Court of Appeals of Indiana | Opinion 19A

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- 1925 | February 21, 2020 Page 1 of 24 A TTORNEY FOR A PPELLANT Bruce W. Graham Lafayette, Indiana A TTORNEYS FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

Jarmone Davis , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. February 21, 2020 Court of Appeals Case No. 19A

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- 1925 Appeal from the Tippecanoe Superior Court The Honorable Steven P. Meyer, Judge Trial Court Cause No. 79D02

- 1712

- F2

- 28

Riley , Judge.Court of Appeals of Indiana | Opinion 19A

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### STATEMENT OF THE CASE

[1] Appellant

- Defendant, Jermone Davis ( Davis ), appeals his conviction and

sentence for one Count of corrupt business influence, a Level 5 felony , Ind. Code § 35

- 45

- 6

- 2 (1) ; one Count of conspiracy to comm it dealing in a n arcotic drug of 10 grams or more , a Level 2 felony, I.C. § § 35

- 4 1

- 5

- 2;

- 48

- 4

- 1 ( e )(1); and one Count of conspiracy to commit d ealing in methamphetamine of at least 10
grams or more , a Level 2 fel ony, I.C. §§ 35

- 41

- 5

- 2 ; - 48

- 4

- 1.1( e )(1)

.

[2] We affirm in part, reverse in part, and remand with instructions.


### ISSUES

[3] Davis raises three issues on appeal, which we restate as the following :
(1) Whether the State presented sufficient evidence beyond a reasonable doubt to convict Davis of his conspiracy convictions for dealing in a narcotic drug and dealing in methamphetamine ;
(2) Whether Davis’ conspiracy convictions violated Indiana’s double jeopardy principles under the actual evidence test ; and
(3) Whether the trial court abused its discretion at sentencing.


### FACTS AND PROCEDURAL HISTORY

[4] On July 6, 2015, Lafayette Police Department Lieutenant Nicholas Amor ( Lieutenant Amor) set up a controlled buy of narcotic drugs with the assistance of an undercov er offic er, Sergeant Randy Sherer (Sergeant Sherer) , and anCourt of Appeals of Indiana | Opinion 19A

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- 1925 | February 21, 2020 Page 3 of 24 unwitting informant 1 , Harley VanHorn (VanHorn). After Sergeant Sherer picked up VanHorn, Lieutenant Amor followed the m both to an area near McCarty Lan e and Creasy Lane in Laf ayette. Sergeant Sherer provided VanHorn with $100 of marked money, and VanHorn exited the police vehicle and walked through a grassy field. Sergeant Sherer subsequently observed a

man , who was wearing red pants and a white shirt a nd later identified as Davis , approach and speak with VanHorn. Sergeant Sherer noticed VanHorn and Davis “ do a hand

- to

- hand exchange.” (Transcript Vol. II, p. 201). When VanHorn returned to Sergeant Sherer’s vehicle, he handed Sergeant Sherer a small baggie con taining a white substance , which was later established to be heroin. Later that day, Lieutenant Amor organized another controlled purchase of heroin

. Sergeant Sherer was to pick up another unwitting confidential informant, Aldo Garcia (Ga rcia) , and drive him to an apartment located at 3817 Sickle Court in Lafayette, which was approximately 100 meters from the location of the first controlled purchase

. After Garcia was provided with police buy money, Sergeant Sherer saw Davis and Garcia conduct a “hand

- to

- hand transaction.” ( Tr. Vol. II, p. 206). When Garcia returned to Sergeant Sherer’s car , h e submitted the heroin he had purchased from Davis

.

[5] On July 12, 2015, Lieutenant Amor organized another controlled purchase of heroin wit h the assistance of Sergeant Sherer and an other unwitting informa nt ,

1 Sergeant Sherer testified that an unwitting informant is also usually a suspect and who is not aware of his active role in the controlled buy. In this case, VanHorn was not aware that Sergeant Sherer was an undercover officer or that he was engaged in a controlled buy.Court of Appeals of Indiana | Opinion 19A

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- 1925 | February 21, 2020 Page 4 of 24 Eduardo Tapia (Tapia). Sergeant Sherer picked up Tapia and drove to an apartment located on 3817 Sickle Court. Shortly thereafter, a r ed Pontiac Grand Prix , which was being driven by Davis , pulled up into the driveway

. Sergeant Sherer provided Garcia with $100 of buy money . Both Garcia and Davis exited their respective vehicles, and after the two briefly talked , they went inside the apartment. Tapia returned to Sergeant Sherer’s car and handed over

a plastic bag containing a white substance , and it was later confirmed to be heroin.

[6] On July 27, 2015, Sergeant Sherer and Tapia conducted another controlled buy that Lieutenant Amor had arranged. After picking up Tapia, Sergeant Sherer d rove to the 3817 Sickle Court apartment b uilding

. Upon arriving , Tapia was provided with $150 to buy heroin from Davis

. Tapia went inside the apartment, and moments later , he returned to Sergeant Sherer’s vehicle. Tapia handed Sergeant Sherer a baggie containing a white substance , which was later confirmed to be heroin.

[7] Three days later, on July 30, 2015, Purdue University Police D epartment Detective John Goetz (Detective Goetz) was acting as a n undercover officer in a controlled buy of heroin orchestrated by Lieutenant Amor. The transaction involved Detective Goe tz meeting and driving VanHorn to an apartment at 3817 Sickle Court to purchase additional heroin from Davis. VanHorn was supplied with $200 of buy money. When Detective Goetz and VanHorn arrived at 3817 Sickle Court, Detective Goetz observed VanHorn greet Davis, and watched them go inside the apartment. VanHorn afterwards exited anCourt of Appeals of Indiana | Opinion 19A

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- 1925 | February 21, 2020 Page 5 of 24 apartment on 3817 Sickle Cour t and returned to Detective Goetz’s vehicle and provided a baggie containing a white substance that later tested positive for heroin

. As Detective Goetz drove away from the apartment , Lieutenant Timothy Payne (Lieutenant Payne) , who was in another vehicle , remained behind to conduct surveillance

. At separate times, three vehicles drove to the apartment, and left within minutes. Lieutenant Payne further observed the red Grand Prix reverse into the driveway and Davi s exit ing the vehicle and entering an apartment on 3817 Sickle Court

. Lieutenant Payne then observed Davis and a nother man , later identifie d as C o r darow Davis (Cordarow) , exit an apartment on 3817 Sickle Court get inside the red Grand Prix , and drive away.

[8] Later that day , the police initiated two traffic stops of the vehicles that had been seen leaving 3817 Sickle Court. First, th e police stopped a black Escalade, and during the search, the police found $201 in cash , a portion of which was from a prior controlled buy from Davis. The police also stopped the red Grand Prix

. The driver was Davis and the other occupant was Cordarow

. After Davis and Cordarow were detained, the police searched their person s
. The police seized $992 from Cordarow and $250 from Davis. Of the mo ney seized from Cordarow, $140.00 was from the buy money supplied by VanHorn earlier that day

.

[9] Later that day, the police returned to a partment A on 3817 Sickle Court to execute a search warrant. Over $ 7 ,000 in cash was recovered, and a portion of it was from the money issued from the controlled buys organized by Lieutenant Amor

. Also, the police found a black scale with white residue on it,Court of Appeals of Indiana | Opinion 19A

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- 1925 | February 21, 2020 Page 6 of 24 hydrocodone pills, 14.55 grams of heroin, and a bottle of “ Dormin, ” a sleep ing aid , which is used to make “profits larger by cutting [the heroin ] down ” while “still providing a quality product.” (Tr. Vol. III, p. 165). Base d on mail and other documentation , t he police determined that Cor darow and Davis were among the people residing in that apartment. The officers also found Indiana titles to a red Camaro and a red Pontiac Grand Prix as well as insurance records for those vehicles. The Camaro and the Grand Prix were titled and insured t o a man named Malcom Gore (Gore ). The following day, on July 31, 2015, Detective Goetz and Lieutenant Amor conducted a search of the red Camaro after Lieutenant Payne listened to a jail phone call between Davis and another person, where Davis stated that he had hidden money in the trunk of the Camaro that was parked in a storage facility. Following a search of the vehicle, the police seized $20,000 in cash

. 2

[10] In late 2016, the police received information from a confidential informant describing Davis and Co rdarow as the suppliers of methamphetamine in Lafayette

. The confidential informant indicated that the two were cousins. Between January 2017 and February 2017, the police utilized a confidential informant to buy methamphetamine fr om Davis. During one of the controlled buys, Cordarow was present.

2 The record shows that on August 5, 2015, the State charged Davis with Level 2 felony c onspiracy to commit dealing in a narcotic drug, Level 2 felony dealing in a narcotic drug, and Level 3 felony possession of a narcotic drug. However, t hose charges were later dismissed.Court of Appeals of Indiana | Opinion 19A

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- 1925 | February 21, 2020 Page 7 of 24 [11] O n March 8, 2017, the Drug Task Force organized a controlled buy of four ounces of methamphetamine worth $2,800 from Davis. Sergeant Bradley Curwick (Sergeant Curwick) was provided with ma rked money , and the controlled buy was to take place a t the B ay Pointe Apartment s in Lafayette. Sergeant Sherer , whose role was to conduct surveillance, drove to a neighboring apartment complex and parked his car. Sergeant Sherer observed Davis driv e a silver Pontiac Grand Prix and reverse into a parking spot

. Accompanied by an informant, Sergeant Curwick walked over to Davis’ silver Pontiac Grand Prix and got inside . Sergeant Curwick gave Davis $2,800 , and after Davis counted the money, he gav e Sergeant Curwick a bag containing drugs, which tested positive as 1 1 5.2 grams of methamphetamine.

[12] Sometime b etween March and April 2017 , Sergeant Curwick exchanged text messages with Davis about buying five ounces of methamphetamine for $4 ,000

. On April 25, 2017, Lieutenant Payne was to conduct a surveillance of that controlled purchase

. Lieutenant Payne observed the same silver Grand Prix being driven by Davis on March 8, 2017, pull up in front of the Bay Pointe Apartment s’ office . An empty

- ha nded Davis and another man exit ed the silver Pontiac Grand Prix and walk ed into the common area . L ieutenant Payne then
saw D avis exit the apartment office with a brown Burger King sack , and Davis and the other man g o t inside the silver Grand Prix and dr o ve away.

[13] Davis then called Sergeant Curwick , who was inside a partment 32 at the Bay Pointe Apartment s , to confirm his address. Sergeant Curwick opened the door , and Davis entered and placed the brown Burger King sack on top of the TVCourt of Appeals of Indiana | Opinion 19A

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- 1925 | February 21, 2020 Page 8 of 24 stand

. Sergeant Cur wick handed $ 4,000 to Davis, and after confirming the

amount , Davis pointed at the brown sack and exited the apartment. Forensic examination revealed that the bag contained 13 8. 79 grams of methamphetamine.

[14] On January 14, 2018, the police conducted a search of apartment number 112

at the Bay Pointe Apartment s
. Only one person, Gore, the man that owned the red Grand Prix which Davis had been seen driving in 2015 , was ins ide the apartment. The police discovered that Davis and Cordarow also resided in the same apartment. During the search, the officers found $11,07 5 in cash, two digital scales , a bag containing 493 grams of methamphetamine, and in side a black Lincoln parked outside the apartment that the police had seen Cordarow drive during previous drugs sales , there was a kilogram of methamphetamine underneath the spare wheel.

[15] On December 28, 2017, the State filed an Information, charging Davis with Level 5 felony corrupt business influence , Level 2 felony conspiracy to commit dealing in a narcotic drug , Level 2 felony dealing in a narcotic drug , Level 3 felony possession of a nar cotic drug , Level 2 felony conspiracy to commit dealing in methamphetamine , and three Counts of Level 2 felony dealing in methamphetamine . On May 7, 2018, the State filed an additional Information, charging Davis with Level 2 felony dealing in methamphetamine , Level 3 felony possession of methamphetamin e, and Level 6 felony maintaining a

common nuisance. On May 3, 2019, the trial court granted the State’s requ estCourt of Appeals of Indiana | Opinion 19A

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- 1925 | February 21, 2020 Page 9 of 24 to dismiss three Counts of Level 2 felony dealing in methamphetamine and one C ount of Level 2 felony dealing in a narcotic drug

.

[16] A four

- day jury trial began on May 14, 2019. At the close of the evidence, the jury found Davis guilty of Level 5 felony corrupt business influence, Level 2 felony conspiracy to commit dealing in a narcotic drug, Level 2 felony dealing in a narcotic drug, Level 3 felony possession of a narcotic drug, Level 2 felony conspiracy to commit dealing in methamphetamine, and two Counts of Level 2 felony dealing in methamphetamine. The jury , however, determined that Davis was not guilty of one Count of Level 2 f elony dealing in methamphetamine, one Count of Level 3 felony p ossession of methamphetamine, and one Count of Level 6 felony maintaining a common nuisance.

[17] On July 26, 2019, the trial court conducted a sentencing hearing

. Due to double jeopardy concerns, the trial court vacated the following convictions : Level 2 fel ony dealing in a narcotic drug, Level 3 felony possession of a narcotic drug , and two Counts of Level 2 felony dealing in methamphetamine. The trial court subsequently sentenced Davis to six years for the Level 5 felony corrupt business influence convicti on , eighteen years for the Level 2 felony conspiracy to commit dealing in a narcotic drug conviction , and eighteen years with six years suspended for the Level 2 felony conspiracy to commit dealing in methamphetamine conviction . The trial court ordered the sentences to run

cons ecutively . Davis’ executed sentence is thirty

- six years.

[18] Davis now appeals. Additional information will be provided as necessary.Court of Appeals of Indiana | Opinion 19A

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### DISCUSSION AND DECISION
I

. Sufficiency of the Evidence

[19] When reviewing a claim of insufficient evidence, it is well

- established that our court does not reweigh evidence or assess the credibility of witnesses. Walker v.
State , 998 N.E.2d 724, 726 (Ind. 2013) . Instead, we consider all the evidence, and any reasonable inferences that may be drawn therefrom, in a light most favorable to the verdict. Id

. We will uphold the conviction “‘if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defenda nt guilty beyond a reasonable doubt.’” Id

. (quoting Davis v. State , 813 N.E.2d 1176, 1178 (Ind. 2004) ).

[20] Indiana Code section 35

- 48

- 4

- 1(a)(2)(C) provides that a person who possesses with intent to deliver a narcotic drug, pure or adulterated, classified in Schedule I or II commits dealing in a narcotic drug, a Level 5 felony. However, the offense is a Level 2 felony if “the amount of the drug involved is at least ten (10) grams.” I.C. § 35

- 48

- 4

- 1(e)(1)

. To convict Davis of Level 2 felony dealing methamphetamine as charged, the State was required to prove beyond a reasonable doubt that he possessed methamphetamine in an amount of at least ten grams with intent to deliver it. I.C. § 35

- 48

- 4

- 1.1(e)(1).

[21] Davis does not challenge the sufficiency of the evidence with respect to any element of his underlying dealing felonies ; rather , he challenges the conspiracy element as to both offenses. Specifically, he argues that the State failed to proveCourt of Appeals of Indiana | Opinion 19A

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- 1925 | February 21, 2020 Page 11 of 24 beyond a reasonable doubt that “there was a separate agreement for delivery of methamphetamine, and yet another agreement for delivery of he roin.” (Appellant’s Br. p. 17).

[22] The offense of conspiracy is governed by Indiana Code section 35

- 41

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- 2 , which provides “[a] person conspires to commit a felony when, with intent to commit the felony, he agrees with another person to commit the felony.” “The [S] tate must allege and prove that either the person or the person with whom he agreed performed an overt act in furtherance of the agreement.” I.C. § 35

- 41

- 5

- 2 (b)

. “A conspiracy to commit a felony is a felony of the same level as the underlying f

elony.” I.C. § 35

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- 5

- 2 (a). The State is not required to prove the existence of a formal express agreement to establish a defendant agreed to deal in cocaine. Simmons v. State , 828 N.E.2d 449, 454 (Ind. Ct. App. 2005) . The requisite agreement can be i nferred from circumstantial evidence, including overt acts of the parties in furtherance of the criminal act. Wallace v. State , 722 N.E.2d 910, 913 (Ind. Ct. App. 2000)

.

[23] Here, the underlying felonies were dealing in heroin and dealing in methamphetamine

. Thus, to convict Davis of both conspiracies to deal in heroin and methamphetamine, the State needed to prove that Davis intended to commit the felonies, agreed with another person to commit the felonies, and that Davis , or the person with whom he agreed performed an overt act in furtherance of the agreement.Court of Appeals of Indiana | Opinion 19A

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- 1925 | February 21, 2020 Page 12 of 24 [24] For the Level 2 felony conspiracy to commit dealing in a narcotic drug, the State charged Davis as follows:
During the time period from on or about January 1, 2015 through September, 2017 in Tippec anoe County, State of Indiana, Cordarow [], [] Davis, and/or unknown other person(s) did, with the intent to commit dealing in a narcotic drug, agree to commit dealing in a narcotic drug, and one or more of the following overt acts were performed in furthe rance of said agreement, to wit: on one or more occasions Cordarow [], [] Davis, or other unknown person(s) obtained heroin; on one or more occasions Cordarow [], [] Davis, or other unknown person(s) possessed heroin with intent to deliver; on one or more occasions Cordarow [], [] Davis, or other unknown person(s) delivered heroin to other persons; on one or more occasions Cordarow [], [] Davis, or other unknown person(s) accepted payment for the heroin [] which they delivered; and on one or more occasions the amount of heroin involved was at least ten (10) grams.
(Appellant’s App. Vol. II, p. 27), See I.C.§§ 35

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- 2;

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- 1(e)(1). As for Davis’ Level 2 felony conspiracy to commit dealing in methamphetamine, the State alleged that
[d] uring the time per iod on or about January 1, 2015 through January 2018, in Tippecanoe County, State of Indiana, Cordarow [], [] Davis, [] Gore, and/or unknown other person(s) did, with the intent to commit dealing in methamphetamine, agree to commit dealing in methamphetami ne, and one or more of the following overt acts were performed in furtherance of said agreement, to wit: on one or more occasions Cordarow [], [] Davis, [] Gore, or other unknown person(s) obtained methamphetamine; on one or more occasions Cordarow [], [] Davis, [] Gore, or other unknown person(s) possessedCourt of Appeals of Indiana | Opinion 19A

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- 1925 | February 21, 2020 Page 13 of 24 methamphetamine with intent to deliver; on one or more occasions Cordarow [], [] Davis, [] Gore, or other unknown person(s) delivered methamphetamine to other persons; on one or more occasions Cordarow [], [] Davis, [] Gore, or other unknown person(s) accepted payment for the methamphetamine which they delivered; and on one or more occasions the amount of methamphetamine involved was at least ten (10) grams.
(Appellant’s App. Vol. II, p. 79), See I.C.§§ 35

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- 5

- 2;

- 48

- 4

- 1.1(e)(1).

[25] To support the conspiracy to deal in heroin charge, the State presented evidence from Lieutenant Amor, Sergeant Sherer, Detective Goetz, and other officers, regarding their involvement in the controlled buys of the heroin betwe en Davis and three unwitting confidential informants in 2015. The State presented evidence that shortly after one of the drug buys, the police initiated a traffic stop of a red Pontiac Grand Prix , which was owned by Gore but being driven by Davis and occupied by Cordarow. Upon a search of their person s , the police seized $992 from Cordarow and $250 from Davis. Of the money seized from Cordarow, $140.00 was from money supplied by VanHorn and Detective Goetz. Further, during the search of the Sickle Court aprtment , the police seized 14.55 grams of heroin, and they also determined that Cordarow and Davis were among the people living in that apartment. Also, the police discovered that Davis had hidden $20,000 in the trunk of a red Camaro registered to Gore. Looking at all the evidence, it appears in 2015, Davis , Cordarow, and Gore conspired to deal in heroin from an apartment located at Sickle Court , Cordarow possess ed a portion of the drug buy money when the police searched h is person following a traffic stop , Davis drove Gore’s redCourt of Appeals of Indiana | Opinion 19A

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- 1925 | February 21, 2020 Page 14 of 24 Pontiac Grand Prix during the drug sales, and Davis had hidden $20,000 in the trunk of a red Camaro registered to Gore. Thus, we conclude that the State presented sufficient evidence beyond a reasonable doubt to su stain Davis’ Level 2 felony conspiracy to commit dealing in a narcotic drug conviction

.

[26] As for the Level 2 felony conspiracy to commit dealing in methamphetamine conviction , the State’s c harging Information alleged the existence of an agreement between Davis, Cordarow, Gore, and another unknown person, to commit the crime of dealing in methamphetamine. The record shows that prior to the March 2017 methamphetamine sale, a confidential info rma n t had disclosed to the police that two cousins, Davis and Cordarow , were selling methamphetamine in Lafayette . Three controlled buys were conducted between January 2017 and February 2017. During those controlled buys, Davis , with the assistance of Co rdarow , sold some methamphetamine to a confidential informant. In March 2017, Davis delivered 113.41 grams of methamphetamine worth $2,800 to Sergeant Curwick. In April 2017, Davis first drove to the Bay Point e Apartments office to obtain the methamphetamine from an unknown individual . W hen he left the building, he had with him a brown Burger King sack. Shortly thereafter, Davis delivered to Sergeant Curwick 138.79 grams of methamphetamine, which was in the brown Burger King sa ck, and Sergeant Curwick handed $4,000 to Davis. During the search of apartment number 112 at the Bay Pointe Apartment s , the police discover ed that Gore leased the apartment, and that Davis, C o rdarow, and others resided in that apartment. Also, the polic e recovered two digital scales, $11,075 inCourt of Appeals of Indiana | Opinion 19A

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- 1925 | February 21, 2020 Page 15 of 24 cash, and an additional 493 grams of methamphetamine inside a cooler. Also, the black Lincoln parked outside the apartment, which the police had seen Cordarow drive during prior drug sales, h ad a kilogram of meth amphetamine hidden under the spare tire. Here, the evidence shows that Davis acted with other individuals and conspired to deal in methamphetamine . Thus, we conclude that the State presented sufficient evidence beyond a reasonable doubt to sustain Davis’ Level 2 felony conspiracy to commit dealing in methamphetamine conviction

.
II. Actual Evidence Test

[27] Next, Davis claims that his conspiracy convictions for dealing in a narcotic drug and dealing in methamphetamine , violated the actual evidence test und er the Indiana Constitution.

[28] The Indiana Constitution provides that “[n]o person shall be put in jeopardy twice for the same offense.” IND. CONST . art. 1, § 14

. “Indiana ’ s Double Jeopardy Clause

. . . prevent[s] the State from being able to proceed against a person twice for the same criminal transgression.” Hopkins v. State , 759 N.E.2d 633, 639 (Ind. 2001) (quoting Richardson v. State , 717 N.E.2d 32, 49 (Ind. 1999) ). The Indiana Supreme Court has he ld that “two or more offenses are the ‘same offense’ in violation of Article I, Section 14 of the Indiana Constitution , if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential element s of one challenged offense also establish the essential elements of another challenged offense.” Richardson ,Court of Appeals of Indiana | Opinion 19A

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- 1925 | February 21, 2020 Page 16 of 24 717 N.E.2d at 49

. An offense is the same as another under the actual evidence test when there is a reasonable possibility that the evidence used by the fact

finder to establish the essential elements of one offense may have been used to establish the essential elements of a second challenged offense. Id

. The Indiana Supreme Court clarified this test in Spivey v. State , 761 N.E.2d 831, 833 (Ind. 2002) , where the court held that the test is not whether the evidentiary facts used to establish one of the essential elements of one offense may also have been used to establish one of the essential elements of a second challenged offense; rather, the tes t is whether the evidentiary facts establishing the essential elements of one offense also establish all of the elements of a second offense. If the evidentiary facts establishing one offense establish only one or several, but not all, of the essential el ements of the second offense, there is no double jeopardy violation. Id

.

[29] The evidence from 2015 supporting the conspiracy to commit dealing in a narcotic drug was entirely different from the evidence from 2017 supporting the conspiracy to commit dealing i n methamphetamine. Specifically, i n 2015, officers conducted controlled purchases of heroin, Davis operated out of an apartment at Sickle Court , Davis’ co

- conspirator , C o rdarow , possessed a portion of the buy money, and Davis used Gore’s vehicles to transport and

store sale proceeds of the heroin. More importantly, during the search of

a partment number 112 at Sickle Court, the police did not recover methamphetamine.Court of Appeals of Indiana | Opinion 19A

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- 1925 | February 21, 2020 Page 17 of 24 [30] In 2017, Davis , Cordarow, and others were selling met hamphetamine. Davis, C o rdarow, Gore , and others, were residing at a different apartment in the Bay Pointe Apartment s , and Davis was driving a different vehicle, a silver Pontiac Grand Prix. Three controlled buys were conducted between January and Februar y 2017 between Davis, Cordarow , and a confidential informant. Other major controlled buys were conducted in March 2017, including one where Davis supplied Sergeant Curwick with 113.41 grams of methamphetamine worth $2,800. Another controlled drug buy occurred in April 2017, where Davis, with the assistance of others, obtained 138.79 grams of methamphetamine to sell to Sergeant Curwick. Also, during the search of apartment number 112 in Bay Pointe Apartment s , the police dis cover ed that Gore leased the new apartment, and that Davis, C o rdarow, and others resided in that apartment. Also, the police recovered two digital scales, $11,075 in cash, and an additional 493 grams of methamphetamine stored inside a cooler, and the blac k Lincoln parked outside the apartment, which Cordarow had been seen driving , had a kilogram of methamphetamine hidden in it

.

[31] T he actual

- evidence test is only violated if there is a reasonable possibility that the jury latched on to the same set of facts to support each conviction. Garrett v. State , 992 N.E.2d 710, 719 (Ind. 2013)

. Given the clear division in time, the change in physical location, the change in automobiles used, and the change in the drug being dealt, there is no reasonable possibility that the jury latched on to the same evidence to convict Davis of his conspiracy charges relating to the heroin and methamphetamine

. As a result, we reject Davis’ argument thatCourt of Appeals of Indiana | Opinion 19A

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- 1925 | February 21, 2020 Page 18 of 24 convicting him of the Level 2 felon y conspiracy to commit dealing in a narcotic drug, and Level 2 felony conspiracy to commit dealing in methamphetamine, violated double jeopardy principles under the actual evidence test

.


### III

. Consecutive Se ntenc es
[32] Sentencing decisions are matters left to the sound discretion of the trial c ourt. Anglemyer v. State , 868 N.E.2d 482, 490 , clarified on reh’g , 875 N.E.2d 218 (Ind. 2007) . On appeal, we review a trial court’s sentencing order only for an abuse of discretion. Id

. It is an abuse of discretion if the trial court’s “decision is ‘cl early 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 K.S. v. State , 849 N.E.2d 538, 544 (Ind. 2006) ). Our supreme court has determined that in matters of sentencing, a trial court may abuse its discretion by failing to enter a sentencing statement, entering a finding of aggravating and mitigating factors that are unsupported by the record, omitting rea sons that are clearly supported by the record and are advanced for consideration, or by including reasons that are improper as a matter of law. Id

. at 490

- 91 . If we find that the trial court has abused its discretion, we will remand for resentencing “‘if we cannot say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.’” Sandleben v. State , 22 N.E.3d 782, 796 (Ind. Ct. App. 2014) (quoting Anglemyer , 868 N.E.2d at 4 91), trans. denied

.Court of Appeals of Indiana | Opinion 19A

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- 1925 | February 21, 2020 Page 19 of 24 [33] Indiana Code section 35

- 50

- 2

- 4.5 provides that “A person who commits a Level 2 felony shall be imprisoned for a fixed term of between ten (10) and thirty (30) years, with the advisory sentence being seventeen and one

- half (17 1⁄2 ) year s.”

[34] In order to impose consecutive sentences, a trial court must find at least one aggravating circumstance. Sanquenetti v. State , 727 N.E.2d 437, 442 (Ind. 2000)

. Aggravating circumstances may include, but are not limited to, any of several statutorily enumerated factors. See I.C. § 35

- 38

- 1

- 7.1. A single aggravating circumstance may support the imposition of consecutive sentences. Lavoie v. State , 903 N.E.2d 135, 140 (Ind. Ct. App. 2009)

. Although a trial court is required to state its reasons for imposing consecutive sentences, it may rely on the same reasons to impose a maximum sentence and also impose consecutive

sentences. Id

.

[35] The trial court sentenced Dav is to consecutive sentences of eighteen years for each of his Level 2 felony conspiracy drug conviction, and an additional six years for his Level 5 felony corrupt business practices conviction . However, the trial court suspended six years of the Level 2 felony conspiracy to commit dealing in methamphetamine for an executed sentence of thirty

- six years.

[36] Davis ’ sole argument here, is that the trial court abused its sentencing discretion by impos ing consecutive sentences for his conspiracy drug convictions, and in support of his argument, he directs us to Beno v. State , 581 N.E.2d 922 (Ind.1991) , and Hendrickson v. State , 690 N.E.2d 765, 767

- 68 (Ind. Ct. App. 1998)

.Court of Appeals of Indiana | Opinion 19A

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- 1925 | February 21, 2020 Page 20 of 24 [37] In Beno , the police arranged f or a confidential informant to purchase cocaine from Beno at his residence on two different occasions. Beno , 581 N.E.2d at 923

. Beno was then convicted of two Counts of dealing in cocaine and one C ount of maintaining a common nuisance. Id . at 924

. During the sentencing hearing, Beno was sentenced to the maximum term of imprisonment on each of the three convictions with each term to be served consecutively, for a total of seventy

- four years imprisonment. Id

. After accepting transfer, our supreme

c ourt determined Beno’s sentence to be manifestly unreasonable. Specifically, it found that, although the trial court properly sentenced Beno to the maximum term on each Count, the trial court erroneously ordered the sentences to be served consecutively. Id

. In reaching its conclusion, the supreme court noted that, although a trial court has discretion to impose both maximum and consecutive sentences, where a defendant is enticed by the police to commit nearly identical crimes as a result of a police stin g operation, consecutive sentences are inappropriate. Id

.

[38] I n Hendrickson v. State , 690 N.E.2d 765, 767 (Ind. Ct. App. 1998) , the police conducted five controlled buys over a period of two months in which Hendric kson sold marijuana, methadone, and two dif ferent legend drugs. After the trial court imposed consecutive sentences, we revised the sentences to concurrent terms on appeal. Id

. In so doing, we explained, “the purpose of
Beno in prohibiting consecutive sentences when the police entice additional drug buys, applies whether or not different drugs are involved. Therefore, weCourt of Appeals of Indiana | Opinion 19A

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- 1925 | February 21, 2020 Page 21 of 24 conclude that the holding in Beno is applicable even if the defendant provides a different type of drug during additional buys.” Id

.

[39] Although not cited by Davis, we find Gregory v. State , 644 N.E.2d 543, 544 (Ind. 1994) instructive in our analysis. In Gregory , Gregory sold cocaine to an informant on four separate occasions during a ten

- day period. Id

. As the result of the government sting operation, Gregory was convicted of four Counts of selling cocaine to the same police informant. Id

. The trial court sentenced Gregory to the presu mptive term of thirty years on each Count and ordered each Count to be served consecutively. Id

. Our supreme court addressed whether the consecutive sentences were manifestly unreasonable and held that “[c]onsecutive sentences are not appropriate when th e State sponsors a series of virtually identical offenses.” Id

. Specifically, the c ourt held:

As in Beno , Gregory sold the same drug to the same informant on several occasions over a short period of time. Presumably, the police could have set up any num ber of additional transactions, each time adding an additional [C]ount against Gregory. While the police may find it necessary to conduct a series of buys, the trial court should be leery of sentencing a defendant to consecutive terms for each [C]ount. W e hold that on these facts, a sentence of 120 years was inappropriate.

Id . at 546

.

[40] What is more, in Williams v. State , 891 N.E.2d 621, 635 (Ind. Ct. App. 2008) , we held that the principle that “the State may not ‘pile on’ sentences by postponing prosecuti on in order to gather more evidence . . . applies equally toCourt of Appeals of Indiana | Opinion 19A

- CR

- 1925 | February 21, 2020 Page 22 of 24 convictions arising from evidence gathered as a direct result of the State

sponsored criminal activity.” And, more recently, our supreme court took the same approach in holding that consecutive sentences were inappropriate where controlled buys led to a search and additional drug

- related convictions. Eckelbarger v. State , 51 N.E.3d 169 , 170 (Ind. 2016)

.

[41] Distinguishing the facts of this case from Beno and its progeny , the State argues that the trial court in this case did not impose the maximum possible sentence on Davis’ Level 2 felony convictions as in Beno . Thus, the State argues that Davis’ reliance on that case is misplaced. The State’s argument ignores our hol ding in Gregory , where we found presumptive consecutive sentences to be inappropriate. Also, the State appears to argue that because there were two different drugs involved ( i.e. heroin and methamphetamine), the trial court was justified in imposing multi ple convictions. While the State’s second argument is premised on the fact that different drugs were involved, it fail s to so much as acknowledge our decision in Hendrickson in which we reversed consecutive drug convictions relating to the sale of differe nt drugs.

[42] Similar to the defendants in Beno , Hendrickson , and Gregory , Davis was enticed by the police to make drug sale s as part of a sting operation. While the drug buys happened over two years apart, which was not in close temporal proximity

as the f our days at issue in Beno , 581 N.E.2d at 923 , or the two

- month period in Hendrickson , 690 N.E.2d at 766 , or the ten days at issue i n Gregory , 644 N.E.2d at 544 , the clear import we gather from Gregory, Jones , and Williams, is that they require that the “sentences for each conviction arising from evidence seizedCourt of Appeals of Indiana | Opinion 19A

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- 1925 | February 21, 2020 Page 23 of 24 after the State began sponsoring the criminal activity to run concurrently.” Williams , 891 N.E.2d at 635

. Under these circumstances, we find that Davis’ consecutive sentences ar e not appropriate . See i d.

[43] “When we find an irregularity in the trial court ’ s sentencing decision, we may remand to the trial court for a clarification or a new sentencing determination, or affirm the sentence if the error is harmless, or impose a proper sentence.” Rios v. State , 930 N.E.2d 664 (Ind. Ct. App. 2010). In the instan t case, we elect

to impose a p roper sentence pursuant to the cases cite d , and order that Davis

serve concurrent eighteen

- year terms on the conspiracy to commit dealing in a narcotic drug and methamphetamine convictions with no sentence suspended

. All othe r aspects of his sentence , including the six

- year sentence f o r his Level 5 felony corrupt business influence conviction , are affirmed, and we remand to the trial court with instructions to enter a new sentencing order consistent with this opinion.


### CONCLU SION

[44] Based on the foregoing, we conclude that the State presented sufficient evidence beyond a reasonable doubt to sustain Davis’ conspiracy convictions and his conspiracy convictions did not violate doub le jeopardy principles under the actual evidence test. However, we reverse his consecutive sentences as to the Level 2 felon y conspiracy to commit dealing in heroin and methamphetamine convictions , finding them inappropriate , and remand to the trial court to issue a new sentencing order consistent with this opinion.Court of Appeals of Indiana | Opinion 19A

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- 1925 | February 21, 2020 Page 24 of 24 [45] Affirmed in part, reversed in part, and remanded with instructions.

[46] Baker, J. and Br own, J. concur