MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                          Feb 22 2017, 6:58 am

court except for the purpose of establishing                           CLERK
the defense of res judicata, collateral                            Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Adam C. James                                            Curtis T. Hill, Jr.
Shelbyville, Indiana                                     Attorney General of Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Samuel R. White,                                         February 22, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         70A04-1607-CR-1752
        v.                                               Appeal from the Rush Superior
                                                         Court
State of Indiana,                                        The Honorable Brian D. Hill,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         70D01-1506-F3-312



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 70A04-1607-CR-1752 | February 22, 2017   Page 1 of 8
                                                  Case Summary
[1]   Samuel White (“White”) appeals his conviction and sentence for Conspiracy to

      Commit Dealing in Methamphetamine, a Level 3 felony.1 We affirm.



                                                     Issues
[2]   White presents two issues for review:


                 I.       Whether his conviction is supported by sufficient evidence;
                          and


                 II.      Whether his fifteen-year sentence is inappropriate.


                                Facts and Procedural History
[3]   On June 3, 2015, the Rushville Police Department used a confidential

      informant, Shawn Williams (“Williams”), to place a series of recorded calls to

      White to arrange a purchase of methamphetamine. In the first call, Williams

      asked White if he could purchase a quarter-ounce (seven grams) of

      methamphetamine. White agreed to sell that amount of methamphetamine for

      $450. In the second and third calls, Williams falsely claimed that his car had

      broken down. He asked White to bring the methamphetamine to him; White

      agreed to do so for a delivery fee of $75. In the fourth call, White and Williams




      1
          Ind. Code § § 35-48-4-1.1, 35-41-5-2.


      Court of Appeals of Indiana | Memorandum Decision 70A04-1607-CR-1752 | February 22, 2017   Page 2 of 8
      confirmed that Williams was to purchase a quarter-ounce of methamphetamine

      and pay a $75 delivery fee.


[4]   Police officers searched Williams, provided him with $525 in cash, and

      transported him to a designated meeting location. White drove up in a van; his

      mother, Laura White (“Laura”), was sitting in the passenger’s seat. Williams

      briefly entered White’s van. When he returned to the unmarked police vehicle,

      Williams produced a substance later tested and identified as 1.36 grams of

      methamphetamine. Williams was again searched, and found to be without

      cash or additional methamphetamine.


[5]   Police officers stopped White’s van and arrested White and Laura. During a

      search at the jail, $525 in cash was found in Laura’s bra. In a police interview,

      White claimed to have thrown the buy money out the window. He also

      claimed that an unidentified female who “sells ounces” was his source. (Tr. at

      39.)


[6]   White was charged with, and convicted of, three counts related to that

      transaction. Because of double jeopardy concerns, the trial court vacated the

      judgment entered upon two of White’s convictions and sentenced him only

      upon the conviction for Conspiracy to Commit Dealing in Methamphetamine.

      This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 70A04-1607-CR-1752 | February 22, 2017   Page 3 of 8
                                 Discussion and Decision
                                 Sufficiency of the Evidence
[7]   Dealing in Methamphetamine is committed when a person knowingly or

      intentionally manufactures, finances the manufacture of, delivers, or finances

      the delivery of methamphetamine or possesses it with the intent to do the same.

      I.C. § 35-48-4-1.1(a)(1). The offense is enhanced to a Level 3 felony if the

      amount of the drug involved is at least five but less than ten grams. I.C. § 35-

      48-4-1.1(d). Conspiracy to commit a felony has three elements: (1) the intent to

      commit a felony, (2) an agreement with another person to commit a felony, and

      (3) an overt act performed by either the defendant or the person with whom the

      defendant has entered into the agreement. Owens v. State, 929 N.E.2d 754, 756

      (Ind. 2010). Thus, the State was required to establish, beyond a reasonable

      doubt, that White, with intent to commit dealing in methamphetamine, agreed

      with Williams to deliver more than five grams of methamphetamine, and one of

      the conspirators performed an overt act in furtherance of the agreement.


[8]   When reviewing the sufficiency of the evidence to support a criminal

      conviction, we do not reweigh the evidence or judge witness credibility.

      McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). Considering only the

      evidence supporting the verdict and any reasonable inferences to be drawn

      therefrom, we will affirm if there is substantial evidence of probative value such

      that a reasonable trier of fact could have concluded the defendant was guilty

      beyond a reasonable doubt. Id.


      Court of Appeals of Indiana | Memorandum Decision 70A04-1607-CR-1752 | February 22, 2017   Page 4 of 8
[9]    Here, the State presented evidence that Williams and White participated in four

       telephone calls arranging a methamphetamine sale. The terms agreed upon

       were that White was to sell one-quarter ounce of methamphetamine to

       Williams for $475. White was to deliver the drug to Williams for an additional

       $75. Law enforcement officers searched Williams, provided him with

       previously-photocopied cash, and transported him to a meeting place. Williams

       briefly entered White’s vehicle and returned with methamphetamine. The cash

       was found on White’s mother, who had been inside his vehicle at the exchange.


[10]   However, White claims that the evidence is insufficient to support his

       conviction because “the confidential informant had personal motivation,

       namely a financial incentive” and “he lied to White to get him to travel to Rush

       County.” Appellant’s Br. at 7. White points to Williams’s admissions that he

       needed money to pay his bills and had lied to a man that he considered a friend.

       White also observes that Williams did not actually fulfill an agreement to

       deliver a quarter-ounce (seven grams); Indiana State Police Laboratory testing

       indicated that the methamphetamine weighed 1.36 grams.


[11]   In essence, White claims that Williams’s testimony should be discarded because

       he lacks credibility. However, we do not make credibility determinations.

       McHenry, 820 N.E.2d at 126. Moreover, this is not a case in which a single

       witness offered uncorroborated testimony, such that the incredible dubiosity

       rule might be raised. See Moore v. State, 27 N.E.3d 749, 755 (Ind. 2015)

       (observing that the incredible dubiosity rule allows a court to impinge upon the

       responsibility of the jury to judge witness credibility only when a sole witness

       Court of Appeals of Indiana | Memorandum Decision 70A04-1607-CR-1752 | February 22, 2017   Page 5 of 8
       has presented equivocal or coerced testimony and there is a complete lack of

       circumstantial evidence of the appellant’s guilt).


[12]   As White observes, less than seven grams of methamphetamine was actually

       delivered. However, White was convicted of conspiring to deliver at least five

       grams of methamphetamine. The evidence showed that White and Williams

       set the terms of sale, that is, $475 for a quarter-ounce of methamphetamine.

       White then traveled to Williams’s location and provided a package of

       methamphetamine, acts in furtherance of the conspiracy. To establish the

       conspiracy, the State was not also required to establish that a particular weight

       of drug was in fact delivered. “Well-settled Indiana law provides that the

       conspiracy to commit a felony is a distinct offense from the contemplated

       felony.” Owens, 929 N.E.2d at 756. A conspiracy is complete upon reaching an

       agreement and the performance of an overt act in furtherance of the agreement.

       Id. Sufficient evidence supports White’s conviction.


                                                  Sentence
[13]   The sentencing range for a Level 3 felony is 3 years to 16 years, with an

       advisory sentence of 9 years. I.C. § 35-50-2-5. White argues that his fifteen-

       year sentence is inappropriate, and asks that we revise it, pursuant to Indiana

       Appellate Rule 7(B), which states, “The 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.”


       Court of Appeals of Indiana | Memorandum Decision 70A04-1607-CR-1752 | February 22, 2017   Page 6 of 8
[14]   When reviewing a sentence, our principal role is to leaven the outliers rather

       than necessarily achieve what is perceived as the correct result. Cardwell v. State,

       895 N.E.2d 1219, 1225 (Ind. 2008). “We do not look to determine if the

       sentence was appropriate; instead we look to make sure the sentence was not

       inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012).


[15]   As for the nature of the offense, we observe that “the advisory sentence is the

       starting point the Legislature selected as appropriate for the crime committed.”

       Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). White’s sentence is above the

       advisory but below the maximum. There is nothing particularly remarkable

       about White’s agreement to provide methamphetamine to Williams and his

       undertaking of efforts to do so.


[16]   As for White’s character, he has three prior felony and five prior misdemeanor

       convictions. These include resisting law enforcement, possession of marijuana,

       operating a vehicle while intoxicated, child selling, failure to stop after an

       accident, possession of a narcotic drug, and dealing in methamphetamine.

       When he committed the instant offense, White was on parole for his Class A

       felony dealing in methamphetamine conviction. He had also violated

       probation in the past. We conclude that White has not demonstrated that his

       sentence is inappropriate.




       Court of Appeals of Indiana | Memorandum Decision 70A04-1607-CR-1752 | February 22, 2017   Page 7 of 8
                                               Conclusion
[17]   Sufficient evidence supports White’s conviction. His sentence is not

       inappropriate.


[18]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 70A04-1607-CR-1752 | February 22, 2017   Page 8 of 8
