Robert Lee Brady, Jr. v. State of Indiana (mem. dec.) , 121 N.E.3d 145 ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 29 2019, 9:52 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing 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
Troy D. Warner Curtis T. Hill, Jr.
Public Defender’s Office Attorney General of Indiana
South Bend, Indiana
Ellen H. Meilaender
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert Lee Brady, Jr., January 29, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1395
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jeffrey L. Sanford,
Appellee-Plaintiff. Judge
Trial Court Cause No.
71D03-1708-F2-10
Barteau, Senior Judge.
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Statement of the Case
[1] Appellant Robert Brady, Jr. appeals his conviction of Level 2 felony dealing in
1
methamphetamine. We affirm.
Issue
[2] Brady presents one issue for our review: whether the State presented sufficient
evidence to support his conviction of dealing in methamphetamine.
Facts and Procedural History
[3] On August 2, 2017, Jermon Gavin contacted his friend, Ron Snyder, about
obtaining one and one-half pounds of methamphetamine. Snyder called Josh
Sage, who indicated he could provide the methamphetamine for the price of
$13,500, to which Snyder added $500 as his fee. Later that same day, Sage and
his brother, Brady, arrived at Snyder’s house armed with handguns. They hung
out with Snyder in the basement during which time they smoked some
methamphetamine provided by Sage.
[4] Before going to Snyder’s house to obtain the drugs, Gavin and his friends Jesus
Pedraza, Benito Pedraza, and Damon Bethel discussed turning the drug
purchase into a robbery, and they armed themselves with handguns. On the
way, they pointed out Snyder’s house to Bethel and then dropped him off
around the corner. When they arrived at Snyder’s house to purchase the
1
Ind. Code § 35-48-4-1.1(a)(2), (e)(1) (2017).
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methamphetamine, Snyder, Sage, and Brady went to the garage to conduct the
transaction with them.
[5] The men talked in the garage until Jesus asked Snyder for a scale. Snyder went
to the basement to retrieve a scale and then returned to the garage. Sage and
Brady produced the drugs as “a team,” and Sage, with Brady standing “right
next to him,” proceeded to weigh the methamphetamine. Tr. Vol. 3, pp. 78,
76. As the drugs were being weighed, Brady stated, “I told you it’s all there.
It’s just a little shaky.” Id. at 76.
[6] Suddenly, Bethel appeared in the garage and someone was heard to say, “Don’t
nobody move. Give me that shit.” Id. at 81. Gun shots were fired, and Snyder
ran outside the garage to the side of the house to hide his personal stash of
drugs. Brady ran by Snyder and out to the yard with the bag of
methamphetamine. Id. at 50. At some point, Brady went to the kitchen to wipe
down the guns.
[7] As a result of the gunfire, Sage and Bethel were shot, and Bethel died. During
their investigation, the police found in the yard a gray plastic grocery bag that
contained two Ziploc baggies of what was later determined to be approximately
548 grams of methamphetamine. Testing revealed that a red substance found
on both Ziploc baggies and on the gray grocery bag was Brady’s blood, likely
from an injury he sustained to his hand.
[8] Based upon this incident, Brady was charged with Count I dealing in
methamphetamine, a Level 2 felony; Count II attempted dealing in
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2
methamphetamine, a Level 2 felony; and Count III carrying a handgun
3
without a license, a Class A misdemeanor. Following a jury trial, Brady was
found guilty as charged on all counts. At sentencing, the court merged Count II
into Count I and ordered an aggregate sentence of eighteen and one-half years
on Counts I and III. Brady now appeals his conviction of dealing in
methamphetamine.
Discussion and Decision
[9] When an appellant challenges the sufficiency of the evidence of his conviction
after a jury verdict, “the appellate posture is markedly deferential to the
outcome below.” Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016). Upon
such a review, we neither reweigh the evidence nor judge the credibility of the
witnesses. Brasher v. State, 746 N.E.2d 71, 72 (Ind. 2001). Instead, we consider
only the evidence most favorable to the verdict and any reasonable inferences
drawn therefrom. Id. If there is probative evidence from which a reasonable
jury could have found the defendant guilty beyond a reasonable doubt, we will
affirm the conviction. Dillard v. State, 755 N.E.2d 1085, 1089 (Ind. 2001).
[10] At trial, the State alleged that Brady committed dealing in methamphetamine in
conjunction with Sage, and the court instructed the jury on accomplice liability.
In order to convict Brady of dealing in methamphetamine as an accomplice, the
2
Ind. Code §§ 35-41-5-1 (2014), 35-48-4-1.1(a)(2), (e)(1).
3
Ind. Code § 35-47-2-1 (2017).
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State was required to prove beyond a reasonable doubt that he knowingly or
intentionally aided, induced, or caused another person to commit this offense.
See Ind. Code § 35-41-2-4 (1977). To obtain a conviction of dealing in
methamphetamine as charged in this case, the State was required to prove
beyond a reasonable doubt that (1) Brady (2) possessed with intent to deliver (3)
at least 10 grams of methamphetamine. Appellant’s App. Vol. 2, p. 26; see also
Ind. Code § 35-48-4-1.1(a)(2), (e).
[11] A person who aids another in committing a crime is just as guilty as the actual
perpetrator. Lothamer v. State, 44 N.E.3d 819, 822 (Ind. Ct. App. 2015), trans.
denied. An accomplice can be charged as a principal for all acts committed in
the accomplishment of the crime. Smith v. State, 809 N.E.2d 938, 944 (Ind. Ct.
App. 2004), trans. denied. It is not necessary that the evidence show the
accomplice personally participated in the commission of each element of the
offense. Griffin v. State, 16 N.E.3d 997, 1003 (Ind. Ct. App. 2014). Rather,
mere tangential involvement in the crime can be sufficient to convict a person
as an accomplice. Berry v. State, 819 N.E.2d 443, 450 (Ind. Ct. App. 2004),
trans. denied. Further, an accomplice is “criminally responsible for everything
which follows incidentally in the execution of the common design, as one of its
natural and probable consequences, even though it was not intended as part of
the original design or common plan.” Griffin, 16 N.E.3d at 1003.
[12] There is no bright-line rule in determining accomplice liability; rather, the
particular facts and circumstances of each case must be considered to determine
whether a person participated in the offense as an accomplice. Castillo v. State,
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974 N.E.2d 458, 466 (Ind. 2012). In order for an accomplice’s conviction to
stand:
[T]here must be evidence of his affirmative conduct, either in the
form of acts or words, from which an inference of a common
design or purpose to effect the commission of a crime may be
reasonably drawn. Each participant must knowingly or
intentionally associate himself with the criminal venture,
participate in it, and try to make it succeed. That said, the State
need not show that [he] was a party to a preconceived scheme; it
must merely demonstrate concerted action or participation in an
illegal act.
Griffin, 16 N.E.3d at 1003-04 (internal citations omitted).
[13] While a defendant’s presence at the scene or lack of opposition to a crime,
standing alone, is insufficient to establish accomplice liability, courts may
consider presence in conjunction with other factors to determine whether one
acted as an accomplice to a crime. Tuggle v. State, 9 N.E.3d 726, 736 (Ind. Ct.
App. 2014), trans. denied. The four factors relevant to this inquiry are: (1)
presence at the scene of the crime, (2) companionship with another at the scene
of the crime, (3) failure to oppose commission of the crime, and (4) course of
conduct before, during, and after occurrence of the crime. Id.
(1) Presence at the Scene
[14] The evidence shows that Brady arrived at Snyder’s house with his brother,
Sage. He remained at the house hanging out and smoking methamphetamine
with his brother and Snyder and participating in the drug transaction in the
garage until it was cut short by gunfire.
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(2) Companionship at the Scene
[15] The State presented evidence that Brady arrived at Snyder’s house with his
brother, Sage, whom Snyder had called to obtain drugs. Brady and Sage were
both armed with handguns, and they both smoked methamphetamine with
Snyder in his basement. When Gavin arrived to purchase the drugs, Brady,
Snyder, and Sage all went to the garage to conduct the transaction. Brady
remained in the garage talking with everyone, and he and Sage jointly produced
the drugs for weighing. In a coordinated endeavor, Brady and Sage weighed
the drugs as Brady assured the men the bags contained the full one and one-half
pounds of methamphetamine.
(3) Failure to Oppose Commission of the Crime
[16] Not only did Brady not oppose the sale of the methamphetamine, he
unreservedly participated in the sale in concert with his brother.
(4) Course of Conduct
[17] Brady, armed with a handgun, accompanied his brother to Snyder’s house to
conduct a drug deal. While there, he smoked methamphetamine and
collaborated with his brother to weigh the drugs. As gunfire erupted in the
garage, Brady took the bags of methamphetamine and ran outside to hide them.
He then wiped down his gun and sought a place to conceal it as well. From this
evidence, a jury could reasonably conclude that Brady was guilty of dealing in
methamphetamine as an accomplice.
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[18] Brady additionally contends the evidence is insufficient to support his
conviction because Snyder’s testimony “regarding the source of the meth is
incredibly dubious and uncorroborated.” Appellant’s Br. p. 15. Brady argues
that Snyder’s testimony that Sage provided the methamphetamine and that
Snyder was only a middle man does not make sense. Brady suggests that
Snyder provided the drugs and that Brady and Sage were Snyder’s security
men.
[19] Appellate courts may apply the incredible dubiosity rule to impinge upon a
jury’s function to judge the credibility of a witness only when confronted with
inherently improbable testimony or coerced, equivocal, wholly uncorroborated
testimony of incredible dubiosity. Whatley v. State, 908 N.E.2d 276, 282 (Ind.
Ct. App. 2009), trans. denied. Application of this rule is rare and is limited to
cases where a single witness presents inherently contradictory testimony which
is equivocal or the result of coercion and there is a complete lack of
circumstantial evidence of guilt. Id. The standard to be applied for this rule is
whether the testimony is so incredibly dubious or inherently improbable that no
reasonable person could believe it. Fancher v. State, 918 N.E.2d 16, 22 (Ind. Ct.
App. 2009).
[20] At trial Snyder testified unequivocally that he did not provide the
methamphetamine for this sale and that he did not have the methamphetamine
at his house at the beginning of the night. He also testified that he contacted
Sage to get the methamphetamine for Gavin and that Sage quoted him a price
of $13,500. Upon arriving at the house, Sage produced some
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methamphetamine that he, Brady, Snyder and others smoked in the basement.
When Snyder retrieved the scale, Sage first complained that it was not big
enough and then went on to produce and weigh the methamphetamine.
Moreover, Snyder’s testimony was corroborated by Gavin. Gavin testified that
Sage and Brady produced the methamphetamine as a team, that Brady stood
with Sage while he weighed the drugs, and that Brady assured the men that it
was all there.
[21] It is within the factfinder’s province to judge the credibility of the witnesses.
Brasher, 746 N.E.2d at 73. In doing so, the trier of fact is entitled to determine
which version of the incident to credit. Schmid v. State, 804 N.E.2d 174, 179
(Ind. Ct. App. 2004), trans. denied. Snyder’s testimony is not so incredibly
dubious or inherently improbable that no reasonable person could believe it.
Brady’s argument is merely an invitation for this Court to invade the province
of the trier of fact by reassessing witness credibility. We decline the invitation.
Conclusion
[22] For the reasons stated, we conclude there was sufficient evidence to support
Brady’s conviction of dealing in methamphetamine as an accomplice.
[23] Affirmed.
Robb, J., and Tavitas, J., concur.
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