MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                   Jan 19 2018, 8:44 am
regarded as precedent or cited before any
court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mary Beth Mock                                           Curtis T. Hill, Jr.
Madison, Indiana                                         Attorney General of Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michelle Colen,                                          January 19, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         39A04-1706-CR-1365
        v.                                               Appeal from the Jefferson Circuit
                                                         Court
State of Indiana,                                        The Honorable Darrell Auxier,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         39C01-1605-F3-385



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 39A04-1706-CR-1365 | January 19, 2018         Page 1 of 9
                                          Case Summary
[1]   Michelle Colen appeals her conviction and sentence for dealing in

      methamphetamine. She argues that there is insufficient evidence to support her

      conviction and that her sentence is inappropriate. We affirm.



                            Facts and Procedural History
[2]   On April 27, 2016, the Madison Police Department sent a confidential

      informant, who was equipped with a video-recording device, to Johnny Ford’s

      home to purchase methamphetamine. Ford was a suspected methamphetamine

      dealer in the area. At the time of the buy, Colen and Ford had been in a

      romantic relationship for approximately one year, and Colen and her three

      minor children had been living with Ford for most of the relationship. The

      informant met with Ford and Colen in their bedroom. After about twenty

      minutes, the informant put $100 on the bed, and Ford began packaging the

      methamphetamine. Colen can be heard on the video asking Ford, “Do you

      need the scales?” Ex. 9. Ford indicated that he did, and Colen is then seen

      handing Ford a set of digital scales. Throughout the conversation, Colen and

      Ford were lying on their bed with the scales sitting between them. After

      receiving the methamphetamine, the informant left the house and gave the

      drugs and recording equipment to Madison police officers.


[3]   On May 1, Madison S.W.A.T. officers executed a warrant at Ford’s home and

      arrested Ford and Colen. Colen was charged with Level 4 felony dealing in


      Court of Appeals of Indiana | Memorandum Decision 39A04-1706-CR-1365 | January 19, 2018   Page 2 of 9
      methamphetamine, Level 6 felony maintaining a common nuisance, and Level

      6 felony possession of methamphetamine. Colen and Ford both posted bond

      and resumed living together for several months before Colen ended the

      relationship.


[4]   During her jury trial, Colen admitted that she was guilty of the common-

      nuisance and possession-of-methamphetamine charges, but she denied ever

      dealing methamphetamine. The State argued that Colen was an accomplice

      because she was present for the buy and aided Ford by handing him the digital

      scales, which Ford used to weigh the methamphetamine. The jury agreed with

      the State and found Colen guilty of all three charges.


[5]   The trial court sentenced Colen to six years for dealing in methamphetamine,

      one year for maintaining a common nuisance, and one year for possession of

      methamphetamine. The trial court did not suspend any time but ordered the

      sentences for all three counts to run concurrently, for an aggregate term of six

      years in the Department of Correction (DOC). The court recommended Colen

      for the Incarceration with a Purpose program and requested that Colen be

      placed in the Growth Responsibility Integrity and Purpose (GRIP) Therapeutic

      Community. The court went on to say, “Should the Defendant successfully

      complete the GRIP program, the Court will consider modifying the

      Defendant’s sentence to probation to be supervised by the Jefferson County

      Community Corrections.” Tr. Vol. III p. 130.


[6]   Colen now appeals.


      Court of Appeals of Indiana | Memorandum Decision 39A04-1706-CR-1365 | January 19, 2018   Page 3 of 9
                                    Discussion and Decision
[7]   Colen appeals her conviction for dealing in methamphetamine, arguing that the

      evidence is insufficient to support her conviction because she did not aid Ford

      in dealing.1 Colen also argues that her sentence is inappropriate.


                                  I. Sufficiency of the Evidence
[8]   When reviewing the sufficiency of the evidence, we neither reweigh the

      evidence nor determine the credibility of witnesses; that role is reserved for the

      factfinder. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). “The evidence—

      even if conflicting—and all reasonable inferences drawn from it are viewed in a

      light most favorable to the conviction.” Id. A conviction will be affirmed “if

      there is substantial evidence of probative value supporting each element of the

      crime from which a reasonable trier of fact could have found the defendant

      guilty beyond a reasonable doubt.” Id.


[9]   A person who knowingly or intentionally delivers or finances the delivery of

      methamphetamine, pure or adulterated, commits the crime of dealing in

      methamphetamine. Ind. Code § 35-48-4-1.1. If the amount of

      methamphetamine involved is at least one gram but less than five grams, then

      the crime is a Level 4 felony.2 Id. To be convicted as an accomplice, the State

      must prove that Colen knowingly or intentionally aided, induced, or caused



      1
          Colen does not appeal the convictions for maintaining a common nuisance or possession of marijuana.
      2
          It is undisputed that Ford sold at least one gram of methamphetamine to the informant.


      Court of Appeals of Indiana | Memorandum Decision 39A04-1706-CR-1365 | January 19, 2018          Page 4 of 9
       Ford to commit the offense of dealing in methamphetamine. Ind. Code § 35-

       41-2-4. “It is well established that a person who aids another in committing a

       crime is just as guilty as the actual perpetrator.” Green v. State, 937 N.E.2d 923,

       927 (Ind. Ct. App. 2010), trans. denied. It is not necessary for a defendant to

       have participated in every element of the crime to be convicted as an

       accomplice. Id.


[10]   The fact-finder, here the jury, considers several factors “to determine whether a

       defendant aided another in the commission of a crime[.]” Whedon v. State, 765

       N.E.2d 1276, 1277 (Ind. 2002). These factors include: (1) presence at the scene

       of the crime; (2) companionship with another engaged in a crime; (3) failure to

       oppose the commission of the crime; and (4) the course of conduct before,

       during, and after the occurrence of the crime. Id. Mere presence during the

       commission of the crime or failure to oppose the crime are, by themselves,

       insufficient to establish accomplice liability. Id. But they may be considered in

       conjunction with the other factors to determine liability. Id. at 1278.


[11]   It is undisputed that Colen was present for the buy and that she did not oppose

       it. At the time of the buy, she had been in a romantic relationship and living

       with Ford for approximately one year. During the transaction, Colen can be

       heard on video asking Ford if he needed the scales and seen handing Ford a set

       of digital scales, which were used to weigh the methamphetamine. At trial,

       Colen was asked if she knew what Ford was going to do with the scales:


               [State]:         And you knew what [Ford] was going to do with
                                those scales when you handed them to him, right?
       Court of Appeals of Indiana | Memorandum Decision 39A04-1706-CR-1365 | January 19, 2018   Page 5 of 9
               [Colen]:          Right.


               [State]:          You knew he was going to use those scales to weigh
                                 out methamphetamine.


               [Colen]:          Yes.


               [State]:          And he was going to give that meth to the
                                 informant?


               [Colen]:          Yes.


       Tr. Vol. III p. 5.


[12]   Colen argues that handing scales to Ford is insufficient to show that she aided

       in the sale of methamphetamine. She focuses on the fact that the scales were on

       the bed between her and Ford and were less than two feet from Ford. But the

       proximity of the digital scales to Ford is not determinative of whether Colen

       was an accomplice; Colen’s actions are. Colen further contends that she was

       merely present at the buy and that she never touched the methamphetamine or

       money.3 As already stated, a defendant does not have to commit every element

       of the crime to be convicted as an accomplice. Green, 937 N.E.2d at 927. Both

       arguments fail for the same reason: Colen is on video handing the digital scales

       to Ford. She admitted at trial that she knew Ford was going to use the digital




       3
         Colen also argues that she never financed the delivery of methamphetamine, but this was not the theory of
       the State’s case. The State argued that Colen was an accomplice based on her presence at the buy and
       handing the digital scales to Ford.

       Court of Appeals of Indiana | Memorandum Decision 39A04-1706-CR-1365 | January 19, 2018          Page 6 of 9
       scales to weigh the methamphetamine before giving it to the informant. In

       other words, she knew that the digital scales were a necessary part of the sales

       transaction. This is sufficient for the jury to conclude that Colen knowingly

       aided Ford in the sale of methamphetamine.4


                                                 II. Sentencing
[13]   Colen also argues that her sentence is inappropriate. “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.” Ind. Appellate Rule 7(B). We

       generally defer to the judgment of trial courts in sentencing matters, and

       defendants have the burden of persuading us that their sentences are

       inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1045 (Ind. Ct. App. 2016).

       “Whether a sentence is inappropriate ultimately turns on the culpability of the

       defendant, the severity of the crime, the damage done to others, and a myriad

       of other factors that come to light in a given case.” Id.


[14]   Colen argues that her character makes her sentence inappropriate. Colen’s

       aggregate sentence for all three convictions was six years in the DOC with no

       time suspended—the advisory sentence for a Level 4 felony. She stresses that




       4
         Colen alternatively argues that if she did aid Ford, the evidence is insufficient to prove that she did so
       intentionally. The accomplice-liability statute is written in the disjunctive and requires that the State prove
       that the defendant either knowingly or intentionally aided the principal actor. See I.C. § 35-41-2-4. Because
       the evidence is sufficient to prove that Colen knowingly aided Ford, we do not address this argument.

       Court of Appeals of Indiana | Memorandum Decision 39A04-1706-CR-1365 | January 19, 2018              Page 7 of 9
       she has three minor children and that she cares for her sick, elderly father.

       Colen claims that she is the only relative who is able to care for her father.

       After posting bond, Colen was placed on pretrial release and passed all of her

       drug screens, except for the first one, and she has cut off all ties to Ford and his

       friends. Colen acknowledges that she has a prior misdemeanor conviction for

       possession of a legend drug. Colen neglects to mention that she knew she was

       living in a “dope house” and that she remained there with her three minor

       children for approximately one year. Tr. Vol. III pp. 5-6. And after posting

       bond, Colen returned to Ford’s house and remained living with Ford “for a

       couple of months” before ending the relationship. Id. at 74.


[15]   At the sentencing hearing, the State acknowledged that Colen had done well

       while on pretrial release, but it argued that she did not have the tools necessary

       to maintain sobriety on her own. See id. at 123-24. The State recommended

       purposeful incarceration “with a modification out when she is successful[.]” Id.

       at 124. The presentence investigation report’s recommendation was identical to

       the State’s. The trial court agreed and recommended Colen for Incarceration

       with a Purpose and requested that she be placed in the GRIP Therapeutic

       Community. The trial court went on to say, “Should the Defendant

       successfully complete the GRIP program, the Court will consider modifying the

       Defendant’s sentence to probation to be supervised by the Jefferson County

       Community Corrections.” Id. at 130. The GRIP Therapeutic Community is an

       “in-patient substance abuse therapeutic community for offenders that have

       addictions to drugs or alcohol.” Jennifer Saroka, Offenders Get a GRIP,


       Court of Appeals of Indiana | Memorandum Decision 39A04-1706-CR-1365 | January 19, 2018   Page 8 of 9
       progressionINcorrections, 9 (Apr. 2008),

       https://www.in.gov/idoc/files/DOCNwsltrAprREV3(1).pdf. Inmates

       assigned to the GRIP community “develop a comprehensive re-entry plan that

       includes viable life skills, relapse prevention strategies and best placement for

       continuing growth.” Id.


[16]   Even if Colen does not complete Incarceration with a Purpose, the trial court

       sentenced her to the advisory term for a Level 4 felony. Six years is not

       inappropriate, particularly in light of the very real possibility of a modification

       down the road. Colen has failed to persuade us that her sentence is

       inappropriate.


[17]   Affirmed.


       May, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 39A04-1706-CR-1365 | January 19, 2018   Page 9 of 9
