the invitation.


                                                Conclusion
[22]   For the reasons stated, we conclude there was sufficient evidence to support

       Brady’s conviction of dealing in methamphetamine as an accomplice.


[23]   Affirmed.


       Robb, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1395 | January 29, 2019   Page 9 of 9
