FOR PUBLICATION
ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

JOEL C. WIENEKE                             GREGORY F. ZOELLER
Wieneke Law Office, LLC                     Attorney General of Indiana
Greencastle, Indiana
                                            IAN MCLEAN

                                                                          FILED
                                            Deputy Attorney General
                                            Indianapolis, Indiana
                                                                      Jan 25 2012, 8:49 am


                                                                             CLERK
                             IN THE                                        of the supreme court,
                                                                           court of appeals and
                                                                                  tax court


                   COURT OF APPEALS OF INDIANA

NATALIE E. MURRELL,                         )
                                            )
      Appellant-Defendant,                  )
                                            )
             vs.                            )    No. 67A01-1106-CR-251
                                            )
STATE OF INDIANA,                           )
                                            )
      Appellee-Plaintiff.                   )


                    APPEAL FROM THE PUTNAM CIRCUIT COURT
                       The Honorable Matthew L. Headley, Judge
                            Cause No. 67C01-1101-FC-1


                                  JANUARY 25, 2012

                             OPINION - FOR PUBLICATION

BARTEAU, Senior Judge
                              STATEMENT OF THE CASE

       Defendant-Appellant Natalie E. Murrell appeals her two convictions of attempted

trafficking with an inmate, one as a Class C felony and one as a Class A misdemeanor,

Ind. Code § 35-44-3-9 (2009), and the sentence imposed upon those convictions. We

affirm in part and remand in part.

                                         ISSUES

       Murrell raises three issues, which we restate as:

       I.     Whether the finder of fact erred by rejecting Murrell’s defense of duress.

       II.    Whether the penalty for Murrell’s Class C felony conviction violates
              Article I, Section 16 of the Indiana Constitution (“the proportionality
              clause”).

       III.   Whether the case should be remanded to clarify Murrell’s sentence.

                        FACTS AND PROCEDURAL HISTORY

       On January 1, 2011, Murrell came to the Putnamville Correctional Facility (“the

prison”) to visit inmate Willie Davis. Murrell is the aunt of two of Davis’ children.

Murrell set off security devices as she attempted to enter the prison. During questioning

by a correctional officer, Murrell admitted that she had contraband on her person and

turned over four cellular telephones and a bag of tobacco.

       The State charged Murrell with two counts of attempted trafficking with an

inmate. The Class C felony charge addressed the cellular telephones, and the Class A

misdemeanor charge focused on the tobacco. The case was tried to the bench. At trial,

Murrell conceded that she brought the contraband to the prison to give to Davis. She

asserted a defense of duress, claiming that persons unknown to her had called her and

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threatened her with harm if she did not deliver the contraband to Davis. The trial court

determined that Murrell was guilty and subsequently sentenced her to three years on the

Class C felony conviction and one year on the Class A misdemeanor conviction, with all

but one hundred and eighty days suspended to probation. This appeal followed.

                            DISCUSSION AND DECISION

                                       I. DURESS

       Murrell argues that she presented sufficient evidence to support her defense of

duress and that the State failed to rebut her defense. When reviewing a claim that the

State has failed to present sufficient evidence to rebut a defense, we apply the same

standard as to other challenges to the sufficiency of the evidence. Gallagher v. State, 925

N.E.2d 350, 353 (Ind. 2010). A conviction must be affirmed if the probative evidence

and reasonable inferences drawn from the evidence could have allowed a reasonable trier

of fact to find the defendant guilty beyond a reasonable doubt. Id. We consider only the

probative evidence and reasonable inferences supporting the judgment. Joslyn v. State,

942 N.E.2d 809, 811 (Ind. 2011).

       Duress is a defense provided by statute. The governing statute provides:

       It is a defense that the person who engaged in the prohibited conduct was
       compelled to do so by threat of imminent serious bodily injury to himself or
       another person. With respect to offenses other than felonies, it is a defense
       that the person who engaged in the prohibited conduct was compelled to do
       so by force or threat of force. Compulsion under this section exists only if
       the force, threat, or circumstances are such as would render a person of
       reasonable firmness incapable of resisting the pressure.

Ind. Code § 35-41-3-8 (1977). The compulsion that will excuse a criminal act must be

clear and conclusive. Love v. State, 271 Ind. 473, 393 N.E.2d 178, 179 (1979). Such

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compulsion must arise without the negligence or fault of the defendant who claims this

defense. Id. Furthermore, the alternative with which the defendant is faced must be

instant and imminent. Id.

      In this case, on December 31, 2010, Davis called Murrell and asked her to bring

him cellular telephones and tobacco or his fellow inmates would stab him. Davis gave

Murrell’s telephone number to unidentified individuals, who called Murrell several times

on that day and threatened to “have somebody mess [her] up” unless she brought

contraband to the prison. Tr. p. 14. One of the individuals who had called Murrell had

also promised to pay for her medicine. Pursuant to the telephone calls, Murrell met with

an unknown person at a liquor store at 10:00 p.m. on December 31, 2010, and the person

gave her the cellular telephones and tobacco. The next day, Murrell went to the prison

and was caught as she attempted to enter.

      We conclude that the trial court did not err by rejecting Murrell’s defense of

duress. She was threatened, but she was also promised that she would receive money for

medicine in exchange for delivering the contraband. Given this evidence of a potential

reward to Murrell, we cannot say that the compulsion she faced was clear and conclusive.

Furthermore, even if the threats were valid, the threatened harm to Murrell’s person was

no longer imminent by the time she arrived at the prison. She could have contacted the

police for help at any time after she received the contraband and before going to the

prison the next day, and she failed to do so. Murrell’s argument is a request to reweigh

the evidence, which we cannot do. See Hensley v. State, 583 N.E.2d 758, 761 (Ind. Ct.

App. 1991) (determining that the evidence did not support a defendant’s defense of

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duress where the threatened harm was not imminent; the defendant had ample time to

seek help from the authorities before he left the state, thereby violating a condition of his

probation). We find no error.

                            II. PROPORTIONAL PENALTY

       Murrell argues that her Class C felony conviction for attempted trafficking of

cellular telephones to Davis is disproportionately harsh and violates the proportionality

clause of the Indiana Constitution.      That section provides, “All penalties shall be

proportioned to the nature of the offense.” Ind. Const. art. I, § 16. Our review under the

proportionality clause of a legislatively-sanctioned penalty is very deferential. State v.

Moss-Dwyer, 686 N.E.2d 109, 111 (Ind. 1997).           We begin with a presumption of

constitutional validity, and therefore the party challenging the statute labors under a

heavy burden to show that the statute is unconstitutional. Id. at 112. We will not disturb

the legislative determination of the appropriate penalty for criminal behavior except upon

a showing of clear constitutional infirmity. Id. at 111-12. A legislatively-determined

penalty will be deemed unconstitutional by reason of its length only if it is so severe and

entirely out of proportion to the gravity of the offense committed as to shock public

sentiment and violate the judgment of reasonable people. Foreman v. State, 865 N.E.2d

652, 655 (Ind. Ct. App. 2007), trans. denied.

       A person who knowingly or intentionally delivers an article to an inmate without

prior authorization from a prison official commits a Class A misdemeanor. Ind. Code §

35-44-3-9. However, the offense is elevated to a Class C felony if the article in question

is a controlled substance, a deadly weapon, or “a cellular telephone or other wireless or

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cellular communications device.” Id. At the time Murrell committed her crimes, the

advisory sentence for a Class C felony was four years, with a minimum of two years and

a maximum of eight years. Ind. Code § 35-50-2-6 (2005).

       Murrell’s proportionality claim has two aspects. First, she argues that assigning

Class C felony status to trafficking in cellular telephones as well as to trafficking in

controlled substances and deadly weapons is disproportionate because “cellular

telephones are inherently benign. They can be used to facilitate nefarious acts, but unlike

deadly weapons and controlled substances, they do not pose any inherent danger.”

Appellant’s Br. pp. 4-5. Thus, because cellular telephones are not as dangerous as

weapons or controlled substances, Murrell contends, it is constitutionally inappropriate to

impose the same penalty for those items.

       We find this Court’s opinion in Foreman to be instructive. In that case, Foreman

was convicted of disclosure of confidential information relating to the lottery, a Class A

felony. On appeal, Foreman argued that his crime should not have been punished as a

Class A felony because the penalty range was not proportional to the nature of the

offense. Specifically, Foreman contended that his crime was not a threat to public safety

like other Class A felonies, including crimes of violence or drug trafficking. This Court

disagreed, noting that Foreman’s disclosure of confidential lottery information had the

potential to undermine public confidence in the lottery and to hinder the generation of

revenue for the state. Furthermore, such a crime is difficult to detect, which justifies a

higher penalty for the sake of deterrence. Based upon these considerations, this Court



                                            6
concluded that the penalty imposed upon Foreman was not disproportionate even though

his crime was dissimilar to other Class A felony offenses. Foreman, 865 N.E.2d at 659.

      Here, we cannot conclude that Murrell’s Class C felony conviction for attempting

to provide cellular telephones to an inmate violates the proportionality clause. The

presence of cellular telephones in a prison undermines discipline and can facilitate other

misconduct. Furthermore, inmates with cellular telephones can direct criminal activity

from behind bars, thereby defeating the purpose of removing convicted criminals from

society to serve their sentences. See United States v. Byers, 649 F.3d 197, 203 (4th Cir.

2011) (affirming the convictions of an incarcerated individual who had used a contraband

cellular telephone to arrange the murder of a witness against him in a pending case), cert.

denied, 132 S.Ct. 468 (2011). Based on these considerations, we cannot conclude that

Murrell’s punishment for a Class C felony is disproportionate merely because trafficking

in cellular telephones is treated similarly to trafficking in controlled substances and

weapons. See Foreman, 865 N.E.2d at 659.

      Next, Murrell contends that her punishment violates the proportionality clause

because she is being punished much more severely for trafficking in cellular telephones

than an inmate would be punished for possessing a cellular telephone. Murrell notes that

an inmate who possesses a cellular telephone in a county jail is guilty of a Class A

misdemeanor, Ind. Code § 35-44-3-9.6 (2010), but no statute directly addresses inmates

at state prisons who possess cellular telephones. Thus, she contends, her Class C felony

conviction is unconstitutional because inmates who would use the telephones for criminal

ends are punished less severely than the people who merely bring them to the prison. We

                                            7
disagree. It would be difficult, if not impossible, for an incarcerated person to possess a

cellular telephone if a visitor did not bring one into the prison. Therefore, the legislature

could have reasonably decided it is easier to deter contraband by punishing most harshly

those who attempt to bring contraband into a prison. We cannot conclude that punishing

Murrell for trafficking in cellular telephones more severely than an inmate would be

punished for possessing the same item is so severe and entirely out of proportion to the

gravity of the offense committed as to shock public sentiment and violate the judgment of

reasonable people. Therefore, Murrell’s proportionality clause claim is without merit.

                                    III. SENTENCING

       Murrell notes that at her sentencing hearing, the trial court stated that the sentences

for her Class C felony conviction and her Class A misdemeanor conviction would be

served concurrently, but in the final order, the trial court ordered her to serve her

sentences consecutively. Murrell contends that we should instruct the trial court to

clarify that her sentences are to be served concurrently. The State agrees that the case

should be remanded for clarification but does not express an opinion as to whether

concurrent or consecutive sentences are appropriate.

       The approach employed by Indiana appellate courts in reviewing sentences in non-

capital cases is to examine both the written and oral sentencing statements to discern the

findings of the trial court. McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007). Rather

than presuming the superior accuracy of the oral statement, we examine it alongside the

written sentencing statement to assess the conclusions of the trial court. Id. This Court



                                              8
has the option of crediting the statement that accurately pronounces the sentence or

remanding for resentencing. Id.

      In this case, neither the trial court’s oral sentencing statement nor the written

sentencing order identifies any grounds that would support the imposition of consecutive

sentences. In the absence of such grounds, the trial court’s oral statement ordering

Murrell to serve concurrent sentences is more appropriate. Consequently, we remand

with instructions for the trial court to correct its written sentencing order to impose

concurrent sentences upon Murrell’s convictions.

                                    CONCLUSION

      We affirm Murrell’s convictions but remand for correction of her sentence.

      Affirmed in part and remanded in part.

NAJAM, J., and BROWN, J., concur.




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