                                                                                FILED
                                                                           May 18 2016, 8:06 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Daniel J. Vanderpool                                      Gregory F. Zoeller
Vanderpool Law Firm, PC                                   Attorney General
Warsaw, Indiana
                                                          Paula J. Beller
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Joshua Schaaf,                                            May 18, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          85A04-1506-CR-796
        v.                                                Appeal from the Wabash Circuit
                                                          Court
State of Indiana,                                         The Honorable Robert R.
Appellee-Plaintiff                                        McCallen, III, Judge
                                                          Trial Court Cause No.
                                                          85C01-1407-FA-624



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 85A04-1506-CR-796 | May 18, 2016                       Page 1 of 10
                                           Case Summary
[1]   Joshua Schaaf appeals his convictions and sentence for two counts of dealing

      heroin. We conclude that the State presented sufficient evidence to support

      Schaaf’s convictions. However, we find that his forty-year sentence is

      inappropriate in light of the nature of his offenses. Therefore, we remand this

      matter to the trial court with instructions to impose a sentence of thirty years.



                             Facts and Procedural History
[2]   The basic facts are undisputed. The charges against Schaaf arose from his role

      in two controlled drug buys. In April 2014, Schaaf drove Randall Conliff to a

      gas station, where a confidential informant entered Schaaf’s pickup and, while

      Schaaf looked on, gave Conliff $50.00 in exchange for 10/100ths of a gram of

      heroin. Based on that transaction, the State charged Schaaf with dealing in a

      narcotic drug as a Class B felony (Count I). See Ind. Code Ann. § 35-48-4-

      1(a)(1) (West 2012). The next month, the same confidential informant went to

      Conliff’s house to buy more heroin from Conliff. However, Conliff turned him

      away, and he ended up buying 8/100ths of a gram of heroin for $50.00 from

      Schaaf, who also happened to be present. Because Conliff’s house was within

      1000 feet of a public park (actually, two public parks), the dealing charge for

      this second transaction was enhanced to a Class A felony (Count II). See id. at

      (b)(3)(B)(ii). A jury found Schaaf guilty on both counts.




      Court of Appeals of Indiana | Opinion 85A04-1506-CR-796 | May 18, 2016    Page 2 of 10
[3]   In sentencing Schaaf, the trial court found no mitigating circumstances but

      three aggravating circumstances: (1) Schaaf’s criminal history; (2) the fact that

      a seventeen- or eighteen-year-old male (possibly Conliff’s cousin) was present

      during the second transaction; and (3) the fact that Schaaf had not succeeded on

      probation in the past. The trial court imposed sentences of fifteen years on

      Count I and forty years on Count II and ordered them to run concurrently, for a

      total sentence of forty years.



                                 Discussion and Decision
[4]   Schaaf argues that the evidence is insufficient to support his two convictions.

      He also contends that, even if his convictions stand, his sentence is

      inappropriate.


                               I. Sufficiency of the Evidence
[5]   In reviewing the sufficiency of the evidence supporting a conviction, we

      consider only the probative evidence and reasonable inferences supporting the

      verdict. Wilson v. State, 39 N.E.3d 705, 716 (Ind. Ct. App. 2015), trans. denied.

      We do not reweigh the evidence or assess witness credibility. Id. We consider

      conflicting evidence most favorably to the verdict. Id. We will affirm the

      conviction unless no reasonable fact-finder could find the elements of the crime

      proven beyond a reasonable doubt. Id. It is not necessary that the evidence

      overcome every reasonable hypothesis of innocence. Id. The evidence is

      sufficient if an inference may reasonably be drawn from it to support the

      verdict. Id.
      Court of Appeals of Indiana | Opinion 85A04-1506-CR-796 | May 18, 2016   Page 3 of 10
                                A. Count I (First Transaction)
[6]   Schaaf asserts that the State failed to prove he was anything more than a

      bystander with regard to the first transaction and that we must therefore reverse

      his conviction on Count I. In response, the State concedes that Schaaf did not

      personally deliver the heroin to the confidential informant, but it contends that

      it presented sufficient evidence for the jury to find Schaaf guilty as Conliff’s

      accomplice. We agree with the State.

[7]   Indiana’s accomplice-liability statute provides, in part, “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. Under this statute,

      an individual who aids another person in committing a crime is as guilty as the

      actual perpetrator. Specht v. State, 838 N.E.2d 1081, 1093 (Ind. Ct. App. 2005),

      trans. denied. The statute does not set forth a separate crime, but merely

      provides a separate basis of liability for the crime that is charged. Id. at 1092.

      That is, a person can be charged as a principal and convicted as an accomplice.

      Id.


[8]   Furthermore, a person can be convicted as an accomplice even if he did not

      participate in each and every element of the crime. Id. at 1093. Our Supreme

      Court has identified four factors that can be considered by the fact-finder in

      determining whether a defendant aided another in the commission of a crime:

      (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


      Court of Appeals of Indiana | Opinion 85A04-1506-CR-796 | May 18, 2016     Page 4 of 10
       of conduct before, during, and after the occurrence of the crime. Wieland v.

       State, 736 N.E.2d 1198, 1202 (Ind. 2000). Here, all four factors weigh heavily

       in favor of Schaaf’s guilt on Count I.

[9]    It is undisputed that Schaaf was present at the scene of the crime, that he and

       Conliff were companions who spent significant time together, and that he failed

       to oppose the crime. Most probative, though, is Schaaf’s conduct before and

       during the crime. Conliff called the confidential informant shortly before they

       were supposed to meet, told him that he was with Schaaf, and proposed that

       they meet at Schaaf’s house. Hearing this, Schaaf interjected and suggested that

       the meeting happen at a particular gas station. Conliff and the confidential

       informant agreed, and Schaaf took Confliff to the gas station. Upon arrival,

       Schaaf allowed the confidential informant into his pickup and sat calmly as

       Conliff and the informant completed the exchange. While Schaaf did not

       participate in the actual exchange, he brought the two participants together and

       provided them with a place to conduct their business.


[10]   In challenging the sufficiency of the evidence on Count I, Schaaf relies

       exclusively on his own testimony. Specifically, Schaaf testified that he thought

       he and Conliff were just going somewhere to get high and that he did not know

       Conliff was planning to sell heroin to the person they were meeting along the

       way. However, the jury clearly did not believe Schaaf, and we will not second

       guess that credibility determination or otherwise reweigh the evidence. Wilson,

       39 N.E.3d at 716. We affirm Schaaf’s conviction on Count I.



       Court of Appeals of Indiana | Opinion 85A04-1506-CR-796 | May 18, 2016     Page 5 of 10
                               B. Count II (Second Transaction)
[11]   With regard to Count II, Schaaf does not deny that there is evidence that he

       sold heroin to the confidential informant or that the transaction occurred within

       1000 feet of a public park. Rather, he contends that the enhancement from a

       Class B felony to a Class A felony based on the proximity to the park should be

       vacated because the State did not prove that he knew he was within 1000 feet of

       a public park.

[12]   Schaaf acknowledges that our Supreme Court held in Walker v. State that

       proximity to a particular location during a drug deal is a strict-liability element,

       meaning that the defendant need not be aware of the proximity. 668 N.E.2d

       243, 244-45 (Ind. 1996) (addressing enhancement based on proximity to

       school); see also Whatley v. State, 928 N.E.2d 202, 205 (Ind. 2010) (“In Walker,

       we held that presence in a school-zone was a strict-liability element.”).

       However, he asks that we “reexamine” the holding in Walker in light of the

       2014 amendments to Indiana’s criminal code, which he says established a

       knowledge requirement for the proximity enhancements applicable. See, e.g.,

       Pub. L. 158-2013, § 622 (eff. July 1, 2014); Pub. L. 168-2014, § 91 (eff. July 1,

       2014); Pub. L. 226-2014(ts), § 6 (eff. July 1, 2014); Pub. L. 44-2016, § 2 (eff.

       July 1, 2016). But even if Schaaf is correct about the effect of the amendments

       (an issue we do not reach), those amendments did not go into effect until July 1,

       2014, nearly two months after Schaaf’s offense. Therefore, the State properly

       charged Schaaf under the pre-amendment version of Indiana Code section 35-



       Court of Appeals of Indiana | Opinion 85A04-1506-CR-796 | May 18, 2016      Page 6 of 10
       48-4-1, and Walker controls our resolution of Schaaf’s claim. We affirm his

       conviction on Count II.1


                                                  II. Sentence
[13]   Schaaf argues that even if we affirm his convictions, we should reduce his

       sentence pursuant to Indiana Appellate Rule 7(B), which provides that an

       appellate 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.” Because we generally defer to the judgment of trial courts in

       sentencing matters, Norris v. State, 27 N.E.3d 333, 335-36 (Ind. Ct. App. 2015),

       defendants have the burden of persuading us that their sentences are

       inappropriate, Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014).

       “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. (citing Cardwell v. State,

       895 N.E.2d 1219, 1224 (Ind. 2008)).


[14]   On Count I, a Class B felony, Schaaf faced a sentencing range of six to twenty

       years, with an advisory sentence of ten years. Ind. Code Ann. § 35-50-2-5(a)

       (West 2012). The trial court imposed a sentence of fifteen years. On Count II,




       1
         To the extent that Schaaf asks us to overrule our Supreme Court’s holding in Walker, we cannot do so. See,
       e.g., Candler v. State, 837 N.E.2d 1100, 1105 n.6 (Ind. Ct. App. 2005) (“[W]e are bound by our Supreme
       Court’s decisions[.]”), reh’g denied.

       Court of Appeals of Indiana | Opinion 85A04-1506-CR-796 | May 18, 2016                          Page 7 of 10
       a Class A felony, Schaaf faced a range of twenty to fifty years, with an advisory

       sentence of thirty years. Ind. Code Ann. § 35-50-2-4(a) (West 2012). The trial

       court imposed a sentence of forty years, to run concurrently with the fifteen

       years on Count I.2

[15]   We agree with the trial court that Schaaf’s criminal history, which includes six

       felonies and six misdemeanors, is a significant aggravating circumstance.

       However, his offenses in this case were relatively minor as drug deals go: both

       sales were to a confidential informant, both were monitored by law

       enforcement, and both involved very small amounts of heroin. In addition,

       Schaaf did not personally deliver the drugs in the first transaction, and the

       second transaction was not the result of active solicitation by Schaaf but of a

       failed police operation targeted at Conliff. We conclude that while Schaaf’s

       criminal history would make below-advisory sentences inappropriately lenient,

       the nature of his offenses renders his above-advisory sentences inappropriately

       harsh. Therefore, we remand this matter to the trial court with instructions to

       impose advisory sentences of ten years on Count I and thirty years on Count II



       2
         As noted above, on July 1, 2014, less than three months after Schaaf committed his offenses, significant
       amendments to Indiana’s drug laws went in to effect. See Pub. L. 158-2013; Pub. L. 168-2014; Pub. L. 217-
       2014; Pub. L. 226-2014(ts). If Schaaf had committed his offenses on or after that date, Count I would have
       been a Level 5 felony subject to a sentencing range of one to six years, and Count II would have been a Level
       4 felony subject to a sentencing range of two to twelve years. See Ind. Code § 35-50-2-6(b) (“A person who
       commits a Level 5 felony (for a crime committed after June 30, 2014) shall be imprisoned for a fixed term of
       between one (1) and six (6) years, with the advisory sentence being three (3) years.”); Ind. Code § 35-50-2-5.5
       (“A person who commits a Level 4 felony shall be imprisoned for a fixed term of between two (2) and twelve
       (12) years, with the advisory sentence being six (6) years.”). However, our legislature enacted savings clauses
       that specifically prohibit courts from taking the statutory changes into consideration when addressing
       offenses committed before July 1, 2014. See Marley v. State, 17 N.E.3d 335, 340 (Ind. Ct. App. 2014) (citing
       Ind. Code §§ 1-1-5.5-21 and -22), trans. denied.

       Court of Appeals of Indiana | Opinion 85A04-1506-CR-796 | May 18, 2016                            Page 8 of 10
       and to run the two sentences concurrently, for a total sentence of thirty years.

       Cf. Norris, 27 N.E.3d at 336 (reducing twenty-year sentence to twelve years with

       four suspended where defendant “sold ten hydrocodone tablets for $60 to a

       confidential informant during a controlled buy that was closely monitored by

       the police”).

[16]   Affirmed in part and reversed and remanded in part.

       Barnes, J., concurs.


       Mathias, J., concurs in part and dissents in part in a separate opinion.




       Court of Appeals of Indiana | Opinion 85A04-1506-CR-796 | May 18, 2016     Page 9 of 10
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Joshua Schaaf,                                            Court of Appeals Case No.
                                                                 85A04-1506-CR-796
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff




       Mathias, Judge, concurring in part and dissenting in part


[17]   I agree that Schaaf’s convictions are supported by sufficient evidence. However,

       with all due and great respect for my colleagues, I respectfully dissent with

       regard to the majority’s decision to revise Schaaf’s sentence. The forty-year

       sentence imposed was less than the maximum, and giving due deference to the

       trial court, I believe the sentence was not inappropriate in light of the offender’s

       character. Ind. App. R. 7(B); Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007).




       Court of Appeals of Indiana | Opinion 85A04-1506-CR-796 | May 18, 2016                Page 10 of 10
