Harry Spicer v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 30 2017, 8:30 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kathie A. Perry Curtis T. Hill, Jr.
Baldwin Kyle & Karnish Attorney General of Indiana
Franklin, Indiana
Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Harry Spicer, January 30, 2017
Appellant-Defendant, Court of Appeals Case No.
15A01-1512-CR-2205
v. Appeal from the Dearborn Circuit
Court
State of Indiana, The Honorable James D.
Appellee-Plaintiff. Humphrey, Judge
Trial Court Cause No.
15C01-1404-FA-35
Pyle, Judge.
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Statement of the Case
[1] Harry Spicer (“Spicer”) appeals, following a jury trial, his conviction and
sentence for Class A felony conspiracy to commit dealing in
methamphetamine.1 Spicer argues that there was insufficient evidence to
support his conviction and that his forty-year sentence is inappropriate.
Concluding that there is sufficient evidence to support Spicer’s conviction and
that Spicer—who was on probation from his conviction for Class B felony
conspiracy to deal in a narcotic drug (methamphetamine) at the time of his
offense—has failed to show that his sentence is inappropriate, we affirm his
conviction and sentence.
[2] We affirm.
Issues
1. Whether sufficient evidence supports Spicer’s conviction.
2. Whether Spicer’s sentence is inappropriate pursuant to
Indiana Appellate Rule 7(B).
Facts
[3] In January 2014, several law enforcement agencies—including officers in
Dearborn County, Indiana and in Butler County, Ohio—were engaged in an
1
IND. CODE § 35-41-5-2; I.C. § 35-48-4-1.1. We note that, since the time of Spicer’s offense, the dealing in
methamphetamine statute has been twice amended, effective July 2014 and July 2016, and that the
conspiracy statute has been amended, effective July 2014. Because Spicer committed his offense in February
2014, we will apply the statutes in effect at that time.
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investigation regarding a methamphetamine manufacturing operation. Spicer’s
brother, Sam Spicer (“Sam”), and Lisa Ellis (“Ellis”) were two of the suspects
in the methamphetamine manufacturing investigation. Through their
investigation, officers discovered, in relevant part, that Ellis and Sam would
take pseudoephedrine to a residence in Butler County, Ohio, where Vernis
Newton (“Newton”) would use the pseudoephedrine to manufacture
methamphetamine.2 For each 96-count box of pseudoephedrine that Ellis and
Sam provided, Newton was able to manufacture two grams of
methamphetamine, of which one gram would go to Newton and the other gram
would go to Ellis and Sam to share. To obtain the necessary pseudoephedrine,
Ellis and Sam either purchased the pseudoephedrine themselves or—due to
monthly quantity limitations on how much pseudoephedrine a person could
purchase3—they paid other people to purchase it.4
[4] Around February 6, 2014, Ellis and Sam took five boxes of pseudoephedrine to
Newton in Ohio so he could make some methamphetamine. While Ellis and
2
The residence was owned by Mike Wiscupps (“Wiscupps”) but used by Newton to manufacture the
methamphetamine.
3
According to a police officer’s testimony at trial, a person is limited to purchasing 7.2 grams of
pseudoephedrine every thirty days. See also IND. CODE § 35-48-4-14.7(e)(2) (2014) (providing that a “person
may not purchase drugs containing more than . . . seven and two-tenths (7.2) grams of . . . pseudoephedrine .
. . in a thirty (30) day period[.]”).
4
Ellis and Sam paid these people to purchase the pseudoephedrine with either methamphetamine or
Suboxone.
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Sam were in Ohio, their car broke down. They borrowed Newton’s car, went
to a Walmart, and Sam was arrested for shoplifting.
[5] The following day, Ellis contacted Spicer about getting Sam bonded out of jail.
Spicer and Ellis exchanged text messages and also spoke by phone. They were
ultimately unable to bond Sam out of jail that day.5 Before returning to
Indiana, Spicer took Ellis to see Newton, who “owed” Ellis some
methamphetamine. (Tr. 107). Spicer drove Ellis back home to Indiana, and
she shared the methamphetamine with Spicer. Ellis and Spicer then discussed
taking boxes of pseudoephedrine to Newton the following day, and they each
agreed to obtain some pseudoephedrine.
[6] On February 8, 2014, Ellis texted Newton and told him, “Harry [Spicer]
wanted me to ask you if you will do the same for him as you do [S]ammy [and]
if so[]can we come see you[?]” (State’s Ex. 21). Newton responded, “How
many[?]” (State’s Ex. 21). Ellis texted “5[,]” and Newton responded, “Come
on[.]” (State’s Ex. 21).
[7] Ellis had already purchased her monthly limit of pseudoephedrine, so she took
Sebastian Duerstock (“Duerstock”) to a grocery store in Lawrenceburg to
purchase a box of pseudoephedrine for her. Spicer, who was prohibited by law
from purchasing pseudoephedrine due to his prior conviction, got someone else
to purchase three boxes of pseudoephedrine. Spicer and Ellis then took the four
5
Sam was able to bond out of jail on February 10, 2014.
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boxes of pseudoephedrine to Newton in Ohio. They expected that they would
ultimately get four grams of methamphetamine since those four boxes would be
used to manufacture eight grams of methamphetamine. Newton gave them one
gram of methamphetamine and said he needed to make some more, so they
planned to return later to collect their other three grams of methamphetamine.
Spicer and Ellis, however, were unable to return to collect the manufactured
methamphetamine from Newton because he was arrested the following day.6
[8] On February 13, 2014, Ellis, who was using methamphetamine, called the
police because Sam was “drunk” and “was yelling all in [her] face[.]” (Tr. 114).
When speaking to the police, Ellis ended up telling them about the multiple
people involved in the pseudoephedrine purchasing/methamphetamine
manufacturing scheme. She also specifically mentioned that Spicer was using
methamphetamine and had gathered boxes of pseudoephedrine to take to Ohio
when Sam was in jail. The police obtained a search warrant for Ellis’s cell
phone records, performed a forensic analysis of her phone, and then conducted
a recorded interview with Ellis on March 26, 2014. During this interview, the
police questioned her about Spicer’s involvement.
[9] Thereafter, on April 4, 2014, the State charged Spicer with Class A felony
conspiracy to commit dealing in methamphetamine (based on manufacturing)
6
Following Newton’s arrest, the police executed a search warrant at the property that Newton used to
manufacture the methamphetamine, and they found evidence and ingredients of an active methamphetamine
lab.
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in an amount of three grams or more. The overt act alleged to be in furtherance
of the agreement was the purchase of pseudoephedrine by Spicer or Ellis for the
manufacture of methamphetamine.7
[10] The trial court held a four-day jury trial on October 5-8, 2015. Ellis testified
that on February 7, 2014, she and Spicer had a “conversation” “in person” and
“planned” to get pseudoephedrine to give to Newton so he could manufacture
some methamphetamine. (Tr. 152). She also testified that she and Spicer
obtained a total of four boxes of pseudoephedrine and took them to Newton in
Ohio. The State introduced into evidence a copy of Ellis’s text messages with
Spicer and Newton.
[11] The trial court instructed the jury regarding the Class A felony conspiracy to
commit dealing in methamphetamine in an amount of three grams or more
charge, and it also gave an included-offense instruction for Class B felony
conspiracy to commit dealing in methamphetamine. The jury convicted Spicer
of the Class A felony as charged.
[12] When sentencing Spicer, the trial court found that his criminal history,
including his commission of the current offense when on probation, was a
7
Aside from Spicer, twenty-five people, including Ellis, Sam, and Newton, ended up being charged with
conspiracy to commit dealing in methamphetamine, and they all, with exception of Spicer, pled guilty to the
charge.
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“significant” aggravating circumstance. (Tr. 325). Specifically, when
addressing this aggravator, the trial court stated:
The Pre-Sentence Investigation Report indicates [Spicer] has had
one prior felony conviction and four other prior unrelated
misdemeanor convictions. Even more significant is that [Spicer]
was on probation for Dealing in a Narcotic Drug
(Methamphetamine), a Class B felony, and Conspiracy to Deal
in a Narcotic Drug (Methamphetamine), a Class B felony when
he committed his current offense. [Spicer] is currently serving a
probation violation sentence [and] a term of twelve years w[as]
revoked in Cause No. 15D02-0610-FB-014 based upon the
current case. The Court finds it significant that this is now
[Spicer’s] second conviction involving Dealing in
Methamphetamine in less than ten years. The Court also finds it
significant that [Spicer] was given a relatively lenient sentence for
his prior offenses and failed to take advantage of that
opportunity. The Court also finds that [Spicer] now has two
probation violations.
(Tr. 325-26).8 The trial court also addressed Spicer’s proposed mitigating
circumstances, which included undue hardship to his minor children and
Spicer’s health problems.9 The trial court rejected the undue hardship
mitigator, finding that Spicer had failed to show any undue hardship as his
mother had been caring for his children, who were ages eighteen and fourteen.
8
Spicer appealed the revocation of his probation, and our Court affirmed the trial court’s judgment. See
Spicer v. State, No. 15A04-1504-CR-148 (Ind. Ct. App. Nov. 13, 2015).
9
The trial court recognized that Spicer had a prior heart attack, which resulted in the placement of four stints
and that he “suffers from Type II diabetes, rheumatoid arthritis, high cholesterol, [and] high blood pressure
for which he takes daily medication to manage these medical conditions.” (Tr. 326).
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The trial court found that Spicer’s health was a mitigating factor, but it
determined that it was not a significant factor given his continued involvement
with illegal drugs. The trial court imposed a forty (40) year sentence to be
executed in the Department of Correction consecutively to his sentence from
his probation revocation. Spicer now appeals.
Decision
1. Sufficiency of Evidence
[13] Spicer argues that the evidence was insufficient to support his Class A felony
conspiracy to commit dealing in methamphetamine conviction.
[14] “When conducting a sufficiency of the evidence review 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). Our Indiana Supreme Court has
explained our applicable standard of review in a sufficiency case as follows:
When reviewing the sufficiency of the evidence to support a
conviction, appellate courts must consider only the probative
evidence and reasonable inferences supporting the verdict. It is
the fact-finder’s role, not that of appellate courts, to assess
witness credibility and weigh the evidence to determine whether
it is sufficient to support a conviction. To preserve this structure,
when appellate courts are confronted with conflicting evidence,
they must consider it most favorably to the trial court’s ruling.
Appellate courts affirm the conviction unless no reasonable fact-
finder could find the elements of the crime proven beyond a
reasonable doubt. It is therefore not necessary that the evidence
overcome every reasonable hypothesis of innocence. The
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evidence is sufficient if an inference may reasonably be drawn
from it to support the verdict.
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks
and citations omitted) (emphasis in original). “A conviction can be sustained
on only the uncorroborated testimony of a single witness[.]” Bailey v. State, 979
N.E.2d 133, 135 (Ind. 2012).
[15] At the time of Spicer’s offense in February 2014, INDIANA CODE § 35-41-5-2
(2014) provided that a “person conspires to commit a felony when, with intent
to commit the felony, he agrees with another person to commit the felony” and
that the State “must allege and prove that either the person or the person with
whom he agreed performed an overt act in furtherance of the agreement.”
Additionally, INDIANA CODE § 35-48-4-1.1(a)(1) (2014) provided that a person
who knowingly or intentionally: (A) manufactures; (B) finances the
manufacture of; (C) delivers; or (D) finances the delivery of methamphetamine
commits dealing in methamphetamine as a Class B felony.10 This offense,
however, was enhanced to a Class A felony when the amount of drug involved
weighed three grams or more. I.C. § 35-48-4-1.1(b)(1) (2014). Thus, to convict
Spicer as charged, the State was required to prove beyond a reasonable doubt
that Spicer, with the intent to commit the felony of dealing in
10
At the time of Spicer’s offense, “manufacture” was defined, in relevant part, as “the production,
preparation, propagation, compounding, conversion, or processing of a controlled substance . . .” or “the
organizing or supervising of” the production, preparation, propagation, compounding, conversion, or
processing of a controlled substance. I.C. § 35-48-1-18 (2014).
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methamphetamine in an amount of three grams or more, agreed with Ellis
and/or Newton to commit the crime and that Spicer or Ellis performed an overt
act in furtherance of that agreement, specifically that Spicer or Ellis obtained
pseudoephedrine for the manufacture of methamphetamine.
[16] Spicer does not challenge the amount of the drug at issue nor the overt act
element. Indeed, Spicer concedes that he and Ellis each obtained
pseudoephedrine and that they took four boxes of it to Newton, and he does not
challenge that one box of pseudoephedrine would result in the manufacture of
two grams of methamphetamine.
[17] Instead, Spicer suggests that he did not intend to commit or agree to commit the
felony of dealing in methamphetamine based on manufacturing. Spicer
suggests that, in order to find him guilty of the charged offense, the State was
required to provide specific evidence showing that he or Ellis had personal
knowledge of, or an active role in, the methamphetamine manufacturing
process. Spicer does not dispute that he and Ellis agreed to obtain the
pseudoephedrine, and he acknowledges that he and Ellis were “certainly in
possession of methamphetamine[.]” (Spicer’s Br. 10). He, however, asserts
that there was no specific evidence regarding an agreement to actually
manufacture methamphetamine because the State did not provide any evidence
to show that he had “obtain[ed] all of the ingredients and equipment necessary,
set-up either a mobile lab or a stand-alone laboratory, or [had] knowledge of the
process of manufacturing methamphetamine.” (Spicer’s Br. 13).
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[18] It is not necessary for the State to present direct evidence of a formal express
agreement. Erkins v. State, 13 N.E.3d 400, 407 (Ind. 2014), reh’g denied, cert.
denied. Indeed, “[t]he agreement as well as the requisite guilty knowledge and
intent may be inferred from circumstantial evidence alone, including overt acts
of the parties in pursuance of the criminal act.” Id.
[19] Here, the State presented evidence that Newton had been manufacturing
methamphetamine on a property in Ohio, and it presented specific evidence,
including testimony and photographs, regarding the manufacturing process and
manufacturing ingredients that were found at the property during the execution
of a search warrant for that property. The State also presented evidence that
Ellis and Spicer’s brother, Sam, had long been involved in a scheme of
obtaining pseudoephedrine and taking it to Newton, who then used that
pseudoephedrine to manufacture methamphetamine. For each 96-count box of
pseudoephedrine that Ellis and Sam took to Newton, he could make two grams
of methamphetamine, of which one gram would go to Newton and the other
gram was then split between Ellis and Sam. Ellis testified that when Sam was
in jail in Ohio, Spicer went to Ohio to pick her up and was with her when she
got some methamphetamine from Newton. She testified that upon returning to
Indiana, she and Spicer discussed getting more boxes of pseudoephedrine to
take to Newton so he could manufacture some methamphetamine. The State
introduced a copy of Ellis’s text message, in which she told Newton that Spicer
wanted to know if Newton would “do the same for him as [he] d[id] [for]
[S]ammy[.]” (State’s Ex. 21). Additional text messages reveal that Newton
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agreed to do so and told Ellis that she and Spicer could bring him the boxes of
pseudoephedrine. Moreover, the State presented evidence that Spicer and Ellis
collectively obtained four 96-count boxes of pseudoephedrine and took them to
Newton in Ohio, and Ellis testified that she and Spicer were going to go back to
Ohio to get their four grams of methamphetamine after Newton used the
pseudoephedrine to make the methamphetamine.
[20] Based on the evidence presented during the jury trial, we find that there is
sufficient evidence from which the jury could have found that Spicer entered
into an agreement with Ellis and/or Newton to manufacture methamphetamine
by providing the pseudoephedrine necessary to complete that manufacturing
process. Spicer’s argument is nothing more than a request to reweigh the
evidence and witness credibility. We, however, will not reweigh the evidence
or the finder of fact’s credibility determination. See Drane, 867 N.E.2d at 146.
Because there was probative evidence from which the jury could have found
Spicer guilty beyond a reasonable doubt of Class A felony conspiracy to
commit dealing in methamphetamine, we affirm his conviction.
2. Inappropriate Sentence
[21] Spicer argues that his forty-year sentence was inappropriate when considering
his “minor role in the overall methamphetamine operation, his character, and
the sentences of Ellis and Newton[,]” and he generally requests that he be
“resentenced.” (Spicer’s Br. 7, 17).
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[22] We may revise a sentence if it is inappropriate in light of the nature of the
offense and the character of the offender. Ind. Appellate Rule 7(B). The
defendant has the burden of persuading us that his sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a
Rule 7(B) review “should be to attempt to leaven the outliers, and identify some
guiding principles for trial courts and those charged with improvement of the
sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “Appellate Rule 7(B)
analysis is not to determine whether another sentence is more appropriate but
rather whether the sentence imposed is inappropriate.” Conley v. State, 972
N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted),
reh’g denied.
[23] When determining whether a sentence is inappropriate, we acknowledge that
the advisory sentence “is the starting point the Legislature has selected as an
appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.
Here, the jury convicted Spicer of Class A felony conspiracy to commit dealing
in methamphetamine. A Class A felony has a range of twenty (20) to fifty (50)
years with an advisory sentence of thirty (30) years. I.C. § 35-50-2-4. The trial
court imposed a term of forty (40) years for Spicer’s Class A felony conviction.
[24] The nature of Spicer’s offense involved him entering into an agreement that was
to ultimately lead to the manufacturing of methamphetamine. While Spicer
was not the person who made the methamphetamine, he did supply a necessary
ingredient in the manufacturing process. Even though he was prohibited by law
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from purchasing pseudoephedrine because of his prior methamphetamine
conviction, he nevertheless obtained three boxes of pseudoephedrine and then
crossed state lines to deliver that pseudoephedrine to Newton so that he could
manufacture the methamphetamine. Indeed, Spicer acknowledges that his
“objective was to obtain methamphetamine[.]” (Spicer’s Br. 15). He, however,
contends that the nature of his offense did not justify an enhanced sentence,
arguing that his involvement was “quite insignificant.” (Spicer’s Br. 15).
[25] In support of this argument, Spicer attempts to liken his case to Norris v. State,
27 N.E.3d 333 (Ind. Ct. App. 2015). In that case, Norris pled guilty to Class B
felony dealing in a controlled substance after he sold ten hydrocodone pills to a
confidential informant for $60.00, and the trial court sentenced him to twenty
(20) years, the maximum for a Class B felony. Norris, 27 N.E.3d at 334-35. On
appeal, this Court reduced Norris’s sentence under Appellate Rule 7(B). Id. at
336. We noted that Norris had four convictions for possession of marijuana
and was on probation when he committed the offense, but we determined that
the nature of his offense—which we described as “relatively innocuous” given
the “small amount of drugs”—did not support the maximum sentence. Id.
[26] Here, unlike Norris, Spicer was not sentenced to the maximum possible number
of years allowed for his conviction. Nor did Spicer plead guilty to his offense.
Additionally, Spicer committed this crime when he was on probation for the
very same crime committed here. Therefore, we decline to reduce Spicer’s
sentence based on the nature of his offense.
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[27] Turning to Spicer’s character, we note that Spicer has a criminal history, which
most notably includes a conviction for conspiracy to commit dealing in
methamphetamine as a Class B felony. He also has four unrelated
misdemeanor convictions.11 Furthermore, Spicer was on probation for his prior
methamphetamine conviction at the time he committed the Class A felony
offense being appealed. Additionally, Spicer had already violated that
probation in 2008, and the trial court had ordered him to serve ninety days and
then continued him on probation. Despite this additional opportunity at
probation given to Spicer by the trial court, Spicer went out and got involved in
methamphetamine-related activities again. As the trial court noted, Spicer “was
given a relatively lenient sentence for this prior [methamphetamine] offense and
failed to take advantage of that opportunity.” (Tr. 326). We find that his prior
criminal history, especially his prior conviction involving methamphetamine,
and violation of probation reflect poorly on his character and reveal his
unwillingness to follow the law.
[28] We acknowledge Spicer’s assertion that he “suffers from significant health
issues.” (Spicer’s Br. 16). However, the trial court recognized his health as a
mitigating circumstance and determined that it was not significant given his
continued involvement with illegal drugs. Indeed, the trial court stated that
Spicer “was given an opportunity to change after his last involvement with
11
These misdemeanor convictions include resisting law enforcement (1994), visiting a common nuisance
(1995), reckless driving (2004), and operating a vehicle while intoxicated (2009).
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illegal drugs for the sake of his health” but that his decision to “continu[e] this
activity while on probation for dealing show[ed] his lack of concern for his
health and his family.” (Tr. 327). Spicer has not shown that his sentence was
inappropriate given his character.
[29] We also reject Spicer’s argument that his sentence is inappropriate when
compared to the sentences imposed on Ellis and Newton. Ellis pled guilty to an
amended count of Class B felony conspiracy to commit dealing in
methamphetamine and was sentenced to twenty years, with ten years executed
and ten years suspended to probation. Newton pled guilty to Class A felony
conspiracy to commit dealing in methamphetamine in exchange for the State’s
recommendation for a thirty-year sentence, with fifteen years executed and
fifteen years suspended to probation. However, unlike Ellis and Newton,
Spicer did not plead guilty and decided to proceed to trial where a jury found
him guilty of the Class A felony offense.12 Furthermore, Ellis was sentenced for
a Class B felony, not a Class A felony.
[30] Moreover, we have explained that when analyzing inappropriate sentencing
claims, we should “concentrate less on comparing the facts of [the case at issue]
to others, whether real or hypothetical, and more on focusing on the nature,
extent, and depravity of the offense for which the defendant is being sentenced,
12
Spicer did not receive a lengthier sentence because he exercised his Constitutional right to a jury trial. The
difference is that his co-defendants accepted the State’s offer of a shorter sentence as an inducement to get
them to plead guilty. Spicer chose to accept the risk that the trial court, upon his conviction, might impose a
sentence within the full range allowed, 20 to 50 years.
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and what it reveals about the defendant’s character.” Guzman v. State, 985
N.E.2d 1125, 1134 (Ind. Ct. App. 2013) (internal quotation marks and citations
omitted). Here, Spicer was a willing participant in a methamphetamine
manufacturing operation, which was made more egregious by the fact that he
was on probation for a prior methamphetamine-related conviction at the time
he committed the offense.
[31] Spicer has not persuaded us that his forty-year sentence for his Class A felony
conspiracy to commit dealing in methamphetamine conviction is inappropriate.
Therefore, we affirm the trial court’s sentence.
[32] Affirmed.
Bradford, J., and Altice, J., concur.
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