MEMORANDUM DECISION
                                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),                                      Apr 18 2017, 9:19 am
this Memorandum Decision shall not be                                           CLERK
regarded as precedent or cited before any                                   Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court
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
Matthew J. McGovern                                      Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana

                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Le Gia Hoang,                                            April 18, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         22A01-1610-CR-2329
        v.                                               Appeal from the Floyd Superior
                                                         Court
State of Indiana,                                        The Honorable Maria D. Granger,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         22D03-1409-F5-1711



Altice, Judge.


                                          Case Summary

Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2329 | April 18, 2017               Page 1 of 12
[1]   Le Gia Hoang appeals following his convictions for Level 5 felony dealing in

      marijuana and Level 6 felony maintaining a common nuisance. He raises a

      number of issues on appeal, which we restate as follows:


              1. Did the trial court abuse its discretion by instructing the jury
              on accomplice liability?


              2. Did the State present sufficient evidence to support Hoang’s
              dealing conviction?


              3. Did the trial court abuse its sentencing discretion by
              considering Hoang’s age to be an aggravating circumstance?


              4. Is Hoang’s sentence inappropriate in light of the nature of the
              offenses and his character?


[2]   We affirm.


                                       Facts & Procedural History


[3]   On September 26, 2014, law enforcement went to Holland Freight Company in

      Jeffersonville to investigate a tip they had received regarding a suspicious

      package bound for an address in Louisville. A police canine alerted the officers

      to the presence of drugs in the package in question. Officers from three separate

      law enforcement agencies then set up surveillance at the freight facility. They

      watched as an individual later identified at Lucky Siharath arrived in a white

      Chevrolet pickup truck and retrieved the package. Officers followed the truck

      as it left the freight facility and travelled to a residence in New Albany.



      Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2329 | April 18, 2017   Page 2 of 12
[4]   At the residence, the truck backed into an open garage. Two officers then

      approached Siharath, showed their badges, and identified themselves as police

      officers. At that time, Hoang entered the garage through an interior door

      leading into the residence. One of the officers asked Hoang if he could speak to

      him, but Hoang quickly went back into the house. Officers attempted to regain

      contact with Hoang by knocking on the door and windows, but he did not

      come back outside until about ten or fifteen minutes later. Hoang told the

      officers that he rented the house and agreed to allow them to check inside.

      When officers entered the residence to perform a protective sweep, they

      encountered a very strong odor of marijuana and observed a number of items

      associated with marijuana processing located in plain view. Officers then

      obtained a search warrant for the house and for the package retrieved from the

      freight facility.


[5]   In the freight package, police found several vacuum-sealed bags containing a

      total of over twenty pounds of marijuana hidden among various restaurant

      supplies. Inside the residence, police discovered what one officer described as

      “a marijuana operation.” Transcript Vol. 2 at 172. In the only bedroom, police

      found a vacuum sealer, a handgun, a drug ledger, and clothing consistent with

      Hoang’s size, but not Siharath’s. They also found a suitcase with $27,400 in

      cash hidden inside the lining. In a bathroom, police found another vacuum

      sealer, a digital scale, a jar containing marijuana, two small bags of marijuana,

      and a shoebox containing a small amount of marijuana and drug paraphernalia.

      Also in the house, the police found fifteen to twenty large plastic buckets that


      Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2329 | April 18, 2017   Page 3 of 12
      are commonly used to ship marijuana, vacuum-sealed bags that had been cut

      open and emptied, and a large plastic bin or cooler with a small amount of

      marijuana in the bottom. Officers also located a cashier’s check for $7,200

      bearing Hoang’s name as the purchaser, as well as title certificate for the pickup

      truck Siharath had been driving, which listed Hoang as the owner of the

      vehicle. In the garage, police found a vacuum-sealed bag containing $12,000 in

      cash and empty boxes identical to the ones in the freight that Siharath had

      picked up that day. Additionally, when Hoang was booked into jail later that

      day, jail officers found a number of money orders in Hoang’s pocket or wallet

      and hidden in his shoe.


[6]   As a result of these events, the State charged Hoang with Level 5 felony dealing

      in marijuana and Level 6 felony maintaining a common nuisance. Following a

      jury trial, Hoang was found guilty as charged. On September 12, 2016, the trial

      court sentenced Hoang to serve an aggregate four-and-a-half-year executed

      term. Hoang now appeals.


                                          Discussion & Decision

                                               1. Jury Instruction


[7]   Hoang first argues that the trial court abused its discretion when it instructed

      the jury on accomplice liability. “Instructing a jury is left to the sound

      discretion of the trial court, and we review its decision only for an abuse of

      discretion.” Patterson v. State, 11 N.E.3d 1036, 1040 (Ind. Ct. App. 2014). “In

      reviewing a trial court's decision to give a tendered jury instruction, we consider

      Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2329 | April 18, 2017   Page 4 of 12
      (1) whether the instruction correctly states the law, (2) is supported by the

      evidence in the record, and (3) is not covered in substance by other

      instructions.” Munford v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010).


[8]   Hoang argues that the trial court abused its discretion in instructing the jury on

      accomplice liability because there was no evidence in the record to support such

      an instruction. The accomplice liability statute provides that “[a] person who

      knowingly or intentionally aids, induces, or causes another person to commit

      an offense commits that offense[.]” Ind. Code § 35-41-2-4. Thus, there is no

      distinction under Indiana law between the responsibility of a principal and an

      accomplice. Wise v. State, 719 N.E.2d 1192, 1198 (Ind. 1999). Factors

      considered by the fact-finder to determine whether a defendant aided another in

      the commission of a crime include: “(1) presence at the scene of the crime; (2)

      companionship with another engaged in criminal activity; (3) failure to oppose

      the crime; and (4) a defendant’s conduct before, during, and after the

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

      2004), trans. denied. Although a defendant’s mere presence or lack of opposition

      to a crime is insufficient standing alone to establish accomplice liability, they

      may be considered along with the other factors to determine participation. Id.

      “If there is some evidence that a second party was involved in the crime, an

      instruction on accomplice liability is proper.” Wise, 719 N.E.2d at 1198.


[9]   Hoang’s argument essentially asks us to view each piece of evidence in

      isolation, which we will not do. When taken together, the evidence in this case

      was more than sufficient to support an instruction on accomplice liability.

      Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2329 | April 18, 2017   Page 5 of 12
Siharith used a pickup truck belonging to Hoang to pick up a package

containing over twenty pounds of vacuum-sealed marijuana. Siharath then

delivered the package to a residence that Hoang admitted he was renting.

When Siharath arrived with the package, the garage door was open and Hoang

came outside to meet him. When officers approached him, Hoang quickly

went back inside and did not come out for ten to fifteen minutes, even though

officers were knocking on the doors and windows. The inside of the residence

smelled strongly of marijuana and was littered with items associated with

dealing in marijuana, including two vacuum sealers, a drug ledger, a digital

scale, numerous plastic buckets that are commonly used to ship marijuana,

vacuum-sealed bags that had been cut open and emptied, a large plastic bin or

cooler with a small amount of marijuana in the bottom, and a handgun. Police

also found almost $40,000 in cash, $12,000 of which was in a vacuum-sealed

bag, which officers testified is typically done by drug traffickers in an attempt to

mask the scent of the currency. Police also found drug paraphernalia, two

small bags of marijuana, a jar of marijuana, and documents bearing Hoang’s

name, including a cashier’s check for $7,200. Furthermore, when Hoang was

booked into jail, he had a number of money orders hidden on his person. This

evidence permits a reasonable inference that Hoang was Siharath’s accomplice

in carrying out a marijuana dealing operation at the residence. Accordingly, an

instruction on accomplice liability was clearly warranted.

                                  2. Sufficiency of the Evidence




Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2329 | April 18, 2017   Page 6 of 12
[10]   Hoang also argues that the State presented insufficient evidence to support his

       conviction for dealing in marijuana. In reviewing a challenge to the sufficiency

       of the evidence, we neither reweigh the evidence nor judge the credibility of

       witnesses. Atteberry v. State, 911 N.E.2d 601, 609 (Ind. Ct. App. 2009). Instead,

       we consider only the evidence supporting the conviction and the reasonable

       inferences flowing therefrom. Id. If there is substantial evidence of probative

       value from which a reasonable trier of fact could have drawn the conclusion

       that the defendant was guilty of the crime charged beyond a reasonable doubt,

       the judgment will not be disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137

       (Ind. Ct. App. 2008). It is not necessary that the evidence overcome every

       reasonable hypothesis of innocence; rather, the evidence is sufficient if an

       inference may reasonably be drawn from it to support the conviction. Drane v.

       State, 867 N.E.2d 144, 147 (Ind. 2007).


[11]   In order to support Hoang’s dealing conviction, the State was required to prove

       that Hoang—as either a principal or an accomplice—knowingly or intentionally

       possessed at least ten pounds of marijuana with intent to deliver. See Ind. Code

       § 35-48-4-10. Hoang’s arguments on appeal are nothing more than requests to

       reweigh the evidence, which we will not do. The evidence summarized above

       is more than sufficient to support Hoang’s conviction for dealing in marijuana

       as either a principal or an accomplice.

                                       3. Age as a Sentencing Aggravator




       Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2329 | April 18, 2017   Page 7 of 12
[12]   Next, Hoang argues that the trial court abused its discretion by considering his

       age to be an aggravating factor. Sentencing decisions rest within the sound

       discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),

       clarified on reh’g, 875 N.E.2d 218. So long as the sentence is within the statutory

       range, it is subject to review only for an abuse of discretion. Id. A trial court

       may abuse its sentencing discretion in a number of ways, including entering a

       sentencing statement that includes aggravating factors that are improper as a

       matter of law. Id. at 490-91. Even if the trial court is found to have abused its

       discretion in sentencing the defendant, “the sentence will be upheld if it is

       appropriate in accordance with Indiana Appellate Rule 7(B).” Felder v. State,

       870 N.E.2d 554, 558 (Ind. Ct. App. 2007) (citing Windhorst v. State, 868 N.E.2d

       504, 507 (Ind. 2007)).


[13]   Hoang was sixty-seven years old at the time of sentencing. The trial court

       mentioned Hoang’s age in both its written and oral sentencing statements. In

       its oral sentencing statement, the trial court stated that Hoang’s age indicated

       that “there’s not a lot of forming left for [him] to do.” Transcript Vol. 3 at 228.

       In its written sentencing order, the trial court indicated that it found Hoang’s

       likelihood of reoffending, based upon the fact that previous contacts with law

       enforcement for similar conduct have not deterred his criminal involvement, to

       be an aggravating circumstance. The court found no mitigating circumstances

       and reasoned that Hoang’s “active and continued involvement in the illicit

       marijuana trade has occurred in his mature years as an adult, and as the




       Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2329 | April 18, 2017   Page 8 of 12
       aggravating circumstances outweigh the mitigating circumstances, this Court

       shall impose an aggravated sentence.” Appellant’s Appendix Vol. 2 at 196.


[14]   Even if we assume that it would have been improper for the trial court to

       consider Hoang’s age to be an aggravating factor, the trial court’s references to

       Hoang’s age do not indicate that it did so. Rather, they indicate that the trial

       court found that Hoang’s actions could not be chalked up to immaturity; in

       other words, his age was not a mitigating factor. We therefore cannot conclude

       that the trial court abused its discretion by considering an improper aggravating

       circumstance. In any event, even if the trial court had abused its discretion in

       this or another way, remand for resentencing would not be warranted because,

       as we explain below, Hoang’s sentence is not inappropriate.

                                            4. Inappropriate Sentence


[15]   Hoang also argues that his four-and-a-half-year executed sentence is

       inappropriate in light of the nature of the offense and his character. Article 7,

       section 4 of the Indiana Constitution grants our Supreme Court the power to

       review and revise criminal sentences. See Knapp v. State, 9 N.E.3d 1274, 1292

       (Ind. 2014), cert. denied, 135 S.Ct. 978 (2015). Pursuant to Ind. Appellate Rule

       7, the Supreme Court authorized this court to perform the same task. Cardwell

       v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Per App. R. 7(B), we may revise a

       sentence “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.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014)


       Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2329 | April 18, 2017   Page 9 of 12
       (quoting App. R. 7). “Sentencing review under Appellate Rule 7(B) is very

       deferential to the trial court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012).

       Hoang bears the burden on appeal of persuading us that his sentence is

       inappropriate. See id.


[16]   The determination of whether we regard a sentence as inappropriate “turns on

       our sense of the culpability of the defendant, the severity of the crime, the

       damage done to others, and myriad other factors that come to light in a given

       case.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell, 895

       N.E.2d at 1224). Moreover, “[t]he principal role of such review is to attempt to

       leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). It is

       not our goal in this endeavor to achieve the perceived “correct” sentence in

       each case. Knapp, 9 N.E.3d at 1292. Accordingly, “the question under

       Appellate Rule 7(B) is not whether another sentence is more appropriate; rather,

       the question is whether the sentence imposed is inappropriate.” King v. State,

       894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in original).


[17]   In order to assess the appropriateness of a sentence, we first look to the

       statutory range established for the classification of the relevant offenses. Hoang

       was convicted of Level 5 felony dealing in marijuana and Level 6 felony

       maintaining a common nuisance. The sentencing range for a Level 5 felony is

       one to six years, with an advisory sentence of three years. I.C. § 35-50-2-6. The

       sentencing range for a Level 6 felony is six months to two and a half years, with

       an advisory sentence of one year. I.C. § 35-50-2-7. Hoang was sentenced to

       four and half years executed for his dealing conviction and one and half years

       Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2329 | April 18, 2017   Page 10 of 12
       executed for maintaining a common nuisance. The sentences were ordered to

       be served concurrently, for an aggregate sentence of four and a half years

       executed.


[18]   Considering the nature of the offense, we note that the evidence presented at

       trial supports a conclusion that Hoang was involved in an ongoing, large-scale

       drug operation at the residence he rented. In addition to the over twenty

       pounds of marijuana discovered in the package Siharath retrieved from the

       freight company, the residence contained numerous items associated with

       marijuana trafficking, including a drug ledger, a digital scale, two vacuum

       sealers, vacuum-sealed bags that had been cut open and emptied, a large bin or

       cooler with a small amount of marijuana in the bottom, numerous plastic

       buckets commonly used to ship marijuana, a handgun, and nearly $40,000 in

       cash. In short, the nature of the offense in this case supports the sentence

       imposed.


[19]   Considering the character of the offender, we note that this is not Hoang’s first

       marijuana-related conviction. In 2006, Hoang was charged in California with

       conspiracy to commit possession of marijuana for sale and ultimately convicted

       of a felony possession charge. Additionally, evidence presented at sentencing

       established that Hoang had twice had large amounts of cash seized by the

       federal Drug Enforcement Agency at the Oakland International Airport after

       disembarking flights from Louisville. Specifically, $186,920 was seized in in

       March 2013 and $43,950 was seized in November 2015—well after the offenses

       at issue in this case. This evidence supports an inference that Hoang has

       Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2329 | April 18, 2017   Page 11 of 12
       participated in a drug trafficking operation spanning multiple states and has not

       been deterred despite repeated contacts with the criminal justice system.

       Accordingly, we cannot conclude that his sentence of four and a half years

       executed is inappropriate.


[20]   Judgment affirmed.


[21]   Riley, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2329 | April 18, 2017   Page 12 of 12
