MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                              Jul 05 2017, 8:42 am
court except for the purpose of establishing
the defense of res judicata, collateral                                    CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stacy R. Uliana                                          Curtis T. Hill, Jr.
Bargersville, Indiana                                    Attorney General of Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brandon L. Garner,                                       July 5, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         62A04-1612-CR-2774
        v.                                               Appeal from the Perry Circuit
                                                         Court
State of Indiana,                                        The Honorable Lucy Goffinet,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         62C01-1603-F3-165



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 62A04-1612-CR-2774 | July 5, 2017            Page 1 of 13
                                          Case Summary
[1]   After a jury trial, Appellant-Defendant Brandon L. Garner was convicted of

      conspiracy to commit dealing in methamphetamine, conspiracy to commit

      maintaining a common nuisance, and resisting law enforcement. The trial

      court sentenced Garner to fourteen years executed for conspiracy in dealing,

      two years for conspiracy in maintaining a common nuisance, and one year for

      resisting law enforcement. The first and second sentences were ordered to run

      consecutively and the third sentence was to run concurrent with the first

      sentence, for an aggregate sentence of sixteen years of incarceration.


[2]   Garner argues the following restated issues: 1) whether Garner’s convictions for

      two conspiracies violates the actual evidence test; 2) whether there was a fatal

      variance between pleading and proof for the conspiracy to deal charge when the

      State proved that Garner possessed a firearm on the charged date; and 3)

      whether Garner’s sentence was inappropriate in light of the nature of his

      offenses and his character. Because the two conspiracy convictions violate the

      actual evidence test, we reverse the trial court, vacate the conspiracy to

      maintaining a common nuisance conviction, and reduce Garner’s sentence by

      two years. We affirm the trial court on all other issues.



                            Facts and Procedural History
[3]   Alicia Kellems and Garner met in November of 2015 through mutual friends

      who used methamphetamine together. The two bonded over their shared


      Court of Appeals of Indiana | Memorandum Decision 62A04-1612-CR-2774 | July 5, 2017   Page 2 of 13
      interest in drugs and began dating in January of 2016. It was around this time

      that Kellems and Garner decided to start buying methamphetamine in

      Louisville, Kentucky, to resell in Tell City, Indiana. Shortly before their

      relationship began, Kellems was convicted of dealing in methamphetamine,

      and Garner was released to parole after having served time for other parole

      violations.


[4]   Starting in January of 2016, Kellems and Garner would regularly drive to

      Louisville to buy 14 grams of methamphetamine, which they would sell out of a

      hotel room in Tell City. The couple then personally ingested whatever drugs

      they were unable to sell.


[5]   When Garner and Kellems initially began dealing the methamphetamine, they

      had to borrow friends’ vehicles to retrieve their supply in Louisville because

      neither one owned a vehicle. Eventually, the two purchased a truck that they

      registered in Kellems’s name because Garner did not have a valid license. The

      couple drove the truck regularly, and they had joint access to the vehicle. The

      couple also carried firearms for their own protection when they went to

      Louisville to buy drugs. From January of 2016 until March of 2016, Kellems

      and Garner did not have a permanent residence, so they would stay either with

      Garner’s mother or in a hotel. Due to the fact that they did not have a

      permanent residence, they often kept their personal belongings in their truck.


[6]   On the evening of March 16, 2016, a hotel clerk at the Ramada Inn in Tell City

      called police to inform them that a loud argument was taking place in room 220


      Court of Appeals of Indiana | Memorandum Decision 62A04-1612-CR-2774 | July 5, 2017   Page 3 of 13
      and the clerk feared that physical violence may be occurring. Officer Jason

      Shadwick of the Tell City Police Department was dispatched to the scene.

      When Officer Shadwick arrived outside of room 220, he could hear a male and

      a female yelling at each other. The yelling stopped when Officer Shadwick

      knocked on the door.


[7]   Inside the room, Kellems grabbed a loaded handgun and slid it across the bed

      to Garner. Garner threw the gun out of the room’s only window along with

      their mobile telephones, a bottle of cologne, and a pack of cigarettes. After he

      threw the items out of the window, Garner hid under the bathroom sink, and

      Kellems attempted to conceal him by pushing baskets of clothes up against the

      sink.


[8]   Kellems eventually opened the door and allowed Officer Shadwick inside.

      Officer Shadwick asked Kellems where the other party was and she indicated

      that he had jumped out of the window. However, after looking at the window,

      Officer Shadwick discovered that the window had a locking mechanism that

      would not allow it to open widely enough for a person to fit through it.

      Concluding that the male he had heard from outside was still in the room,

      Officer Shadwick escorted Kellems outside. Officer Shadwick then saw an arm

      sticking out from under the sink and ordered Garner to come out. Garner

      refused to exit so Officer Shadwick grabbed Garner’s wrist to place a handcuff

      on it. Garner struggled against Officer Shadwick’s attempt to extract him and

      used his elbow to strike Officer Shadwick in the right eye. Despite the struggle,

      Officer Shadwick was able to place Garner under arrest. Then Officer

      Court of Appeals of Indiana | Memorandum Decision 62A04-1612-CR-2774 | July 5, 2017   Page 4 of 13
       Shadwick patted Garner down and found a pill bottle inside of Garner’s pocket.

       Inside of the bottle was a plastic bag containing 3.07 grams of

       methamphetamine.


[9]    During a search of the room, officers found two larger bags containing various

       drug paraphernalia. One of the bags—a bag with a Mickey Mouse design on

       it—contained a pill bottle with pseudoephedrine pills and lithium batteries.

       Inside the other bag, the police found a digital scale with white powder residue,

       a spoon with residue, various empty plastic bags, a grinder with white residue,

       another half of a grinder, rolling paper, and a notebook. Police seized $1100

       dollars from the room. Finally, a search of Garner and Kellems’s truck led to

       the discovery of three firearms in addition to the one that Garner had thrown

       out of the window.


[10]   Police also recovered the two mobile telephones that had been thrown out of

       the hotel room’s window. The mobile telephones had been used by Garner and

       Kellems. Text messages referencing methamphetamine deals were later

       extracted from the mobiles telephones.


[11]   On March 21, 2016, the State charged Garner with Level 3 felony conspiracy to

       commit dealing in methamphetamine, Level 5 felony conspiracy to commit

       possession of chemical reagents or precursors with intent to manufacture a

       controlled substance, Level 5 felony conspiracy to commit possession of

       methamphetamine, three counts of Level 6 felony conspiracy to commit

       possession of a controlled substance, Level 6 felony unlawful possession of a


       Court of Appeals of Indiana | Memorandum Decision 62A04-1612-CR-2774 | July 5, 2017   Page 5 of 13
       syringe, Level 6 felony conspiracy to commit maintaining a common nuisance,

       Level 6 felony unlawful possession of use of a legend drug, Level 5 felony

       battery against a public safety official, Class A misdemeanor resisting law

       enforcement, and four counts of Class C misdemeanor conspiracy to commit

       possession of paraphernalia. The prosecutor amended and dismissed some of

       the charges prior to Garner’s jury trial. On October 17 and 18, 2016, Garner

       was tried on Amended Count 1, conspiracy to commit dealing in

       methamphetamine, a Level 3 felony; Amended Count 2, possession of

       precursors with the intent to manufacture, a Level 5 felony; Amended Count 3,

       conspiracy to commit possession of methamphetamine, a Level 5 felony;

       Amended Count 7, unlawful possession of a syringe, a Level 6 felony;

       Amended Count 8, conspiracy to commit maintaining a common nuisance, a

       Level 6 felony; Amended Count 10, battery against a public safety official, a

       Level 5 felony; and Amended Count 11, resisting law enforcement, a Class A

       misdemeanor.


[12]   The jury acquitted Garner of Amended Count 2, possession of precursors;

       Amended Count 7, unlawful possession of a syringe; and Amended Count 10,

       battery against a public safety official. The jury convicted Garner of Amended

       Count 1, Level 3 felony conspiracy to commit dealing in methamphetamine;

       Amended Count 3, Level 5 felony conspiracy to possess methamphetamine;

       Amended Count 8, Level 6 felony conspiracy to maintain a common nuisance;

       and Amended Count 11, Class A misdemeanor resisting law enforcement. The

       trial court vacated Garner’s conviction for Amended Count 3, Level 5 felony


       Court of Appeals of Indiana | Memorandum Decision 62A04-1612-CR-2774 | July 5, 2017   Page 6 of 13
       conspiracy to commit possession of methamphetamine, due to double jeopardy

       concerns.


[13]   On November 16, 2016, the trial court sentenced Garner to fourteen years

       executed for his conspiracy to deal methamphetamine conviction. For

       conspiracy to maintain a common nuisance, the trial court imposed a two-year

       sentence to be served consecutive to the fourteen-year sentence. The trial court

       also imposed a one-year sentence for resisting law enforcement to be served

       concurrent with the other two sentences. Garner received an aggregate sixteen-

       year sentence.



                                  Discussion and Decision

                                       I. Actual Evidence
[14]   Garner’s first argument claims that his dual convictions for conspiracy to deal

       in methamphetamine and conspiracy to maintain a common nuisance cannot

       both stand. Garner supports his argument with a “one conspiracy, one

       conviction” rule and two cases—Perkins v. State, 483 N.E.2d 1379 (Ind. 1985)

       and Sharp v. State, 569 N.E.2d 962 (Ind. Ct. App. 1991)—decided before the

       establishment of the actual evidence test in Richardson v. State, 717 N.E. 2d 32

       (Ind. 1999). The State agrees with Garner’s contention that the conviction for

       conspiracy to maintaining a common nuisance should be vacated, but relies

       upon different case law. The State specifically argues that the conviction for

       conspiracy to maintain a common nuisance should be vacated and the case

       Court of Appeals of Indiana | Memorandum Decision 62A04-1612-CR-2774 | July 5, 2017   Page 7 of 13
       should be remanded for re-sentencing because the two convictions violate the

       actual evidence test from Richardson. Due to the fact that the State concedes

       that one of the convictions should be vacated, and the case law advanced by

       both parties leads to the same result, we vacate the conviction for conspiracy to

       maintain a common nuisance without needing to address whether Perkins and

       Sharp remain good law. Additionally, due to the vacated conviction, we reduce

       Garner’s sentence from sixteen years to fourteen years.



                                             II. Variance
[15]   Garner argues that there was a fatal variance between the charging information

       and the evidence presented at trial as to whether Garner possessed a firearm on

       the charged date. Pursuant to Indiana Code sections 35-48-1-16.5 and 35-48-4-

       1.1, possession of a firearm while a person is committing the offense is an

       enhancing circumstance. In Garner’s case, the existence of an enhancing

       circumstance raises the crime of dealing in methamphetamine from a Level 4

       felony to a Level 3 felony. Ind. Code § 35-48-1-16.5.


[16]   Under Indiana Code Section 35-34-1-2, an information “shall be a plain,

       concise, and definite written statement of the essential facts constituting the

       offense charged.” “The purpose of the charging information is to provide a

       defendant with notice of the crime of which he is charged so that he is able to

       prepare a defense.” Gilliland v. State, 979 N.E.2d 1049, 1060 (Ind. Ct. App.

       2012). “The State is under no obligation to include detailed factual allegations;

       rather, a charging information satisfies due process if it ‘enables an accused, the

       Court of Appeals of Indiana | Memorandum Decision 62A04-1612-CR-2774 | July 5, 2017   Page 8 of 13
       court, and the jury to determine the crime for which conviction is sought.’”

       Elvers v. State, 22 N.E.3d 824, 832 (Ind. Ct. App. 2014) (quoting Gilliland, 979

       N.E.2d at 1060).


[17]   Generally, the State must prove all of the material allegations in a charging

       information. Daniels v. State, 975 N.E.2d 1025, 1028 (Ind. Ct. App. 2011). “A

       variance is an essential difference between the allegations of the charging

       document and the proof at trial.” Id. at 1030. A variance is material if one of

       two conditions is satisfied. First, the defendant must have been “misled by the

       variance in the evidence from the allegations and specifications in the charge in

       the preparation and maintenance of his defense, and … was harmed or

       prejudiced thereby.” Id. Second, there is a risk of a double jeopardy violation

       in a future criminal proceeding covering the same event, facts and evidence. Id.

       “Put another way, if the variance either misleads the defendant in the

       preparation of his defense resulting in prejudice or leaves the defendant

       vulnerable to double jeopardy in a future criminal proceeding covering the same

       event and evidence, then the variance is fatal.” Broude v. State, 956 N.E.2d 130,

       136 (Ind. Ct. App. 2011).


[18]   The State charged:

               On or about March 16, 2016 at 234 Orchard Hill Drive, Tell
               City, in Perry County, State of Indiana, Brandon L. Garner did
               knowingly or intentionally conspire to possess with the intent to
               deliver methamphetamine, pure or adultered, said
               methamphetamine weighing at least 1 gram, but less than 5
               grams and while the said Brandon L[.] Garner was in possession

       Court of Appeals of Indiana | Memorandum Decision 62A04-1612-CR-2774 | July 5, 2017   Page 9 of 13
                of a firearm and did perform an overt act in furtherance of the
                conspiracy, to-wit: did meet with Alicia D[.] Kellems while he
                physically possessed a quantity of narcotics and she physically
                possessed tools for measuring, packaging and distributing
                narcotics.


       App. Vol. II, p. 49. Garner argues that at trial the State merely presented

       evidence that he possessed a firearm while dealing sometime during the two-

       and-a-half months prior to March 16, 2016 as opposed to on March 16, 2016.

       Specifically, Garner argues that the State did not present evidence that he

       possessed the firearms found in the truck in the motel parking lot on March 16,

       2016. Garner also asserts that the State did not present evidence that Garner

       was aware that there was a gun in the motel room on March 16, 2016. In

       “expanding” the time period during which he allegedly possessed the gun,

       Garner argues that he was misled and confused as to what criminal activity he

       needed to prepare a defense for.1 Appellant’s Br. p. 17.



[19]   Contrary to Garner’s contention, the State presented evidence that Garner

       actually possessed a firearm on the charged date. When Officer Shadwick

       knocked on the hotel room door on March 16, 2016, Kellems testified that she




       1
        Garner also appears to make an argument regarding a jury instruction. The instruction at issue said: “The
       State is not required to prove that the crime charged was committed on the particular date or during a
       particular time period alleged in the information.” App. Vol. III, p. 93; Tr. Vol. II, p. 176. As Garner did
       not challenge the instruction prior to this appeal, the issue is waived. See Griffin v. State, 16 N.E.3d 997 (Ind.
       Ct. App. 2014).

       Court of Appeals of Indiana | Memorandum Decision 62A04-1612-CR-2774 | July 5, 2017                  Page 10 of 13
       passed the firearm to Garner who then threw it out of the window. This

       testimony is consistent with fact that officers found a loaded handgun directly

       below the window along with Kellems’s and Garner’s telephones. This is

       evidence that Garner actually possessed a firearm on the date the State charged

       him with being in possession of a handgun while conspiring to deal.

       Consequently, Garner has failed to establish any fatal variances between the

       proof and pleading.



              III. Was Garner’s Sentence Inappropriate
[20]   Under Indiana Appellate Rule 7(B), “[t]he Court 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.” When reviewing such claims, we

       “concentrate less on comparing the facts of the [case at issue] to others, whether

       real or hypothetical, and more on focusing on the nature, extent, and depravity

       of the offense for which the defendant is being sentence, and what it reveals

       about the defendant’s character.” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct.

       App. 2008) (internal quotes and citations omitted). Garner, as the defendant,

       bears the burden of persuading us that his sentence is inappropriate. Sanchez v.

       State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008). Garner was originally

       sentenced to an aggregate sentence of sixteen years for his three convictions.

       However, due to the fact that we vacated one of his convictions, his sentence

       has been reduced to fourteen years.


       Court of Appeals of Indiana | Memorandum Decision 62A04-1612-CR-2774 | July 5, 2017   Page 11 of 13
[21]   With respect to the nature of his offenses, Garner was involved in a drug-

       dealing conspiracy whose scope and activities went far beyond the need to

       satisfy Garner’s own desire to use the drugs. Kellems testified that the

       “majority” of the drugs that they routinely bought from Louisville were sold.

       Tr. Vol. II, p. 99. Any remaining drugs were then consumed by Garner and

       Kellems.


[22]   Garner argues that he was not dealing in methamphetamine to make a profit.

       Kellems, however, testified that she and Garner bought a truck to further their

       operation, and purchased guns to protect themselves while they were traveling

       across state lines to buy large quantities of methamphetamine. This evidence

       supports a conclusion that Garner was dealing to make a profit. Given the

       nature of his offense, a fourteen-year sentence does not seem inappropriate.


[23]   Garner’s argument regarding his character also fails to show that his sentence is

       inappropriate.2 By the age of 23, Garner had accumulated adult convictions for

       burglary, possession of a synthetic drug, possession of paraphernalia, and

       intimidation and two convictions for battery resulting in bodily injury. As for

       his juvenile record, Garner was found to have committed theft twice, burglary,

       escape, battery resulting in bodily injury, resisting law enforcement, and

       criminal mischief. Moreover, Garner was already on parole and had been




       2
         Garner also claims that he has mental health issues that should be considered as a mitigating factor. There
       is no evidence from a medical professional to support such claim. Therefore, the trial court was entitled to
       disregard such claims during sentencing.

       Court of Appeals of Indiana | Memorandum Decision 62A04-1612-CR-2774 | July 5, 2017             Page 12 of 13
       sanctioned twice for parole violations at the time that the current offense was

       committed. Garner has not carried his burden to prove that his sentence was

       inappropriate in light of his character.



                                               Conclusion
[24]   In sum, we conclude that the conspiracy to maintain a common nuisance

       conviction must be vacated because Garner’s two conspiracy convictions

       violated the actual evidence test in Richardson and his sentence should be

       reduced to fourteen years. We also hold that there was not a fatal variance

       between pleading and proof as to whether Garner possessed a firearm on the

       charged date. Finally, we conclude that Garner has failed to establish that his

       sentence is inappropriate in light of the nature of his offenses and his character.

       Thus, we reverse in part and affirm in part.


       Najam, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 62A04-1612-CR-2774 | July 5, 2017   Page 13 of 13
