John F. Fyock v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JEFFREY G. RAFF GREGORY F. ZOELLER
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
RICHARD C. WEBSTER
Deputy Attorney General
FILED
Indianapolis, Indiana
May 17 2012, 9:27 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
JOHN F. FYOCK, )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-1109-CR-00421
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Wendy W. Davis, Judge
Cause No. 02D05-1010-FB-184
May 17, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
John F. Fyock was convicted of four counts of dealing in a schedule I, II or III
controlled substance,1 each as a Class B Felony. He was sentenced to twenty years each for
Counts I, II, and IV and ten years for Count III with all sentences to run concurrently. He
appeals and raises the following restated issues:
I. Whether the evidence was insufficient to support his conviction.
II. Whether the sentence was inappropriate in light of the nature of his
offenses and the character of the offender.
We affirm.
FACTS AND PROCEDURAL HISTORY
Douglas Holliday (“Holliday”) was a confidential informant making drug purchases
for the Fort Wayne Police Department (“FWPD”). Holliday knew Fyock and had previously
purchased narcotics from him. On September 17, 2010, the FWPD arranged a controlled buy
of narcotics between Holliday and Fyock. That day, Fyock sold heroin and methadone to
Holliday for $75. On September 23, 2010, the FWPD arranged another controlled buy
between Holliday and Fyock. Fyock sold heroin and methadone to Holliday for $100.
The State charged Fyock with four counts of dealing in a schedule I, II, or III
controlled substance. Holliday testified regarding the drug transactions, and the jury found
Fyock guilty of all counts. At Fyock’s sentencing hearing, the trial court found that Fyock
sold Holliday the narcotics while he was on parole and that Fyock’s criminal history
contained seven prior misdemeanor convictions, thirteen prior felony convictions, one
1
See Ind. Code § 35-48-4-2.
2
revocation of misdemeanor probation, one revocation of felony probation, and three parole
violations. No mitigating factors were found. The trial court sentenced Fyock to the
maximum of twenty years each for Counts I, II, and IV, and to ten years for Count III and
ordered that the sentences be served concurrently, for an aggregate sentence of twenty years.
Fyock now appeals.
DISCUSSION AND DECISION
I. Evidence Supporting Convictions
When reviewing a claim of sufficiency of the evidence, “we do not reweigh the
evidence or judge the credibility of the witnesses.” Hundley v. State, 951 N.E.2d 575, 579
(Ind. Ct. App. 2011). We consider only whether “the probative evidence and reasonable
inferences drawn from the evidence could have allowed a reasonable trier of fact to find the
defendant guilty beyond a reasonable doubt.” McHenry v. State, 820 N.E.2d 124, 126 (Ind.
2005) (citation omitted).
Fyock claims that the evidence is insufficient to support his convictions because
Holliday was not a credible witness. Holliday was a drug user and had much to gain as a
confidential informant for the FWPD.
Fyock’s argument asks this court to reweigh the evidence and the credibility of
Holliday, which we cannot do. Hundley, 951 N.E.2d at 579. It is the function of the jury to
“resolve conflicts in testimony and to determine the weight of the evidence and the credibility
of the witnesses.” Maxwell v. State, 731 N.E.2d 459, 462 (Ind. Ct. App. 2000). The jury
may believe or disbelieve witnesses as it sees fit. Mishler v. State, 894 N.E.2d 1095, 1102
3
(Ind. Ct. App. 2008). Holliday testified at trial regarding the drug transactions. The jury
determined beyond a reasonable doubt from the evidence presented to them at trial that
Fyock committed the crimes with which he was charged. We will not disturb the jury’s
decision.
II. Sentencing
“This court has authority to revise a sentence ‘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.’” Spitler v. State, 908 N.E.2d 694, 696 (Ind. Ct.
App. 2009) (quoting Ind. Appellate Rule 7(B)), trans. denied. “Although Indiana Appellate
Rule 7(B) does not require us to be ‘extremely’ deferential to a trial court’s sentencing
decision, we still must give due consideration to that decision.” Patterson v. State, 909
N.E.2d 1058, 1062-63 (Ind. Ct. App. 2009) (quoting Rutherford v. State, 866 N.E.2d 867,
873 (Ind. Ct. App. 2007)). We understand and recognize the unique perspective a trial court
brings to its sentencing decisions. Id. at 1063. The defendant bears the burden of persuading
this court that his sentence is inappropriate. Id.
Fyock argues that the nature of the offense does not justify the maximum sentence of
twenty years for three of his four convictions because Holliday and Fyock were both drug
users and the transactions between them involved a small sum of money. Fyock’s arguments
provide unpersuasive mitigating factors for revising his sentence in light of the nature of the
offense. Fyock engaged in the sale of heroin and methadone for profit and did so while he
was on parole. Additionally, Fyock has conceded that his criminal history precludes a
4
sentence revision based on the character of the offender. Appellant’s Br. at 7. Fyock’s seven
prior misdemeanor convictions and thirteen prior felony convictions, among many other
infractions, weigh heavily against revision of his sentence. Fyock has not met his burden,
and we therefore conclude that his sentence was not inappropriate in light of the nature of the
offense and character of the offender.
Affirmed.
BAKER, J., and BROWN, J., concur.
5