Le Gia Hoang v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 18 2017, 9:19 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
and Tax Court
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
Matthew J. McGovern Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Justin F. Roebel
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Le Gia Hoang, April 18, 2017
Appellant-Defendant, Court of Appeals Case No.
22A01-1610-CR-2329
v. Appeal from the Floyd Superior
Court
State of Indiana, The Honorable Maria D. Granger,
Appellee-Plaintiff Judge
Trial Court Cause No.
22D03-1409-F5-1711
Altice, Judge.
Case Summary
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[1] Le Gia Hoang appeals following his convictions for Level 5 felony dealing in
marijuana and Level 6 felony maintaining a common nuisance. He raises a
number of issues on appeal, which we restate as follows:
1. Did the trial court abuse its discretion by instructing the jury
on accomplice liability?
2. Did the State present sufficient evidence to support Hoang’s
dealing conviction?
3. Did the trial court abuse its sentencing discretion by
considering Hoang’s age to be an aggravating circumstance?
4. Is Hoang’s sentence inappropriate in light of the nature of the
offenses and his character?
[2] We affirm.
Facts & Procedural History
[3] On September 26, 2014, law enforcement went to Holland Freight Company in
Jeffersonville to investigate a tip they had received regarding a suspicious
package bound for an address in Louisville. A police canine alerted the officers
to the presence of drugs in the package in question. Officers from three separate
law enforcement agencies then set up surveillance at the freight facility. They
watched as an individual later identified at Lucky Siharath arrived in a white
Chevrolet pickup truck and retrieved the package. Officers followed the truck
as it left the freight facility and travelled to a residence in New Albany.
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[4] At the residence, the truck backed into an open garage. Two officers then
approached Siharath, showed their badges, and identified themselves as police
officers. At that time, Hoang entered the garage through an interior door
leading into the residence. One of the officers asked Hoang if he could speak to
him, but Hoang quickly went back into the house. Officers attempted to regain
contact with Hoang by knocking on the door and windows, but he did not
come back outside until about ten or fifteen minutes later. Hoang told the
officers that he rented the house and agreed to allow them to check inside.
When officers entered the residence to perform a protective sweep, they
encountered a very strong odor of marijuana and observed a number of items
associated with marijuana processing located in plain view. Officers then
obtained a search warrant for the house and for the package retrieved from the
freight facility.
[5] In the freight package, police found several vacuum-sealed bags containing a
total of over twenty pounds of marijuana hidden among various restaurant
supplies. Inside the residence, police discovered what one officer described as
“a marijuana operation.” Transcript Vol. 2 at 172. In the only bedroom, police
found a vacuum sealer, a handgun, a drug ledger, and clothing consistent with
Hoang’s size, but not Siharath’s. They also found a suitcase with $27,400 in
cash hidden inside the lining. In a bathroom, police found another vacuum
sealer, a digital scale, a jar containing marijuana, two small bags of marijuana,
and a shoebox containing a small amount of marijuana and drug paraphernalia.
Also in the house, the police found fifteen to twenty large plastic buckets that
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are commonly used to ship marijuana, vacuum-sealed bags that had been cut
open and emptied, and a large plastic bin or cooler with a small amount of
marijuana in the bottom. Officers also located a cashier’s check for $7,200
bearing Hoang’s name as the purchaser, as well as title certificate for the pickup
truck Siharath had been driving, which listed Hoang as the owner of the
vehicle. In the garage, police found a vacuum-sealed bag containing $12,000 in
cash and empty boxes identical to the ones in the freight that Siharath had
picked up that day. Additionally, when Hoang was booked into jail later that
day, jail officers found a number of money orders in Hoang’s pocket or wallet
and hidden in his shoe.
[6] As a result of these events, the State charged Hoang with Level 5 felony dealing
in marijuana and Level 6 felony maintaining a common nuisance. Following a
jury trial, Hoang was found guilty as charged. On September 12, 2016, the trial
court sentenced Hoang to serve an aggregate four-and-a-half-year executed
term. Hoang now appeals.
Discussion & Decision
1. Jury Instruction
[7] Hoang first argues that the trial court abused its discretion when it instructed
the jury on accomplice liability. “Instructing a jury is left to the sound
discretion of the trial court, and we review its decision only for an abuse of
discretion.” Patterson v. State, 11 N.E.3d 1036, 1040 (Ind. Ct. App. 2014). “In
reviewing a trial court's decision to give a tendered jury instruction, we consider
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(1) whether the instruction correctly states the law, (2) is supported by the
evidence in the record, and (3) is not covered in substance by other
instructions.” Munford v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010).
[8] Hoang argues that the trial court abused its discretion in instructing the jury on
accomplice liability because there was no evidence in the record to support such
an instruction. The accomplice liability statute provides that “[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. Thus, there is no
distinction under Indiana law between the responsibility of a principal and an
accomplice. Wise v. State, 719 N.E.2d 1192, 1198 (Ind. 1999). Factors
considered by the fact-finder to determine whether a defendant aided another in
the commission of a crime include: “(1) presence at the scene of the crime; (2)
companionship with another engaged in criminal activity; (3) failure to oppose
the crime; and (4) a defendant’s conduct before, during, and after the
occurrence of the crime.” Smith v. State, 809 N.E.2d 938, 944 (Ind. Ct. App.
2004), trans. denied. Although a defendant’s mere presence or lack of opposition
to a crime is insufficient standing alone to establish accomplice liability, they
may be considered along with the other factors to determine participation. Id.
“If there is some evidence that a second party was involved in the crime, an
instruction on accomplice liability is proper.” Wise, 719 N.E.2d at 1198.
[9] Hoang’s argument essentially asks us to view each piece of evidence in
isolation, which we will not do. When taken together, the evidence in this case
was more than sufficient to support an instruction on accomplice liability.
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Siharith used a pickup truck belonging to Hoang to pick up a package
containing over twenty pounds of vacuum-sealed marijuana. Siharath then
delivered the package to a residence that Hoang admitted he was renting.
When Siharath arrived with the package, the garage door was open and Hoang
came outside to meet him. When officers approached him, Hoang quickly
went back inside and did not come out for ten to fifteen minutes, even though
officers were knocking on the doors and windows. The inside of the residence
smelled strongly of marijuana and was littered with items associated with
dealing in marijuana, including two vacuum sealers, a drug ledger, a digital
scale, numerous plastic buckets that are commonly used to ship marijuana,
vacuum-sealed bags that had been cut open and emptied, a large plastic bin or
cooler with a small amount of marijuana in the bottom, and a handgun. Police
also found almost $40,000 in cash, $12,000 of which was in a vacuum-sealed
bag, which officers testified is typically done by drug traffickers in an attempt to
mask the scent of the currency. Police also found drug paraphernalia, two
small bags of marijuana, a jar of marijuana, and documents bearing Hoang’s
name, including a cashier’s check for $7,200. Furthermore, when Hoang was
booked into jail, he had a number of money orders hidden on his person. This
evidence permits a reasonable inference that Hoang was Siharath’s accomplice
in carrying out a marijuana dealing operation at the residence. Accordingly, an
instruction on accomplice liability was clearly warranted.
2. Sufficiency of the Evidence
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[10] Hoang also argues that the State presented insufficient evidence to support his
conviction for dealing in marijuana. In reviewing a challenge to the sufficiency
of the evidence, we neither reweigh the evidence nor judge the credibility of
witnesses. Atteberry v. State, 911 N.E.2d 601, 609 (Ind. Ct. App. 2009). Instead,
we consider only the evidence supporting the conviction and the reasonable
inferences flowing therefrom. Id. If there is substantial evidence of probative
value from which a reasonable trier of fact could have drawn the conclusion
that the defendant was guilty of the crime charged beyond a reasonable doubt,
the judgment will not be disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137
(Ind. Ct. App. 2008). It is not necessary that the evidence overcome every
reasonable hypothesis of innocence; rather, the evidence is sufficient if an
inference may reasonably be drawn from it to support the conviction. Drane v.
State, 867 N.E.2d 144, 147 (Ind. 2007).
[11] In order to support Hoang’s dealing conviction, the State was required to prove
that Hoang—as either a principal or an accomplice—knowingly or intentionally
possessed at least ten pounds of marijuana with intent to deliver. See Ind. Code
§ 35-48-4-10. Hoang’s arguments on appeal are nothing more than requests to
reweigh the evidence, which we will not do. The evidence summarized above
is more than sufficient to support Hoang’s conviction for dealing in marijuana
as either a principal or an accomplice.
3. Age as a Sentencing Aggravator
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[12] Next, Hoang argues that the trial court abused its discretion by considering his
age to be an aggravating factor. Sentencing decisions rest within the sound
discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),
clarified on reh’g, 875 N.E.2d 218. So long as the sentence is within the statutory
range, it is subject to review only for an abuse of discretion. Id. A trial court
may abuse its sentencing discretion in a number of ways, including entering a
sentencing statement that includes aggravating factors that are improper as a
matter of law. Id. at 490-91. Even if the trial court is found to have abused its
discretion in sentencing the defendant, “the sentence will be upheld if it is
appropriate in accordance with Indiana Appellate Rule 7(B).” Felder v. State,
870 N.E.2d 554, 558 (Ind. Ct. App. 2007) (citing Windhorst v. State, 868 N.E.2d
504, 507 (Ind. 2007)).
[13] Hoang was sixty-seven years old at the time of sentencing. The trial court
mentioned Hoang’s age in both its written and oral sentencing statements. In
its oral sentencing statement, the trial court stated that Hoang’s age indicated
that “there’s not a lot of forming left for [him] to do.” Transcript Vol. 3 at 228.
In its written sentencing order, the trial court indicated that it found Hoang’s
likelihood of reoffending, based upon the fact that previous contacts with law
enforcement for similar conduct have not deterred his criminal involvement, to
be an aggravating circumstance. The court found no mitigating circumstances
and reasoned that Hoang’s “active and continued involvement in the illicit
marijuana trade has occurred in his mature years as an adult, and as the
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aggravating circumstances outweigh the mitigating circumstances, this Court
shall impose an aggravated sentence.” Appellant’s Appendix Vol. 2 at 196.
[14] Even if we assume that it would have been improper for the trial court to
consider Hoang’s age to be an aggravating factor, the trial court’s references to
Hoang’s age do not indicate that it did so. Rather, they indicate that the trial
court found that Hoang’s actions could not be chalked up to immaturity; in
other words, his age was not a mitigating factor. We therefore cannot conclude
that the trial court abused its discretion by considering an improper aggravating
circumstance. In any event, even if the trial court had abused its discretion in
this or another way, remand for resentencing would not be warranted because,
as we explain below, Hoang’s sentence is not inappropriate.
4. Inappropriate Sentence
[15] Hoang also argues that his four-and-a-half-year executed sentence is
inappropriate in light of the nature of the offense and his character. Article 7,
section 4 of the Indiana Constitution grants our Supreme Court the power to
review and revise criminal sentences. See Knapp v. State, 9 N.E.3d 1274, 1292
(Ind. 2014), cert. denied, 135 S. Ct. 978 (2015). Pursuant to Ind. Appellate Rule
7, the Supreme Court authorized this court to perform the same task. Cardwell
v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Per App. R. 7(B), we may 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.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014)
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(quoting App. R. 7). “Sentencing review under Appellate Rule 7(B) is very
deferential to the trial court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012).
Hoang bears the burden on appeal of persuading us that his sentence is
inappropriate. See id.
[16] The determination of whether we regard a sentence as inappropriate “turns on
our sense of the culpability of the defendant, the severity of the crime, the
damage done to others, and myriad other factors that come to light in a given
case.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell, 895
N.E.2d at 1224). Moreover, “[t]he principal role of such review is to attempt to
leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). It is
not our goal in this endeavor to achieve the perceived “correct” sentence in
each case. Knapp, 9 N.E.3d at 1292. Accordingly, “the question under
Appellate Rule 7(B) is not whether another sentence is more appropriate; rather,
the question is whether the sentence imposed is inappropriate.” King v. State,
894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in original).
[17] In order to assess the appropriateness of a sentence, we first look to the
statutory range established for the classification of the relevant offenses. Hoang
was convicted of Level 5 felony dealing in marijuana and Level 6 felony
maintaining a common nuisance. The sentencing range for a Level 5 felony is
one to six years, with an advisory sentence of three years. I.C. § 35-50-2-6. The
sentencing range for a Level 6 felony is six months to two and a half years, with
an advisory sentence of one year. I.C. § 35-50-2-7. Hoang was sentenced to
four and half years executed for his dealing conviction and one and half years
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executed for maintaining a common nuisance. The sentences were ordered to
be served concurrently, for an aggregate sentence of four and a half years
executed.
[18] Considering the nature of the offense, we note that the evidence presented at
trial supports a conclusion that Hoang was involved in an ongoing, large-scale
drug operation at the residence he rented. In addition to the over twenty
pounds of marijuana discovered in the package Siharath retrieved from the
freight company, the residence contained numerous items associated with
marijuana trafficking, including a drug ledger, a digital scale, two vacuum
sealers, vacuum-sealed bags that had been cut open and emptied, a large bin or
cooler with a small amount of marijuana in the bottom, numerous plastic
buckets commonly used to ship marijuana, a handgun, and nearly $40,000 in
cash. In short, the nature of the offense in this case supports the sentence
imposed.
[19] Considering the character of the offender, we note that this is not Hoang’s first
marijuana-related conviction. In 2006, Hoang was charged in California with
conspiracy to commit possession of marijuana for sale and ultimately convicted
of a felony possession charge. Additionally, evidence presented at sentencing
established that Hoang had twice had large amounts of cash seized by the
federal Drug Enforcement Agency at the Oakland International Airport after
disembarking flights from Louisville. Specifically, $186,920 was seized in in
March 2013 and $43,950 was seized in November 2015—well after the offenses
at issue in this case. This evidence supports an inference that Hoang has
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participated in a drug trafficking operation spanning multiple states and has not
been deterred despite repeated contacts with the criminal justice system.
Accordingly, we cannot conclude that his sentence of four and a half years
executed is inappropriate.
[20] Judgment affirmed.
[21] Riley, J. and Crone, J., concur.
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