Bryant Lamonte White v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule
65(D), this Memorandum Decision
shall not be regarded as precedent or
cited before any court except for the Nov 25 2015, 7:11 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael E. Hunt Gregory F. Zoeller
Bloomington, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bryant Lamonte White, November 25, 2015
Appellant-Defendant, Court of Appeals Case No.
53A01-1501-CR-42
v. Appeal from the Monroe Circuit
Court
State of Indiana, The Honorable Marc R. Kellams,
Appellee-Plaintiff. Judge
Trial Court Cause No.
53C02-1309-FA-952
May, Judge.
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[1] Bryant Lamonte White appeals his conviction of and sentence for Class A
felony conspiracy to commit dealing in a schedule I controlled substance. 1 He
presents four issues for our review:
1. Whether the trial court abused its discretion when it
admitted audio recordings of White speaking to a
confidential informant;
2. Whether the State presented sufficient evidence White
committed Class A felony conspiracy to commit dealing in
a schedule I controlled substance;
3. Whether the trial court abused its discretion when it did
not consider White’s proffered mitigators when sentencing
him; and
4. Whether White’s sentence is inappropriate based on his
character and the nature of his crime.
We affirm.
Facts and Procedural History
[2] On April 29, 2013, Bloomington Police Detective Mike Baker met with Dawn
Johnson, a confidential informant, for the purpose of making a controlled drug
1
Ind. Code § 35-48-4-2(a)(1) (dealing in a schedule I controlled substance in a family housing complex)
(2013); Ind. Code § 35-41-5-2 (conspiracy).
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buy. That afternoon, Johnson called White and arranged a purchase of heroin.
The call was recorded. Detective Baker searched Johnson, gave her $100.00 to
make the purchase, and watched Johnson walk into White’s apartment.
Johnson gave the money to Kristin Garrett, White’s girlfriend, who gave
Johnson heroin she and White previously had purchased together. Johnson
returned to Detective Baker with a substance he believed to be heroin.
[3] On April 30, 2015, Detective Baker met with Johnson and provided her with
$200 to purchase heroin from White in a controlled buy. He searched Johnson
and watched her walk into the apartment complex. Johnson returned ten
minutes later. Detective Baker searched Johnson and did not find drugs,
contraband, or money.
[4] On May 1, 2015, Detective Baker met with Johnson to finish the controlled buy
from April 30. Johnson called White and asked him, “Can I come get that, in
like five minutes?” (State’s Ex. 4) White responded, “You want the whole
thing?” (Id.) Johnson indicated she did and White asked why she “didn’t get it
the first time?” (Id.) Johnson stated she “didn’t want to do it all, you know
what I’m saying? I [sic] been doing it all too much, you know what I mean?”
(Id.) White answered in the affirmative, and Johnson told him she was on her
way to his apartment. Detective Baker searched Johnson before she went into
White’s apartment. Johnson returned with heroin she received from Garrett.
[5] On September 25, 2013, the State charged White with two counts of Class A
felony conspiracy to commit dealing in a schedule I controlled substance in a
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family housing complex. White’s jury trial took place on November 24 - 25,
2014. During trial, White objected to the admission of the recordings of calls
between him and Johnson on the grounds they were hearsay and Johnson was
not present for him to cross examine. The trial court overruled his objections.
The jury found White guilty of one count of Class A felony conspiracy to
commit dealing in a schedule I controlled substance. The trial court sentenced
him to forty years.
Discussion and Decision
Admission of Recorded Calls
[6] We typically review allegations of error in the admission of evidence for an
abuse of discretion, which occurs only when the trial court’s ruling is “clearly
against the logic, facts, and circumstances presented.” Kindred v. State, 973
N.E.2d 1245, 1252 (Ind. Ct. App. 2012), trans. denied. We consider only the
evidence in favor of the trial court’s ruling, Sallee v. State, 777 N.E.2d 1204,
1210 (Ind. Ct. App. 2002), trans. denied, and we will not reverse the decision to
admit or exclude evidence if that decision is sustainable on any ground.
Crawford v. State, 770 N.E.2d 775, 780 (Ind. 2002). The admission of the
recordings was not an abuse of discretion because the recordings were not
hearsay and their admission did not violate White’s right to confront witnesses
against him.
[7] Hearsay is “a statement, other than one made by the declarant while testifying
at the trial or hearing, offered into evidence to prove the truth of the matter
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asserted.” Ind. Evidence Rule 801(c). “Statements not admitted to prove the
truth of the matter do not run afoul of the hearsay rule - they are not hearsay.”
Angleton v. State, 686 N.E.2d 803, 809 (Ind. 1997). In Williams v. State, 930
N.E.2d 602, 607-09 (Ind. Ct. App. 2010), trans. denied, we held a confidential
informant’s statements presented in court that were “recorded in the course of a
controlled drug buy were not offered by the State to prove the truth of the
matter asserted” and thus were not hearsay. Id. at 608.
[8] “Statements providing context for other admissible statements are not hearsay
because they are not offered for their truth.” Id. at 609 (quoting United States v.
Tolliver, 454 F.3d 660, 666 (7th Cir. 2006), cert. denied, 549 U.S. 1149 (2007)).
Williams relied on Williams v. State, 669 N.E.2d 956 (Ind. 1996), in which the
statements of the confidential informant were not hearsay because “[i]t was the
statements made by [the defendant] that really constituted the evidentiary
weight of the conversation.” Id. at 958. 2 The same rationale applies here.
[9] The recorded calls between Johnson and White included discussions regarding
when Johnson might arrive at White’s apartment, and in the case of the second
call, the fact that Johnson wanted “the whole thing[.]” (State’s Ex. 4.) The
statements were offered to give context to the controlled buy because that
2
White’s statements are not hearsay under Evid. R. 801(d)(2) because they were statements of a party-
opponent.
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context explained the presence of heroin when Johnson returned to Detective
Baker. Therefore, we conclude these statements were not hearsay.
[10] Further, the statements did not violate White’s right to confront the witnesses
against him because they were not testimonial. Testimonial statements include
“statements that were made under circumstances which would lead an objective
witness reasonably to believe that the statement would be available for use at a
later trial.” Jackson v. State, 891 N.E.2d 657, 659 (Ind. Ct. App. 2008), trans.
denied, abrogated based on other grounds by Koenig v. State, 933 N.E.2d 1271, 1273
(Ind. 2010). The Sixth Amendment Confrontation Clause “does not bar the use
of testimonial statements for purposes other than establishing the truth of the
matter asserted.” Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004). As the
recorded statements between Johnson and White were offered to provide
context to the controlled buys and not to establish the truth of the matter
asserted, they are not testimonial and White’s right to confront witnesses was
not violated.
Sufficiency of Evidence
[11] When reviewing sufficiency of evidence to support a conviction, we consider
only probative evidence and reasonable inferences supporting the trial court’s
decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the fact-finder’s
role, and not ours, to assess witness credibility and weigh the evidence to
determine whether it is sufficient to support a conviction. Id. To preserve this
structure, when we are confronted with conflicting evidence, we consider it
most favorably to the trial court’s ruling. Id.Court of Appeals of Indiana | Memorandum Decision 53A01-1501-CR-42 | November 25, 2015 Page 6 of 12
[12] A conviction may be sustained on the uncorroborated testimony of a single
witness. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). To establish the
existence of a conspiracy to commit a crime, the State is not required to prove
there was a formal agreement between the parties. Dickenson v. State, 835
N.E.2d 542, 552 (Ind. Ct. App. 2005), trans. denied. Instead, an agreement may
be inferred from circumstantial evidence, which may be an overt act committed
by one of the conspirators. Id. We affirm a conviction unless no reasonable
fact-finder could find the elements of the crime proven beyond a reasonable
doubt. Drane, 867 N.E.2d at 146. It is therefore not necessary that the evidence
overcome every reasonable hypothesis of innocence; rather, the evidence is
sufficient if an inference reasonably may be drawn from it to support the trial
court’s decision. Id. at 147.
[13] To prove White conspired to commit dealing in a schedule I controlled
substance, the State was required to provide evidence White, on May 1, 2013,
agreed with Garrett to commit dealing heroin in a family housing complex and
Garrett performed an act in furtherance of that agreement, here, the delivery of
the heroin to Johnson. See Ind. Code § 35-48-4-2(a)(1) (elements of dealing in
schedule I controlled substance) (2014) and Ind. Code § 35-41-5-2 (elements of
conspiracy). White argues there was no evidence he conspired with Garrett to
deal heroin.
[14] Garrett testified:
[State]: The heroin that you sold to Miss Johnson, how did
you get it?
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[Garrett]: I bought it.
[State]: Did you buy it alone?
[Garrett]: No.
[State]: Who did you buy it with?
[Garrett]: Bryant [White].
[State]: And how did you two buy heroin?
[Garrett]: We put our money together and we bought it
together.
[15] (Tr. at 332-333.) Detective Baker testified he recognized White as the person
who spoke with Johnson on the recorded phone calls that provided information
about when Johnson was to pick up heroin at White’s and Garrett’s apartment.
When Johnson returned from the apartment she had heroin. This evidence is
sufficient, and White’s arguments to the contrary are invitations for us to judge
the credibility of witnesses and reweigh the evidence, which we cannot do. See
Drane, 867 N.E.2d at 146 (appellate court cannot judge the credibility of
witnesses or reweigh evidence presented at trial).
Sentencing - Abuse of Discretion
[16] When the trial court imposes a sentence within the statutory range, we review
for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),
clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). We may reverse a decision that is
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“clearly against the logic and effect of the facts and circumstances before the
court, or the reasonable, probable, and actual deductions to be drawn
therefrom.” Id. (quoting In re L.J.M., 473 N.E.2d 637, 640 (Ind. Ct. App.
1985)).
[17] Our review of the trial court’s exercise of discretion in sentencing includes an
examination of its reasons for imposing the sentence. Id. “This necessarily
requires a statement of facts, in some detail, which are peculiar to the particular
defendant and the crime . . . [and] such facts must have support in the record.”
Id. The trial court is not required to find mitigating factors or give them the
same weight that the defendant does. Flickner v. State, 908 N.E.2d 270, 273
(Ind. Ct. App. 2009). However, a court abuses its discretion if it does not
consider significant mitigators advanced by the defendant and clearly supported
by the record. Anglemyer, 868 N.E.2d at 490. Once aggravators and mitigators
have been identified, the trial court has no obligation to weigh those factors. Id.
at 491.
[18] The trial court sentenced White to forty years. White argues the trial court
abused its discretion when it did not give mitigating weight to the undue
hardship his dependents would experience because of his incarceration. The
trial court “is not required to find that a defendant’s incarceration will result in
undue hardship upon his dependents.” Davis v. State, 835 N.E.2d 1102, 1116
(Ind. Ct. App. 2005), trans. denied. Additionally, while White testified he
provided support for some of his seven children, he was convicted at one point
for Class D felony nonsupport of a dependent child. As the trial court is not
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required to give the same mitigating weight to a factor as White would propose,
see Flickner, 908 N.E.2d at 273, we hold the trial court did not abuse its
discretion when it sentenced White.
Inappropriate Sentence
[19] We may revise a sentence if it is inappropriate in light of the nature of the
offense and the character of the offender. Williams v. State, 891 N.E. 2d 621,
633 (Ind. Ct. App. 2008) (citing Ind. Appellate Rule 7(B)). We consider not
only the aggravators and mitigators found by the trial court, but also any other
factors appearing in the record. Roney v. State, 872 N.E.2d 192, 206 (Ind. Ct.
App. 2007), trans. denied. The appellant bears the burden of demonstrating his
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[20] When considering the nature of the offense, the advisory sentence is the starting
point to determine the appropriateness of a sentence. Anglemyer, 868 N.E.2d at
494. The advisory sentence for a Class A felony is thirty years, with a
sentencing range between twenty and fifty years. Ind. Code § 35-50-2-4(a). The
trial court sentenced White to forty years. 3
3
White asserts his sentence is inappropriate in light of the new sentencing structure put into effect on July 1,
2014. However, White committed his crime in 2013 and “the sentencing statute in effect at the time a crime
is committed governs the sentence for that crime.” Gutermuth v. State, 868 N.E.2d 427, 432 n.4 (Ind. 2007).
We recently held the General Assembly “intended the new criminal code to have no effect on criminal
proceedings for offenses committed prior to the enactment of the new code.” Marley v. State, 17 N.E.3d 335,
340 (Ind. Ct. App. 2014), trans. denied. Thus, White’s argument fails.
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[21] One factor we consider when determining the appropriateness of a deviation
from the advisory sentence is whether there is anything more or less egregious
about the offense committed by the defendant that makes it different from the
“typical” offense accounted for by the legislature when it set the advisory
sentence. Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App. 2008), trans. denied.
White conspired to deal heroin in a family housing complex in an apartment
where Garrett’s daughter resided. Nothing about his crime is more egregious
than any other related crime; however, White’s character tips the scales.
[22] When considering the character of the offender, one relevant fact is criminal
history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The
significance of a criminal history in assessing a defendant’s character varies
based on the gravity, nature, and number of prior offenses in relation to the
current offense. Id. White has four prior drug-related convictions, including
one for dealing cocaine. At the time of his trial, White had pending charges of
dealing in marijuana. White has committed multiple other crimes including
reckless driving, resisting law enforcement, possession of marijuana, and
nonsupport of a dependent child.
[23] Based on White’s character and the nature of the crime, we cannot say his
sentence was inappropriate.
Conclusion
[24] The trial court did not abuse its discretion when it admitted the recordings of
the calls between Johnson and White because the recordings were not hearsay
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and were not testimonial. There was sufficient evidence White committed
Class A felony conspiracy to commit dealing in a schedule I controlled
substance. Finally, the trial court did not abuse its discretion when sentencing
White and White’s forty year sentence was not inappropriate based on his
character and the nature of the crime. Accordingly, we affirm the judgment of
the trial court.
[25] Affirmed.
Crone, J., and Bradford, J., concur.
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