Anthony G. Boyer v. State of Indiana (mem. dec.) ( 2016 )

FILED
MEMORANDUM DECISION Jul 08 2016, 8:46 am
CLERK
Pursuant to Ind. Appellate Rule 65(D), this Indiana Supreme Court
Court of Appeals
Memorandum Decision shall not be regarded as and Tax Court
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Gregory F. Zoeller
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anthony G. Boyer, July 8, 2016
Appellant-Defendant, Court of Appeals Case No.
39A01-1507-CR-1039
v. Appeal from the Jefferson Circuit
Court.
The Honorable Darrell M. Auxier,
State of Indiana, Judge.
Appellee-Plaintiff. Cause No. 39C01-1412-F5-1017
Barteau, Senior Judge
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Statement of the Case
[1] Anthony G. Boyer appeals from his convictions after a jury trial of Level 5
1
felony dealing in methamphetamine, and Level 5 felony attempted dealing in
2
methamphetamine. We affirm.
Issues
[2] Boyer presents the following restated issues for our review:
I. Whether there is sufficient evidence to support Boyer’s
convictions of dealing in methamphetamine and attempted
dealing in methamphetamine; and
II. Whether the trial court abused its discretion by instructing
the jury on the defense of abandonment at the State’s
request and over Boyer’s objection.
Facts and Procedural History
[3] In November of 2014, Justin Brooks and his girlfriend, Brittany Canfield, were
working as confidential informants for the Jefferson County Sheriff’s
Department in exchange for leniency regarding pending matters against each of
them. In particular, Brooks was facing a probation violation charge and
charges for driving while suspended and fleeing law enforcement. He faced
those charges while also serving probation for a 2004 conviction of dealing in
cocaine. Additionally, Brooks was in arrears with his child support obligation.
1
Ind. Code § 35-48-4-1.1 (2014).
2
Ind. Code § 35-48-4-1.1 (2014) (dealing); Ind. Code § 35-41-5-1 (2014) (attempt).
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Brooks had conducted approximately ten or twelve controlled buys using
money given to him for that purpose, while Brittany had conducted three or
four controlled buys.
[4] On November 12, 2014, via text and telephone, Brooks and Boyer discussed the
sale of methamphetamine. The two agreed that Boyer would sell a half gram of
methamphetamine to Brooks for sixty dollars. The two were to meet in front of
the Dollar General Store to complete the transaction. Brooks then notified
Jefferson County Sheriff’s Department Special Deputy Tim Armstrong and
Sheriff John Wallace about the arrangement. He met them and Detective
Tonya Colber at a designated location.
[5] Prior to the controlled buy, Deputy Armstrong strip-searched Brooks, fitted him
with a concealed wire, and gave him sixty dollars in buy money. Armstrong
took Brooks to the location, dropped him off at a spot across the parking lot,
and waited for approximately five to eight minutes for Boyer to arrive.
Armstrong’s vehicle was parked in the parking lot near a bank in order to avoid
detection, while Jefferson County Sheriff’s Department Captain Keith Hartman
and Detective Colber were monitoring the buy in a cover vehicle. Although
Brooks was wearing a wire, Armstrong did not have listening capability, and
the cover unit was not receiving intelligible audio.
[6] Boyer arrived in a black truck driven by a male Brooks did not know.
Armstrong watched the truck pull up and observed Brooks walk over to it.
Brooks, who could see Armstrong’s vehicle through the driver’s side window of
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the black truck, walked over to Boyer and dropped the money in Boyer’s lap.
He did so, instead of handing him the money, because there were so many
people nearby. Brooks grabbed the baggie out of Boyer’s hands and asked if the
drugs were potent. Boyer assured Brooks that they were. Boyer and the other
man were discussing a drug user named Kristy Brown, indicating that she had
caused them to be late and describing her as being “out of her mind.” Tr. pp.
37-38. The entire transaction was completed in approximately two minutes.
[7] After Boyer left in the truck, Brooks walked back into an alley and was picked
up by Armstrong approximately twenty feet from the back side of the Dollar
General building. Brooks got into the car and gave Armstrong a small, clear,
plastic baggie with a white, crystal-like substance in it. Armstrong drove back
to an undisclosed location, removed Brooks’ wire, strip searched him, and then
interviewed him. Brooks identified Boyer as the person who gave him the
crystal-like substance. That substance later tested positive as
methamphetamine.
[8] On December 1, 2014, Brooks contacted Boyer about buying a half-gram of
methamphetamine for sixty dollars. Boyer wanted Brooks to meet him in
Hanover. Brooks contacted Armstrong and Sheriff Wallace about the
transaction. Brooks was searched and fitted with a recording device prior to the
buy. Officers gave him three twenty-dollar bills, which had been previously
photocopied, for the purchase.
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[9] Based on text message exchanges, Brooks believed the purchase would occur at
a trailer court. However, Boyer changed the location for the buy to the Circle K
station. Brittany, who knew Boyer, accompanied Brooks on this controlled
buy, and was searched prior to the buy by jail matron Libby Hoffman.
Undercover police officer Kurtis Wallace drove the two to the Circle K in an
unmarked car. Armstrong, Sheriff Wallace, and Hoffman, followed in a cover
unit equipped with a listening device.
[10] Officer Wallace saw Boyer at the Circle K station when they arrived there and
parked the car near the gas pumps. Brooks and Brittany got out of the car and
walked over to Boyer. Although the officers could not see Brooks get out of the
vehicle from their location, they listened to the audio transmission from the
device Brooks was wearing. Armstrong recognized Brooks’ and Boyer’s voices
on the audio. The three went into the store, where they stayed for several
minutes before Brittany left the store and walked back to Officer Wallace’s car.
[11] Within a short time, Brooks and Boyer walked out the front door of the station
and proceeded around the side of the building to the back. Boyer told Brooks
that he had heard Brooks “might be police” and because of that Boyer was
going to be cautious. Tr. pp. 55, 57. Boyer told Brooks that he was going to
take the money for the methamphetamine, put the drugs in a cigarette pack,
and then call Brooks with the location of the cigarette pack. Officer Wallace
had lost sight of the two, but Brooks walked back to the car after giving the
money to Boyer. Officer Wallace did not see Boyer again at the Circle K
station.
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[12] Brooks received a text from Boyer indicating that they should just meet each
other at the laundromat. Officer Wallace repeated what Brooks told him about
going to the laundromat so the information that the investigation was ongoing
would be supplied to officers in the area.
[13] Meanwhile, Armstrong, by way of the listening device, had heard a voice say
“Sixty. Right?” Id. at 141. He then heard Boyer say, “I’m going to have to go
over here. I’ll meet you in five to ten minutes down by the laundromat.” Id. at
130. After they parked in front of the laundromat, Brooks waited
approximately five to eight minutes before Boyer arrived.
[14] Officer Wallace told Brooks to exit the vehicle when Boyer arrived, and that he
and Brittany would remain in the car. He also instructed Brooks to ensure that
the transaction was visible, but to return to the car if anything did not seem
right about the transaction. Boyer called Brooks to ask him where he was.
Brooks indicated that he was at the laundromat, got out of the vehicle, and met
Boyer at the corner. Boyer told Brooks “we need to take a ride.” Id. at 62.
Brooks and Boyer walked toward Officer Wallace’s car. Brooks entered the
front passenger side of the vehicle, while Boyer opened the back driver’s side
door and began to sit down. Wallace, however, was concerned that Boyer
recognized him as a police officer and feared for the safety of the confidential
informants. As Boyer began to sit in the back seat, Wallace opened the door,
identified himself as a police officer, pointed his gun at Boyer, and ordered him
to get out of the car and onto the ground. Additional officers arrived while
Boyer was on the ground.
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[15] Jefferson County Sheriff’s Department Deputy Troy Hawkins arrived at the
scene and handcuffed Boyer. Neither the buy money nor drugs were found on
Boyer. His cell phone was retrieved during the search. Text messages were
later extracted from Boyer’s cell phone. During the time leading up to and
during this controlled buy, Boyer was exchanging text messages with an
individual identified as J.R. He was describing to Boyer his observation from
his bedroom about the presence of a vehicle with “tinted out” windows. State’s
Ex. 15. During Deputy Hawkins’ search of Boyer, he also removed six knives
from different pockets of Boyer’s clothing, and removed a metal rod that Boyer
had duct-taped to his forearm.
[16] The State charged Boyer with dealing in methamphetamine, attempted dealing
in methamphetamine, and theft. The trial court granted the State’s motion to
dismiss the theft charge prior to trial and the matter proceeded to trial on the
remaining counts. The State tendered a pattern jury instruction on the defense
of abandonment, which was given over Boyer’s objection. The jury found
Boyer guilty on both counts. The trial court sentenced Boyer to five years on
each count to be served concurrently. Boyer now appeals.
Discussion and Decision
I. Incredible Dubiosity
[17] Boyer challenges the sufficiency of the evidence supporting his convictions
citing the incredible dubiosity rule. Upon review of a claim challenging the
sufficiency of the evidence, we neither reweigh the evidence nor conduct our
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own assessment of the credibility of the witnesses. Jackson v. State, 925 N.E.2d
369, 375 (Ind. 2010). We consider only the probative evidence and reasonable
inferences therefrom that support the conviction. Id. Conflicting evidence is
considered in a light most favorable to the trial court’s ruling. Id. We will
affirm if the probative evidence and reasonable inferences drawn therefrom
could have allowed a reasonable trier of fact to find the defendant guilty beyond
a reasonable doubt. Id.
[18] Under the incredible dubiosity rule, however, a court will impinge upon the
factfinder’s responsibility to judge the credibility of witnesses only when
confronted with inherently improbable testimony or coerced, equivocal, wholly
uncorroborated testimony of incredible dubiosity. Whatley v. State, 908 N.E.2d
276, 282 (Ind. Ct. App. 2009), trans. denied. Application of the rule is limited to
cases with very specific circumstances including that the challenged testimony
must be given by a sole testifying witness. Smith v. State, 34 N.E.3d 1211, 1221
(Ind. 2015).
[19] Here, Brooks was not the only witness offering testimony in support of Boyer’s
convictions. The November 12, 2014 transaction lasted just a few minutes.
Even though the audio equipment rendered no intelligible recording, Brooks’
testimony was corroborated by that of Armstrong. Brooks and Boyer agreed
that the transaction was to occur at the Dollar General. Deputy Armstrong
strip-searched Brooks, fitted him with a concealed wire, and gave him sixty
dollars in buy money to purchase a half gram of methamphetamine.
Armstrong saw the black truck in which Boyer was a passenger pull into the
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parking lot at the Dollar General, and Armstrong saw Brooks walk over to the
vehicle. After dropping the buy money in Boyer’s lap and grabbing the
methamphetamine from Boyer’s hand, Brooks met Armstrong and turned over
the baggie containing a substance that later tested positive for
methamphetamine.
[20] The evidence of Boyer’s crime was corroborated and not inherently improbable.
Further, the promise of leniency regarding Brooks’ pending charges in exchange
for Brooks’ cooperation does not render his testimony coerced. We have long
held that the uncorroborated testimony of an informant-buyer is sufficient to
sustain a conviction. Simmons v. State, 585 N.E.2d 1341, 1343 (Ind. Ct. App.
1992). Further, the fact that Brooks worked as a confidential informant, hoping
to receive some leniency with respect to certain charges against him, was
explained to the jury so that his credibility could be evaluated and the weight to
be assigned to his testimony could be assessed by them. The evidence is
therefore sufficient to support Boyer’s conviction for Level 5 felony dealing in
methamphetamine.
[21] The December 1, 2014 transaction between Brooks and Boyer similarly was for
a half gram of methamphetamine in exchange for sixty dollars. However,
because Boyer was suspicious that Brooks was working as a confidential
informant, the transaction was set up differently. Brooks was to meet Boyer at
the Circle K station. Officer Wallace testified that he watched Boyer meet
Brooks after arriving at the Circle K. Armstrong testified that he recognized
Brooks’ and Boyer’s voices on the audio feed and heard a voice saying, “Sixty.
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Right?” Tr. p. 141. Armstrong also heard Boyer indicate that he would have to
leave for approximately five to ten minutes and then meet at the laundromat.
The State also introduced the recording of Boyer instructing Brooks to sit at the
laundromat. Therefore, Brooks’ testimony was not uncorroborated, and was
not incredibly dubious.
[22] Boyer challenges Brooks’ testimony claiming that it was coerced. As discussed
above, the fact that Brooks hoped for leniency with respect to pending criminal
charges does not render his testimony coerced. Further, his incentive to
participate in controlled buys was revealed to the jury. Brooks’ testimony with
respect to this charge is not incredibly dubious. The evidence is sufficient to
support Boyer’s conviction of attempted dealing in methamphetamine.
II. Jury Instruction 3
[23] Boyer argues that the trial court abused its discretion by giving the instruction
on the defense of abandonment. We begin our analysis with a recitation of our
well-known and often cited standard of review. Our trial courts enjoy broad
discretion in the instruction of juries which we review for an abuse of that
discretion. McCowan v. State, 27 N.E.3d 760, 763 (Ind. 2015). Reviewing a trial
court’s decision to give or refuse a tendered instruction requires us to examine
whether (1) the instruction correctly states the law, (2) there is evidence in the
3
Indiana Appellate Rule 46(A)(8)(e) provides that when “error is predicated on the giving or refusing of any
instruction, the instruction shall be set out verbatim in the argument section of the brief with the verbatim
objections, if any, made thereto.”
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record to support giving the instruction, and (3) the substance of the tendered
instruction is covered by other instructions which were given. Bell v. State, 820
N.E.2d 1279, 1283 (Ind. Ct. App. 2005), trans. denied.
[24] Here, the question is whether the trial court properly exercised its discretion in
giving the abandonment instruction at the State’s request over Boyer’s
objection. Boyer argues that giving the instruction confused the jury about the
element of intent and deprived him of an all-or-nothing defense.
[25] When a defendant is charged with attempting to commit a crime, it is a defense
that the person who engaged in the prohibited conduct voluntarily abandoned
his effort to commit the underlying crime and voluntarily prevented its
commission. Ind. Code § 35-41-3-10 (1977). “[W]hether a defendant’s
abandonment of a criminal effort is voluntary is a question of fact for the jury to
decide.” Gravens v. State, 836 N.E.2d 490, 495 (Ind. Ct. App. 2005), trans.
denied. However, for an abandonment to be considered voluntary, it must in no
way be attributable to the influence of extrinsic circumstances. Barnes v. State,
269 Ind. 76, 82, 378 N.E.2d 839, 843 (1978). “In short, the attempt to commit
a crime must be freely and voluntarily abandoned before the crime is completed
and under such circumstances as would show that there were no outside causes
prompting the abandonment.” Id.
[26] Boyer agrees that the instruction is a correct statement of the law that is not
covered by other instructions. Instead, he argues that the instruction is not
supported by the evidence, noting that he did not advance that theory at trial.
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Assuming without deciding that the trial court erred by giving the instruction
on the basis that it was not supported by the evidence, instructional error is
harmless where a conviction is clearly sustained by the evidence and the
instruction would not likely have impacted the jury’s verdict. Townsend v. State,
934 N.E.2d 118, 127-28 (Ind. Ct. App. 2010). Such is the case here.
[27] The jury had before it evidence that Boyer and Brooks communicated about the
December 1, 2014 transaction by telephone and text messages. Armstrong was
able to identify Brooks’ and Boyer’s voices on the audio transmission. Brooks
confirmed that the half gram of methamphetamine cost sixty dollars. Boyer
told Brooks that this transaction would have to be conducted a little differently
because Boyer suspected Brooks was working as a confidential informant for
the police. Boyer took the buy money from Brooks and devised a plan for the
exchange of the drugs to be made by use of a cigarette carton, the location of
which Boyer would communicate to Brooks. Instead, at Boyer’s suggestion,
the two met at the laundromat where Boyer subsequently was taken into
custody. Text messages exchanged between Boyer and a person identified as
J.R. revealed that J.R. was watching a car with tinted windows near the
location of the buy. This is sufficient evidence to establish that Boyer attempted
to deal in methamphetamine. Assuming, arguendo, that there was instructional
error, such error does not require reversal.
Conclusion
[28] In light of the foregoing, we affirm Boyer’s convictions.
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[29] Affirmed.
Riley, J., and Crone, J., concur.
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