                                                                  Aug 19 2015, 9:24 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                        Gregory F. Zoeller
Indianapolis, Indiana                                      Attorney General of Indiana
                                                           Monika Prekopa Talbot
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Tracy D. Guffey,                                          August 19, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          21A01-1410-CR-446
        v.                                                Appeal from the Fayette Circuit
                                                          Court

State of Indiana,                                         Trial Court Cause No.
                                                          21C01-1210-FA-843
Appellee-Plaintiff.
                                                          The Honorable Beth Ann Butsch,
                                                          Judge




Pyle, Judge.




Court of Appeals of Indiana | Opinion 21A01-1410-CR-446 | August 19, 2015                Page 1 of 24
                                             Statement of the Case
[1]   Following a jury trial, Guffey was convicted of: (1) Class A felony conspiracy

      to commit child molesting;1 (2) Class A felony aiding, inducing, or causing

      attempted child molesting;2 (3) Class C felony conspiracy to commit child

      molesting,3 (4) Class C felony aiding, inducing, or causing attempted child

      molesting;4 and (5) Class B felony aiding, inducing, or causing attempted

      incest.5 The jury also determined that he was an habitual offender. 6


[2]   While incarcerated in the county jail, Tracy D. Guffey (“Guffey”) made phone

      calls to his girlfriend. During these phone calls, which were recorded by the

      jail, Guffey encouraged his girlfriend to have sex with her twelve-year-old son

      so that she could make sure that he was not gay and told her to give her son

      alcohol prior to having sex so that he would be more comfortable. When the

      State moved to admit sixteen of these recorded jail telephone calls into evidence

      at trial, Guffey objected to fifteen of the calls.




      1
       IND. CODE §§ 35-42-4-3(a)(1); 35-41-5-2. We note that, effective July 1, 2014, a new version of the child
      molesting statute was enacted and that Class A felony child molesting is now a Level 1 felony. Because
      Guffey committed his crime in October 2012, we will apply the statute in effect at that time.
      2
          I.C. §§ 35-42-4-3(a)(1); 35-41-2-4; 35-41-5-1.
      3
        I.C. §§ 35-42-4-3(b); 35-41-5-2. Pursuant to the 2014 version of the child molesting statute, this Class C
      felony child molesting offense is now a Level 4 felony.
      4
          I.C. §§ 35-42-4-3(b); 35-41-2-4; 35-41-5-1.
      5
        I.C. §§ 35-46-1-3; 35-41-2-4; 35-41-5-1. Pursuant to the 2014 version of the incest statute, this Class B felony
      incest offense is now a Level 4 felony.
      6
          I.C. § 35-50-2-8.


      Court of Appeals of Indiana | Opinion 21A01-1410-CR-446 | August 19, 2015                            Page 2 of 24
[3]   On appeal, Guffey challenges the trial court’s admission of these fifteen

      recordings, argues that his convictions and sentences violate the actual evidence

      test of the Indiana Double Jeopardy Clause, and contends that there is

      insufficient evidence to support his convictions.


[4]   Because the record before us reveals that the trial court entered judgment of

      convictions on Counts II and IV before merging those convictions and that it

      also entered a separate sentence on Guffey’s habitual offender determination

      instead of enhancing one of his sentences, we remand to the trial court with

      instructions to correct these irregularities. We also conclude that the trial court

      did not abuse its discretion by admitting the fifteen recorded jail phone calls

      because they were relevant to show Guffey’s plan and preparation as they

      related to his conspiracy to commit child molesting charge. Additionally, as the

      State concedes, the evidence shows a reasonable possibility that Guffey’s

      remaining convictions on Counts I, III, and V were based on the same actual

      evidence, we remand to the trial court to vacate Counts III and V and instruct

      that trial court that it may resentence Guffey on Count I. Lastly, we conclude

      that there was sufficient evidence to support Guffey’s Class A felony conspiracy

      to commit child molesting as charged in Count I.


[5]   We affirm in part, reverse in part, and remand.


                                                      Issues
              1. Whether the trial court abused its discretion by admitting into
              evidence recorded jail telephone conversations between Guffey
              and his co-conspirator.

      Court of Appeals of Indiana | Opinion 21A01-1410-CR-446 | August 19, 2015   Page 3 of 24
              2. Whether Guffey’s convictions violate the Indiana
              Constitutional prohibition against double jeopardy.

              3. Whether sufficient evidence supports Guffey’s convictions.



                                                      Facts
[6]   In the Fall of 2012, Guffey was incarcerated in the Fayette County Jail. At that

      time, Guffey had a girlfriend, Amanda Mize (“Mize”). Prior to his

      incarceration, Guffey lived with Mize and her twelve-year-old son, C.M., who

      had a learning disability, and her seven-year-old daughter, B.R.


[7]   On October 4, 2012, Guffey called Mize from the jail. The jail has a system to

      record the inmates’ telephone calls. While Guffey and Mize were talking,

      Fayette County Sheriff’s Deputy Clint Brown (“Deputy Brown”) monitored

      their conversation. Two other law enforcement officers also listened to the

      phone conversation as it occurred. Deputy Brown and the officers heard

      Guffey and Mize discussing a plan for Mize to have sex with her son, C.M.

      They also heard Guffey tell Mize to buy vodka and juice to mix and give to

      C.M. Concerned with what Guffey and Mize had discussed, the officers

      “survey[ed]” Mize after the conversation ended. (Tr. 79). One of the officers

      saw Mize go into a liquor store and purchase vodka and orange juice. When

      she exited the store, officers stopped her and arrested her.


[8]   Thereafter, Deputy Brown went back to the jail’s recording system and listened

      to the other phone calls that Guffey had made to Mize. He discovered fifteen

      additional phone calls that Guffey had made between September 9, 2012 and

      Court of Appeals of Indiana | Opinion 21A01-1410-CR-446 | August 19, 2015   Page 4 of 24
      October 2, 2012, during which Guffey tried to talk Mize into having sex with

      her son to ensure that he was not gay.7 Guffey’s general plan was for Mize to

      show C.M. a pornographic movie, give him some alcohol to relax him, and get

      under the blanket with C.M. while on the phone with Guffey so he could talk

      her through it. During these phone conversations, when Mize expressed that

      she was “uncomfortable” with the idea because it was her son and that it was

      “weird,” Guffey stated that it was “normal” and that she needed to get her son

      to do it. (State’s Ex. 1, 4, 6, 11). Guffey also told Mize that she needed to get

      C.M. to drink some alcohol in orange juice so she could ease him into doing it

      and that Mize needed to do this for C.M. because it would be hard for him to

      get a girlfriend. (State’s Ex. 12). Guffey reasoned that if Mize had sex with

      C.M. so that he could “learn[]” it, then C.M. would have a “whole new

      outlook” and would not be afraid to ask out girls his own age. (State’s Ex. 12).


[9]   During Guffey’s conversations and attempts to get Mize to go through with the

      plan, he encouraged Mize to let C.M. watch her masturbate while Guffey was

      on the phone with her. He also told her that she should give alcohol to C.M. so

      that he would know what it tasted like and so that he would talk to Mize about

      drinking when he got older. During one of these recorded conversations,

      Guffey mentioned that he had previously shown the pornographic movie to

      C.M. and had given him alcohol. Guffey eventually was able to get Mize to




      7
       Guffey made one call on September 9 and 11, three calls on September 12 and 14, two calls on September
      24 and 28 and October 1, and one call on October 2.

      Court of Appeals of Indiana | Opinion 21A01-1410-CR-446 | August 19, 2015                    Page 5 of 24
       show C.M. the pornographic movie,8 and he then wanted to know what C.M.’s

       reaction was. Guffey also talked Mize into showing C.M. her breast and into

       masturbating on the bed while her kids were on the floor watching their own

       movie. Guffey also talked on the phone to C.M. and told him to touch Mize’s

       “boob” and to tell his mother that he wanted to have sex. (State’s Ex. 10, 13).

       Guffey told Mize that he would “coach” her and explained to her how to talk

       to C.M. so that he would know that he would not get into trouble. (State’s Ex.

       8, 12).


[10]   The State charged Guffey with: Count I, Class A felony conspiracy to commit

       child molesting; Count II, Class A felony aiding, inducing, or causing an

       attempted child molesting; Count III, Class C felony conspiracy to commit

       child molesting; Count IV, Class C felony aiding, inducing, or causing an

       attempted child molesting; and Count V, Class B felony aiding, inducing, or

       causing an attempted incest. The State also alleged that Guffey was an habitual

       offender.9


[11]   Prior to trial, Guffey filed a motion in limine, generally seeking to have the trial

       court exclude “evidence of certain alleged other misconduct” that the “State

       may seek to admit at the trial[.]” (App. 91).10 Guffey did not specify what



       8
           Guffey also had Mize show the pornographic movie to B.R.
       9
        The State later amended the charging information to include a Class A felony child molesting charge and a
       Class D felony dissemination of matter harmful to minors charge, but the State dismissed these additional
       charges prior to trial.
       10
            Guffey also filed other motions in limine, which are not at issue in this appeal.


       Court of Appeals of Indiana | Opinion 21A01-1410-CR-446 | August 19, 2015                      Page 6 of 24
       exact misconduct or acts he sought to exclude but argued that any such

       evidence should be excluded based on Evidence Rule 404(b). Guffey

       acknowledged that this rule allowed the admission of misconduct evidence for

       “certain other purposes” but argued that “no such purpose exist[ed].” (App.

       91). He also argued that the evidence should be excluded, pursuant to Evidence

       Rule 403, because it was unfairly prejudicial. The trial court initially granted

       Guffey’s limine motion as it related to introducing evidence of misconduct.


[12]   The trial court held a pretrial hearing on September 5, 2014. During that

       hearing, Guffey argued that the State should be precluded, based on Evidence

       Rule 404(b), from introducing evidence of his recorded jail telephone

       conversations with Mize that occurred prior to October 4, 2012, contending

       that the content of those recorded calls were not “parallel” to his charges and

       that the recordings contained uncharged misconduct by Guffey. (Pretrial Hrg.

       Tr. 7).11 He also argued that they would be prejudicial. The fifteen recordings

       at issue, which occurred prior to October 4, included conversations that

       occurred between September 9 and October 2, 2012. The State argued that

       these recordings were admissible, pursuant to Rule 404(b), to show a plan

       because “[i]t took some talking on Mr. Guffey’s part to get Amanda Mize to the

       point where she was agreeable to this plan” of having sex with her son.

       (Pretrial Hrg. Tr. 5). The State further explained that the plan began on



       11
          Contrary to Appellate Rule 28(A)(2), the Transcript was divided into separate volumes based on the
       various hearings and was not numbered consecutively. Thus, we will cite to the relevant transcript based on
       its subject matter.

       Court of Appeals of Indiana | Opinion 21A01-1410-CR-446 | August 19, 2015                       Page 7 of 24
       September 9, 2012, continued with the “grooming of how to make everybody

       comfortable with the situation” and “evolve[d] into using tools such as

       alcohol[.]” (Pretrial Hrg. Tr. 8). The State informed the trial court that it had

       edited the recordings to omit any prejudicial information, such as the

       announcement at the beginning of the phone call stating that the call was from

       an inmate at the Fayette County Jail, any information that would get into

       Guffey’s failure to register as a sex offender case, and any reference to his

       sentencing on his escape case and habitual offender determination for which he

       was incarcerated. The trial court ruled that the recordings were admissible to

       the extent they were part of the plan to try to molest C.M.


[13]   On September 8 and 9, 2014, the trial court held a jury trial. During the trial,

       Mize, who had already been convicted for her part of the conspiracy at issue, 12

       testified that she and Guffey had entered into an agreement that she would have

       sex with her son, C.M. Additionally, Mize testified that she had purchased the

       vodka and orange juice so that it would be easier to get C.M. to have sex with

       her. She acknowledged that she had previously made contrary statements

       about her purpose for purchasing the vodka.13 Mize, however, disavowed these

       previous statements and testified that she had actually purchased it to give to



       12
         Mize testified that, after she had been charged as a result of her actions on October 4, 2012, she had pled
       guilty to conspiracy to commit attempted child molesting, and was serving a twenty-year sentence, with ten
       years executed and ten years suspended to probation. Additionally, she testified that she was testifying at
       Guffey’s trial as part of her plea agreement.
       13
         She acknowledged that she had previously told a Department of Child Services (“DCS”) worker in
       October 2012 that she had a drinking problem with vodka and that she had previously stated, in a deposition
       with Guffey’s attorney, that she had purchased the vodka and orange juice for her own consumption.

       Court of Appeals of Indiana | Opinion 21A01-1410-CR-446 | August 19, 2015                         Page 8 of 24
       C.M. She also testified that if she had not been arrested, then she would have

       “probably . . . went [sic] through [with] what [Guffey] told [her] to do” and she

       would have tried to have sex with C.M. (Tr. 71).


[14]   When the State moved to introduce the recorded jail telephone conversations,

       State’s Exhibits 1-16, Guffey’s counsel approached the bench to raise his

       objection. The trial court then stated that Guffey’s objection was the “same” as

       he had made during the pretrial hearing. (Tr. 60). Thus, Guffey’s objection

       was specifically to State’s Exhibits 1-15—the recorded conversations that

       occurred prior to October 4, 2012—and was based on Evidence Rule 404(b) and

       prejudice. The trial court overruled Guffey’s objection, explaining that the

       recordings were admissible because they were introduced to show plan and

       preparation and were not prejudicial.


[15]   The jury found Guffey guilty as charged and then determined that he was an

       habitual offender. The record on appeal indicates that the trial court, prior to

       sentencing, entered judgment of conviction on all five counts. (See App. 13,

       159-62; Sent. Tr. 4). At the subsequent sentencing hearing, the trial court

       merged Count II into Count I and Count IV into Count III and imposed an

       aggregate eighty-five (85) year sentence.14 Guffey now appeals.




       14
          At the sentencing hearing, the trial court merged Count II into Count I and imposed a thirty-five (35) year
       sentence on that Class A felony conspiracy to commit child molesting conviction. The trial court also
       merged Count IV into Count III, imposed an eight (8) year sentence on that Class C felony conspiracy to
       commit child molesting conviction and ordered it to be served concurrently with the sentence in Count I. On
       Count V, the Class B felony aiding, inducing, or causing an attempted incest conviction, the trial court
       imposed a twenty (20) year sentence and ordered it to be served consecutively to the sentence in Count I.

       Court of Appeals of Indiana | Opinion 21A01-1410-CR-446 | August 19, 2015                        Page 9 of 24
                                                       Decision
[16]   Guffey argues that: (1) the trial court abused its discretion by admitting fifteen

       recordings of his telephone conversations with Mize; (2) his convictions and

       sentences violate the prohibition against double jeopardy; and (3) there is

       insufficient evidence to support his convictions. We will address each

       argument in turn.


       1. Admission of Evidence

[17]   Guffey argues that the trial court abused its discretion by admitting State’s

       Exhibits 1-15. These exhibits contained fifteen of Guffey’s recorded jail

       telephone conversations with Mize (and, at times, C.M.) wherein Guffey




       During the sentencing hearing, the trial court stated that it was imposing a separate thirty (30) year sentence
       for Guffey’s habitual offender determination. Additionally, the sentencing order, abstract of judgment, and
       chronological case summary indicate that the trial court imposed a separate thirty (30) year sentence for
       Guffey’s habitual offender finding and ordered that it be served consecutively to Counts I, III, and V.
       In regard to the trial court’s act of merging Count II and Count IV, which were convictions for which the trial
       court had already entered a judgment of conviction, we note that “[a] trial court's act of merging, without
       also vacating the conviction, is not sufficient to cure a double jeopardy violation” and that such a violation
       cannot be remedied by the “practical effect” of merging after a conviction has been entered. Gregory v. State,
       885 N.E.2d 697, 703 (Ind. Ct. App. 2008), trans. denied. See also Green v. State, 856 N.E.2d 703, 704 (Ind.
       2006) (explaining that “a merged offense for which a defendant is found guilty, but on which there is neither
       a judgment nor a sentence, is ‘unproblematic’ as far as double jeopardy is concerned”). Because the record
       reveals that the trial court entered judgment of conviction on Counts II and IV prior to merging these
       convictions, we remand this cause to the trial court with instructions to vacate Guffey’s judgment of
       convictions on Count II and Count IV.
       We also remand this cause for the trial court to correct its sentencing as it relates to the habitual offender
       enhancement. It is well settled that an “habitual offender finding does not constitute a separate crime nor
       does it result in a separate sentence, rather it results in a sentence enhancement imposed upon the conviction
       of a subsequent felony.” Hendrix v. State, 759 N.E.2d 1045, 1048 (Ind. 2001) (citing Greer v. State, 680 N.E.2d
       526, 527 (Ind. 1997); Pinkston v. State, 436 N.E.2d 306, 307-08 (Ind. 1982)). Because the trial court entered a
       separate sentence on Guffey’s habitual offender determination, we remand to the trial court with instructions
       to correct the sentencing order, abstract of judgment, and chronological case summary to reflect that the
       thirty (30) year habitual offender enhancement serves as an enhancement of Guffey’s Class A felony sentence
       in Count I.

       Court of Appeals of Indiana | Opinion 21A01-1410-CR-446 | August 19, 2015                          Page 10 of 24
       encouraged Mize to have sex with C.M. Guffey asserts that the recordings

       contained “substantial evidence of uncharged misconduct by Guffey, including

       improprieties with respect to C.M. and prior bad acts unrelated to any sex

       offense.” (Guffey’s Br. 7). He contends that such evidence should have been

       excluded pursuant to Indiana Evidence Rule 404(b).


[18]   The admission and exclusion of evidence falls within the sound discretion of

       the trial court, and we review the admission of evidence only for an abuse of

       discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of

       discretion occurs when the trial court’s decision is clearly against the logic and

       effect of the facts and circumstances before it. Conley v. State, 972 N.E.2d 864,

       871 (Ind. 2012), reh’g denied.


[19]   Indiana Evidence Rule 404(b) provides that:


               (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not
                   admissible to prove a person’s character in order to show that
                   on a particular occasion the person acted in accordance with
                   the character.
               (2) Permitted Uses . . . This evidence may be admissible for
                   another purpose, such as proving motive, opportunity, intent,
                   preparation, plan, knowledge, identity, absence of mistake, or
                   lack of accident . . . .
       (Emphasis added).


[20]   “Rule 404(b) is designed to prevent the jury from making the forbidden

       inference that prior wrongful conduct suggests present guilt.” Halliburton v.

       State, 1 N.E.3d 670, 681 (Ind. 2013) (citation and internal quotation marks

       Court of Appeals of Indiana | Opinion 21A01-1410-CR-446 | August 19, 2015   Page 11 of 24
       omitted). See also Hicks v. State, 690 N.E.2d 215, 218 (Ind. 1997) (explaining

       that Evidence Rule 404(b) is “designed to prevent the jury from assessing a

       defendant’s present guilt on the basis of his past propensities”). “The paradigm

       of such inadmissible evidence is a crime committed on another day in another

       place, evidence whose only apparent purpose is to prove the defendant is a

       person who commits crimes.” Swanson v. State, 666 N.E.2d 397, 398 (Ind.

       1996), reh’g denied.


[21]   In determining whether to admit evidence of specific acts under Rule 404(b),

       the trial court is required to: (1) determine whether the evidence of other

       crimes, wrongs, or acts is relevant to a matter at issue other than the defendant’s

       propensity to commit the charged act; (2) determine that the proponent has

       sufficient proof that the person who allegedly committed the act did, in fact,

       commit the act; and (3) balance the probative value of the evidence against its

       prejudicial effect pursuant to Indiana Evidence Rule 403. 15 Camm v. State, 908

       N.E.2d 215, 223 (Ind. 2009), reh’g denied. “In short, if the evidence bears on

       some issue other than criminal propensity and clears the balancing hurdle of

       Rule 403, it is admissible.” Roop v. State, 730 N.E.2d 1267, 1270 (Ind. 2000).


[22]   Guffey asserts that State’s Exhibits 1-15 were inadmissible under Indiana

       Evidence Rule 404(b), contending that they were “offered solely to show [his]




       15
         Evidence Rule 403 provides that a “court may exclude relevant evidence if its probative value is
       substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues,
       misleading the jury, undue delay, or needlessly presenting cumulative evidence.”

       Court of Appeals of Indiana | Opinion 21A01-1410-CR-446 | August 19, 2015                       Page 12 of 24
       bad character and his propensity [to] act in conformance with that bad

       character.” (Guffey’s Br. 7-8).16 Alternately, he argues that even if the evidence

       were admissible under Rule 404(b), then it should have been excluded under

       Evidence Rule 403 because it was prejudicial.


[23]   The State argues that the recorded jail phone conversations were admissible

       under Evidence Rule 404(b)(2) because the “conversations [we]re relevant to

       the instant case because they show[ed] [Guffey’s] plan and preparation for the

       molestation of twelve-year-old C.M.” and showed his “manipulative efforts to

       break down his co-conspirator’s resistance to the plan.” (State’s Br. 10-11).

       The State contends that the conversations in the recordings were “very

       relevant” because they reveal how Guffey “step by step, managed to convince

       Mize to agree to an act that she initially characterized as ‘weird’ and with

       which she was not comfortable[.]” (State’s Br. 16). Additionally, the State

       asserts that the recorded conversations were “probative evidence” because they

       showed that Guffey “groomed both Mize and C.M. for the sexual act by




       16
          In his motion in limine and during trial, Guffey generally objected to the recorded jail telephone calls in
       their entirety and did not specifically set out any specific act mentioned in the conversations that he thought
       should be excluded under Rule 404(b). On appeal, however, he lists specific acts that he claims should have
       been excluded. Specifically, Guffey argues that the trial court erred by admitting these exhibits because the
       recordings revealed that Guffey: (1) had given alcohol to C.M.; (2) had shown C.M. a pornographic movie;
       (3) repeatedly encouraged Mize to show the pornographic movie to C.M. and his seven-year-old sister; (4)
       instructed C.M. to tell Mize that C.M. wanted to have sex with her; (5) encouraged C.M. to touch or pinch
       Mize’s breasts; (6) told Mize to masturbate in front of her children; and (7) suggested that Mize undress in
       her children’s presence. Because Guffey’s trial objection did not address these specific acts, we will address
       his argument in the context of excluding the exhibits as a whole. See Treadway v. State, 924 N.E.2d 621, 631
       (Ind. 2010) (“A party may not add to or change his grounds for objections in the reviewing court.”).



       Court of Appeals of Indiana | Opinion 21A01-1410-CR-446 | August 19, 2015                         Page 13 of 24
       introducing different sexual elements into the conversation and having Mize

       disrobe and perform sexual acts in the presence of her children.” (State’s Br.

       16). Alternatively, the State argues that any error in the admission of the

       recordings was harmless error because Mize testified that she and Guffey had

       agreed that she would have sex with C.M. and would give him vodka and

       orange juice, that she went to a liquor store and bought the alcohol, and that

       she would have carried out the plan if she had not been arrested.


[24]   We agree with the State that the trial court did not abuse its discretion by

       admitting the jail telephone recordings into evidence. First, the recorded

       conversations in State’s Exhibits 1-15 were relevant to a matter other than

       Guffey’s propensity to commit the charged act. Indeed, the recordings were

       relevant to show Guffey’s plan and preparation as they related to his conspiracy

       to commit child molesting charge as they showed the groundwork laid by

       Guffey to get Mize to enter into an agreement for her to have sex with her son.

       They also showed Guffey’s preparation and grooming of Mize and C.M. to

       encourage their willingness, get them more comfortable, and prime them for a

       sexual act.


[25]   We have previously held that a defendant’s planning and grooming were

       relevant and established a valid basis for the admission of prior acts under Rule

       404(b). See Piercefield v. State, 877 N.E.2d 1213, 1216 (Ind. Ct. App. 2007),

       trans. denied. In Piercefield, we explained that “‘[g]rooming’ is ‘the process of

       cultivating trust with a victim and gradually introducing sexual behaviors until

       reaching the point’ where it is possible to perpetrate a sex crime against the

       Court of Appeals of Indiana | Opinion 21A01-1410-CR-446 | August 19, 2015   Page 14 of 24
       victim.” Id. (quoting U.S. v. Johnson, 132 F.3d 1279, 1283 n.2 (9th Cir. 1997)).

       In that case, we found that the defendant’s prior acts of having his stepchildren

       massage him was relevant under Rule 404(b) to show the defendant’s

       preparation, plan, and grooming because he was familiarizing the children to

       touching his body. Id. at 1216. Here, Guffey’s acts of encouraging C.M.’s

       exposure to alcohol and sexually-tinged content and acts were done to prepare

       C.M. to be more comfortable with the eventual sexual act with Mize that

       Guffey and Mize had planned for him. Additionally, the recorded jail

       conversations, which occurred close in time to the final phone conversation on

       October 4, 2012, “complete[d] the story of the crime” and were relevant to a

       matter at issue other than the defendant’s propensity to commit the charged act.

       See Wages v. State, 863 N.E.2d 408, 411 (Ind. Ct. App. 2007) (explaining that

       evidence of happenings near in time and place that complete the story of the

       crime is admissible even if it tends to establish the commission of other crimes

       not included among those being prosecuted).


[26]   In regard to the second consideration when reviewing the admission of

       evidence under Rule 404(b), we note that the State had sufficient proof that

       Guffey had committed the act or offense as charged because Mize testified that

       she and Guffey had an agreement that she would have sex with her son, and

       she testified that she purchased vodka and juice in furtherance of that

       agreement. Lastly, when balancing the probative value of the evidence against

       its prejudicial effect pursuant to Indiana Evidence Rule 403, we conclude that

       any prejudice that may have possibly arisen from the recordings did not


       Court of Appeals of Indiana | Opinion 21A01-1410-CR-446 | August 19, 2015   Page 15 of 24
       substantially outweigh the probative value of the evidence. Thus, the trial court

       did not abuse its discretion by admitting State’s Exhibits 1-15 into evidence.17

       See, e.g., Piercefield, 877 N.E.2d at 1216.


       2. Double Jeopardy

[27]   Guffey also argues that his convictions violate the prohibition against double

       jeopardy. Specifically, he asserts that “[e]ntry of judgment of conviction as to

       four of the five counts violated Art. I, section 14” of the Indiana Constitution

       because his convictions all rested on the same evidence of his discussions with

       Mize regarding Mize having sexual intercourse with C.M. and Mize’s purchase

       of the vodka and orange juice. (Guffey’s Br. 16).


[28]   Guffey acknowledges that the trial court merged Count II into Count I and

       Count IV into Count III. He, however, argues that the trial court’s merger of

       some of the convictions was “improper and inadequate to resolve the double

       jeopardy issues.” (Guffey’s Br. 16). He requests that “this Court reverse on

       double jeopardy grounds the trial court’s entry of judgment of conviction as to

       all counts other than Count I, Conspiracy to Commit Child Molesting, a Class

       A felony[.]” (Guffey’s Br. 21-22). Because we have already remanded this case




       17
          Moreover, any error in the admission of the State’s Exhibits 1-15 would have been harmless as there was
       substantial evidence of Guffey’s guilt independent of the challenged recordings (i.e., Mize’s testimony and
       State’s Exhibit 16—the October 4, 2012 telephone conversation that Guffey did not challenge). See Cook v.
       State, 734 N.E.2d 563, 569 (Ind. 2000) (explaining that “[t]he improper admission of evidence is harmless
       error when the conviction is supported by substantial independent evidence of guilt as to satisfy the reviewing
       court that there is no substantial likelihood that the questioned evidence contributed to the conviction” and
       holding that the erroneous admission of Rule 404(b) evidence was harmless error), reh’g denied.

       Court of Appeals of Indiana | Opinion 21A01-1410-CR-446 | August 19, 2015                        Page 16 of 24
       for the trial court to vacate the judgment of convictions on Count II and Count

       IV, see footnote 14, we need not further address this argument.


[29]   Thus, here, for purposes of addressing Guffey’s double jeopardy argument, we

       need only look at whether there is a double jeopardy violation in regard to

       Counts I, III, and V. Before addressing Guffey’s arguments, we note that the

       Indiana Double Jeopardy Clause provides, in relevant part, that “No person

       shall be put in jeopardy twice for the same offense.” IND. CONST. art. I, § 14.

       “Indiana’s Double Jeopardy Clause was intended to prevent the State from

       being able to proceed against a person twice for the same criminal

       transgression.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999).

       Consequently, two or more offenses are the “same offense” and violate the

       Indiana Double Jeopardy Clause if, “with respect to either the statutory

       elements of the challenged crimes or the actual evidence used to convict, the

       essential elements of one challenged offense also establish the essential elements

       of another challenged offense.” Id.


[30]   Guffey argues that the Double Jeopardy Clause was violated under the actual

       evidence test. A double jeopardy violation occurs under the actual evidence test

       if there is “a reasonable possibility that the evidentiary facts used by the fact-

       finder to establish the essential elements of one offense may also have been used

       to establish the essential elements of a second challenged offense.” Id. at 53.

       “[A] ‘reasonable possibility’ that the jury used the same facts to reach two

       convictions requires substantially more than a logical possibility.” Lee v. State,

       892 N.E.2d 1231, 1236 (Ind. 2008). “Rather, ‘reasonable possibility’ turns on a

       Court of Appeals of Indiana | Opinion 21A01-1410-CR-446 | August 19, 2015   Page 17 of 24
       practical assessment of whether the jury may have latched on to exactly the

       same facts for both convictions.” Id. See also Griffin v. State, 717 N.E.2d 73, 89

       (Ind. 1999) (“To establish that two offenses are the same offense under the

       actual evidence test, the possibility must be reasonable, not speculative or

       remote.”), cert. denied. In applying the actual evidence test, this Court must

       identify the essential elements of each offense and evaluate the evidence from

       the trier of fact’s perspective. Spivey v. State, 761 N.E.2d 831, 832 (Ind. 2002).

       “In determining the facts used by the fact-finder, it is appropriate to consider the

       charging information, jury instructions, and arguments of counsel.” Lee, 892

       N.E.2d at 1234 (citing Spivey, 761 N.E.2d at 832 and Richardson, 717 N.E.2d at

       54 n.48).


[31]   Here, the State charged Guffey, in Count I, with Class A felony conspiracy to

       commit child molesting, which required the State to prove beyond a reasonable

       doubt that Guffey with intent to commit the felony of child molesting agreed

       with Mize for her to perform or submit to sexual intercourse or deviate sexual

       conduct with C.M., a child under fourteen years of age, and that Mize

       purchased vodka and orange juice to facilitate the offense. See (App. 20); see

       also I.C. §§ 35-42-4-3(a)(1); 35-41-5-2. For the Class C felony conspiracy to

       commit child molesting offense as charged in Count III, the State was required

       to prove beyond a reasonable doubt that Guffey agreed with Mize to perform or

       submit to fondling or touching with C.M., a child under fourteen years of age,

       and that Mize purchased vodka and orange juice to facilitate the offense. See

       (App. 21); see also I.C. §§ 35-42-4-3(b); 35-41-5-2. Lastly, for the Class B felony

       Court of Appeals of Indiana | Opinion 21A01-1410-CR-446 | August 19, 2015   Page 18 of 24
       aiding, inducing, or causing incest offense as charged in Count V, the State was

       required to show that Guffey aided, induced, or caused Mize to attempt to

       engage in sexual intercourse or deviate sexual conduct with C.M., a child less

       than sixteen years of age, who Mize knew was biologically related to her. See

       (App. 21); see also I.C. §§ 35-46-1-3; 35-41-2-4; 35-41-5-1. At trial, the State

       relied on the evidence that Guffey had gotten Mize to agree to have sex with

       her son and that she went to the liquor store to buy vodka to give him to make

       him more comfortable. During closing arguments, the State argued that this

       evidence would support Guffey’s offenses in Count I, III, and V. In fact, the

       State, while explaining that the “only difference” between the Class A felony

       and Class C felony offenses in Counts I and III was the act of sexual intercourse

       versus fondling, acknowledged that Guffey and Mize did not talk about

       fondling or touching and asserted that the jury could “believe” that there

       “w[ould] be fondling and touching in order to accomplish the [sex] act.” (Tr.

       116).


[32]   The State properly concedes that Guffey’s “convictions on Counts III and V

       violate[d] [Guffey’s] double jeopardy protections[]” because “Counts I through

       V were all based on the same act[.]” (State’s Br. 19). Accordingly, we remand

       to the trial court to vacate Counts III and V. The State requests that, when

       remanding this case, we instruct the trial court that it may resentence Guffey to

       a higher sentence on the Class A felony conviction in Count I “because it

       appears that the trial court intended to impose on [Guffey] a substantial penalty




       Court of Appeals of Indiana | Opinion 21A01-1410-CR-446 | August 19, 2015   Page 19 of 24
       for his offenses[.]” (State’s Br. 20). Guffey, however, argues that the trial court

       should not be allowed to impose a harsher sentence on remand.


[33]   We have held that, on resentencing after the reversal of a conviction in a multi-

       count proceeding, the trial court has “flexibility upon remand, including the

       ability to increase sentences for individual convictions without giving rise to a

       presumption of vindictive sentencing, so long as the aggregate sentence is no

       longer than originally imposed.” Sanjari v. State, 981 N.E.2d 578, 583 (Ind. Ct.

       App. 2013), trans. denied. In so holding, we explained that “a trial court is likely

       to view individual sentences in a multi-count proceeding as part of an overall

       plan, a plan that can be overthrown if one or more of the convictions is reversed

       or reduced in degree.” Id. (relying on U.S. v. Shue, 825 F.2d 1111, 1114 (7th

       Cir. 1987), cert. denied; U.S. v. Pimienta-Redondo, 874 F.2d 9, 14 (1st Cir. 1989),

       cert. denied). Given the circumstances of this case, we remand to the trial court

       to vacate Counts III and V, and we instruct the trial court that it may resentence

       Guffey on Count I.18




       18
          Additionally, as discussed in footnote 14, we remind the trial court that it shall not enter a separate
       sentence for the habitual offender determination but, instead, it shall use the habitual offender determination
       to enhance the sentence in Count I.

       Court of Appeals of Indiana | Opinion 21A01-1410-CR-446 | August 19, 2015                         Page 20 of 24
       3. Sufficiency of the Evidence

[34]   Guffey argues that the evidence was insufficient to support his conviction for

       Class A felony conspiracy to commit child molesting as contained in Count I. 19

               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 [jury’s verdict].
               Appellate courts affirm the conviction unless no reasonable fact-
               finder could find the elements of the crime proven beyond a
               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, 146-47 (Ind. 2007) (internal quotation marks and

       citations omitted) (emphasis in original).


[35]   To convict Guffey of Class A felony conspiracy to commit child molesting as

       charged in Count I, the State was required to prove beyond a reasonable doubt

       that Guffey, “with intent to commit the felony” of child molesting, agreed with

       Mize, who was at least twenty-one years old, to perform or submit to “sexual

       intercourse or deviate sexual conduct” with C.M., a child under fourteen years




       19
         Guffey also challenged the sufficiency of the evidence to support his other convictions. Because we have
       determined that his other convictions must be vacated as explained above, we need not address Guffey’s
       challenge to the sufficiency of the evidence on these other counts.

       Court of Appeals of Indiana | Opinion 21A01-1410-CR-446 | August 19, 2015                      Page 21 of 24
       of age, and that Mize “performed an overt act in furtherance of the agreement”

       by “obtaining an alcoholic beverage, vodka, and a mixer, orange juice, to

       provide to the child to facilitate the offense[.]” I.C. §§ 35-42-4-3(b) (2012); 35-

       41-5-2 (2012); (App. 20).


[36]   Guffey argues that the State failed to prove beyond a reasonable doubt that

       there was: (1) the existence of an agreement between Mize and him to commit

       the Class A felony child molesting offense; and (2) an overt act in furtherance of

       the agreement.


[37]   “In proving the agreement element, the State is not required to show an express

       formal agreement, and proof of the conspiracy may rest entirely on

       circumstantial evidence.” Fry v. State, 748 N.E.2d 369, 374 (Ind. 2001). In

       regard to this element, Guffey acknowledges that Mize testified at trial that she

       and Guffey had reached an agreement. He contends, however, that there was

       evidence that contradicted her trial testimony. Specifically, he argues that the

       recorded jail telephone conversations show that Mize “repeatedly objected to

       Guffey’s suggestion that she engage in sexual contact with C.M.” (Guffey’s Br.

       24). We find Guffey’s reliance on these recordings, which include the

       recordings in State’s Exhibits 1-15, to be disingenuous as he previously argued

       in this appeal that these recordings should have been excluded from evidence.

       Nevertheless, although Mize expressed some reluctance to engage in a sexual

       act with her son, the evidence shows that she, upon Guffey’s encouragement,

       agreed to do so. Moreover, Mize expressly testified that she and Guffey did

       enter into an agreement. Thus, we reject Guffey’s argument as it is merely a

       Court of Appeals of Indiana | Opinion 21A01-1410-CR-446 | August 19, 2015   Page 22 of 24
       request to reweigh the evidence, which we will not do. See Drane, 867 N.E.2d

       at 146.


[38]   In regard to the overt act element, Guffey contends that the evidence that Mize

       purchased the vodka and orange juice was not sufficient to show that it was an

       overt act in furtherance of the agreement to commit child molesting. He

       contends, instead, that her act of purchasing these beverages was merely for her

       personal consumption and not in furtherance of any agreement to commit child

       molesting. In his appellate brief, he acknowledges that Mize testified that she

       bought the vodka and orange juice to give to her son “for the purpose of easing

       the task of having sex with her son.” (Guffey’s Br. 7). Nevertheless, he

       contends that this evidence was not sufficient to show that it was an overt act in

       furtherance of the agreement because she had, prior to trial, made some

       statements (in a pretrial deposition and to a Department of Child Services

       worker) that suggested that she had purchased the vodka and orange juice for

       herself.


[39]   Guffey’s argument is nothing more than an invitation for this Court to reweigh

       the evidence and judge the credibility of the witness, which we decline to do.

       See Drane, 867 N.E.2d at 146. Guffey made this same argument to the jury

       during closing argument. The jury rejected his argument and believed Mize’s

       testimony regarding her purpose for purchasing the alcohol, and we decline to

       impinge upon the jury’s credibility determination and weighing of the evidence.

       Because there is probative evidence from which the jury could have found



       Court of Appeals of Indiana | Opinion 21A01-1410-CR-446 | August 19, 2015   Page 23 of 24
       Guffey guilty beyond a reasonable doubt of Class A felony conspiracy to

       commit child molesting as charged in Count I, we affirm his conviction.


[40]   Affirmed in part, reversed in part, and remanded.


       Crone, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 21A01-1410-CR-446 | August 19, 2015   Page 24 of 24
