Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
Jan 31 2014, 10:39 am
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:
JUSTIN R. WALL GREGORY F. ZOELLER
Wall Legal Services Attorney General of Indiana
Huntington, Indiana
MICHALE GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
NATHAN ALLEN KLINE, )
)
Appellant-Defendant, )
)
vs. ) No. 35A02-1307-CR-573
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HUNTINGTON SUPERIOR COURT
The Honorable Jeffrey R. Heffelfinger, Judge
Cause No. 35D01-1212-FB-276
January 31, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Judge
Case Summary and Issues
Nathan Allen Kline appeals his convictions for dealing in methamphetamine as a
Class B felony and operating an illegal drug lab as a Class D felony.1 Kline raises four
issues on appeal: 1) whether he was denied the effective assistance of his trial counsel; 2)
whether his convictions violate double jeopardy; 3) whether there is sufficient evidence
to sustain his convictions; and 4) whether his sentence was inappropriate in light of his
character and the nature of his offense. Concluding that he was not denied the effective
assistance of his trial counsel, that there is sufficient evidence, and that his sentence is not
inappropriate, but that his convictions do violate double jeopardy, we reverse in part and
affirm in part.
Facts and Procedural History
In December 2012 police responded to a call regarding smoke and a chemical
smell coming from a residence. Responding Detective Shane Jones noticed smoke
coming from a window as well as a chemical smell that he associated with the
manufacture of methamphetamine. Detective Jones and Sergeant Donald Wall were
allowed into the home by the homeowner, James Leon Cox. Inside the home, police
noted several items associated with methamphetamine manufacturing and also found a
receipt from a local store for the purchase of batteries. Police reviewed the surveillance
tape at the store for the relevant time period and saw Kline and Cox enter the store and
purchase items known to be used in the manufacture of methamphetamine.
1
Count II is referred to as “illegal drug lab” but the statute under which Kline was charged is actually titled
“Possession of chemical reagents or precursors with intent to manufacture controlled substances.” Ind. Code § 35-
48-4-14.5
2
Police were tipped off by Tracie Willis, who, along with her boyfriend Shane
Hogan, was working with Cox and Kline to make methamphetamine. Hogan testified
that he and Willis agreed to provide some over-the-counter medicine needed for the
manufacture of methamphetamine in exchange for some of the finished product.
At some point while questioning Cox, police learned that Kline was supposed to
be bringing methamphetamine over to Cox that day. Police had Cox call Kline, and
police listened to the call. Detective Jones testified that Cox asked Kline about the drugs,
and Kline said that he had spilled what he was cooking and they would have to start over.
The State charged Kline with count I, dealing in methamphetamine as a Class B
felony; and count II, operating an illegal drug lab as a Class D felony. Kline was found
guilty of both counts following a jury trial. At sentencing, the State noted that it had not
distinguished the facts between count I and count II, and that it therefore believed a
sentence should not be entered for count II. The court agreed that it was “iffy” and the
counts were probably merged, and so while it would sentence on count II, it would run
the sentences concurrently. Transcript at 658. The court sentenced Kline to twenty years
on count I and one-and-one-half years on count II, to run concurrently. This appeal
followed. Additional facts will be supplied as necessary.
Discussion and Decision
I. Ineffective Assistance of Counsel
A. Standard of Review
We review claims of ineffective assistance of counsel under the two prong test set
forth in Strickland v. Washington, 466 U.S. 668 (1984). Bieghler v. State, 690 N.E.2d
188, 192 (Ind. 1997), cert. denied, 525 U.S. 1021 (1998). To prevail on a claim of
3
ineffective assistance of counsel, the petitioner must show that his counsel’s performance
was deficient and that the lack of reasonable representation prejudiced him. Randolph v.
State, 802 N.E.2d 1008, 1013 (Ind. Ct. App. 2004), trans. denied. To satisfy the first
prong, the petitioner must show that counsel’s performance was deficient in that
counsel’s representation fell below an objective standard of reasonableness and that
counsel committed errors so serious that petitioner did not have the “counsel” guaranteed
by the Sixth Amendment. Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). To show
prejudice, the petitioner must show a reasonable probability that, but for counsel’s errors,
the result of the proceeding would have been different. Id. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Pruitt v. State, 903
N.E.2d 899, 906 (Ind. 2009).
Under this standard, judicial scrutiny of counsel’s performance must be highly
deferential, and there is a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance. Bieghler, 690 N.E.2d at 193 (citing
Strickland, 466 U.S. at 689). Counsel is afforded considerable discretion in choosing
strategy and tactics and we will accord that decision deference. Randolph, 802 N.E.2d at
1013. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do
not necessarily render representation ineffective. Id.
Finally, we note that the two prongs of the Strickland test are separate and
independent inquiries. Therefore, if it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice, we may determine the prejudice prong first
without inquiring into whether counsel’s performance was adequate. Thacker v. State,
715 N.E.2d 1281, 1284 (Ind. Ct. App. 1999), trans. denied.
4
B. Kline’s Trial Counsel
Kline argues that he was denied the effective assistance of his trial counsel
because he asked his trial counsel to file a motion for a speedy trial and counsel never did
so. Kline was originally appointed Jeremy Nix as his attorney. A few months later,
Kline wrote to the judge on the case and asked that he be appointed a different lawyer
and also noted that Nix had not filed a motion for a speedy trial as Kline had wanted.
Ultimately, Kline was appointed a different attorney from the same firm, Jill Denman. At
the beginning of trial, Denman told the court that Kline wished to have a different
attorney because Denman and Nix were from the same firm, and Kline noted that he
wanted a speedy trial and that Nix had not filed the motion. In the end, Kline kept
Denman as his attorney and the case proceeded to trial that day.
There is nothing in the record indicating why Nix did not file a motion for a
speedy trial. Kline argues that because no reason was given and there is evidence that
Kline wanted the motion filed, the failure to file the motion constitutes deficient
performance. Kline cites to Broome v. State, 694 N.E.2d 280, 281 (Ind. 1998), in which
trial counsel did not file a motion for a speedy trial as the defendant wanted, and counsel
explained that he could not properly prepare for trial in the timeframe that would have
been set by such a motion. The reviewing court determined that the decision not to file
the motion was related to trial preparation and strategy and that the defendant had not
presented strong evidence to overcome the presumption that counsel rendered adequate
assistance. Kline argues that because no such preparation or strategy reason was given
here, Nix was deficient in failing to file the motion. We disagree. Kline presents no real
evidence to overcome the presumption that counsel’s conduct falls within the wide range
5
of reasonable professional assistance, nor has Kline shown that it was not a preparation or
strategy decision on Nix’s part. While the Broome court noted that “[t]here may exist
circumstances in which defense counsel’s refusal or neglect to file a speedy trial motion
specifically requested by a defendant could constitute deficient performance to support a
claim of ineffective assistance of counsel,” Kline has not presented us with evidence
showing that his counsel’s performance was deficient. Id.
Kline also argues that there is a reasonable probability that the result of the
proceedings would have been different had a motion for a speedy trial been filed, because
Cox did not mention the involvement of Willis and Hogan in the scheme until after Cox
received a plea agreement and police did not interview them until shortly before Kline’s
trial. From talking to Willis and Hogan, the police obtained additional witnesses and
evidence against Kline. Kline only speculates that the State would not have been able to
get that additional evidence in a more timely fashion had he filed for a speedy trial. It
seems just as likely that if Kline’s trial had been expedited the State could have more
quickly offered a plea to Cox, and would still have been able to obtain the same evidence
for an advanced trial date. Additionally, the State already had witnesses and evidence
against Kline before Willis and Hogan were interviewed, and so we cannot agree that
there is a reasonable probability that, but for any failure to file a request for a speedy trial,
the result of the proceeding would have been any different.
Kline has not shown that his counsel’s performance was deficient or that any
deficiency prejudiced him. We conclude that Kline was not denied the effective
assistance of his trial counsel.
6
II. Double Jeopardy
A. Standard of Review
Our supreme court has concluded that two offenses are the same offense for
double jeopardy purposes if, “with respect to either the statutory elements of the
challenged crimes or the actual evidence used to convict, the essential elements of one
challenged offense also establish the essential elements of another challenged offense.”
Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999) (emphasis in original). Under the
actual evidence test, “the actual evidence presented at trial is examined to determine
whether each challenged offense was established by separate and distinct facts.” Id. at
53. To find a double jeopardy violation under this test, we must conclude that there is “a
reasonable possibility that the evidentiary facts used by the fact-finder to establish the
essential elements of one offense may also have been used to establish the essential
elements of a second challenged offense.” Id. A “reasonable possibility” requires
substantially more than a logical possibility, and “turns on a practical assessment of
whether the [fact finder] may have latched on to exactly the same facts for both
convictions.” Garrett v. State, 992 N.E.2d 710, 719-20 (Ind. 2013) (quoting Lee v. State,
892 N.E.2d 1231, 1236 (Ind. 2008)). “We evaluate the evidence from the [fact finder’s]
perspective and may consider the charging information, jury instructions, and arguments
of counsel.” Id. at 720.
B. Kline’s Convictions
Kline next argues that his convictions for both dealing in methamphetamine and
operating an illegal drug lab violate double jeopardy. The record shows that the State
noted at sentencing that it had not sufficiently distinguished between the facts supporting
7
the two counts, and the State now agrees that Kline’s conviction on count II should be
vacated. We also agree, and accordingly we vacate Kline’s conviction and sentence on
count II, operating an illegal drug lab as a Class D felony.
III. Sufficiency of the Evidence
A. Standard of Review
The standard for reviewing sufficiency of the evidence claims is well settled. We
do not reweigh the evidence or assess the credibility of the witnesses. West v. State, 755
N.E.2d 173, 185 (Ind. 2001). Rather, we look to the evidence and reasonable inferences
drawn therefrom that support the verdict and will affirm the conviction if there is
probative evidence from which a reasonable trier-of-fact could have found the defendant
guilty beyond a reasonable doubt. Id.
B. Dealing in Methamphetamine
Kline argues that there is insufficient evidence to support his conviction for
dealing methamphetamine.2 Kline contends that because Cox was a key witness for the
State and the only person to testify that Kline was manufacturing methamphetamine with
him at his residence, and because there were some conflicts between what Cox initially
told the police and what he testified to at trial, Cox’s testimony is unbelievable and the
incredible dubiosity rule comes into play. We disagree.
The incredible dubiosity rule is expressed as follows:
[i]f a sole witness presents inherently improbable testimony and there is a
complete lack of circumstantial evidence, a defendant’s conviction may be
reversed. This is appropriate only where the court has confronted
inherently improbable testimony or coerced, equivocal, wholly
2
Kline also addresses the evidence supporting his conviction for operating an illegal drug lab. However,
because we vacate his conviction on that count on double jeopardy grounds, the issue of sufficiency is moot.
8
uncorroborated testimony of incredible dubiosity. Application of this rule
is rare and the standard to be applied is whether the testimony is so
incredibly dubious or inherently improbable that no reasonable person
could believe it.
Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007) (quoting Love v. State, 761 N.E.2d
806, 810 (Ind. 2002)). We disagree that Cox’s testimony was inherently improbable, or
that there was no additional circumstantial evidence of Kline’s guilt. Even if there had
been no other witnesses against Kline, the uncorroborated testimony of one witness is
sufficient to sustain a conviction on appeal. Gregory v. State, 885 N.E.2d 697, 704 (Ind.
Ct. App. 2008), trans. denied. In addition to Cox’s testimony, there was other
circumstantial evidence against Kline, including Detective Jones’s testimony regarding
the store video footage he saw and the phone conversation he overheard, and Hogan’s
testimony as to the plan to manufacture methamphetamine. As for Cox’s testimony
itself, “discrepancies between a witness’s trial testimony and earlier statements made to
police and in depositions do not render such testimony ‘incredibly dubious.’” Id. at 705.
Determination of the weight to give to evidence and the credibility of witnesses is a
matter for the jury, and we do not reweigh evidence on appeal. We conclude that the
incredible dubiosity rule does not apply here. There was sufficient evidence from which
the jury could have concluded that Kline was guilty beyond a reasonable doubt of dealing
methamphetamine.
IV. Appropriateness of Sentence
A. Standard of Review
We are empowered by Indiana Appellate Rule 7(B) to revise a sentence “if, after
due consideration of the trial court’s decision, the Court finds that the sentence is
9
inappropriate in light of the nature of the offense and the character of the offender.” The
burden is on the defendant to persuade us that his sentence has met this inappropriateness
standard of review. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). When
conducting this inquiry, we may look to any factors appearing in the record. Roney v.
State, 872 N.E.2d 192, 206 (Ind. Ct. App. 2007), trans. denied, abrogated on other
grounds by Bethea v. State, 983 N.E.2d 1134, 1144 (Ind. 2013). In reviewing a sentence
under Appellate Rule 7(B), the question “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). Revision of a
sentence under Indiana Appellate Rule 7(B) requires the appellant to demonstrate that his
sentence is inappropriate in light of both the nature of his offenses and his character.
Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008). The advisory sentence is
our starting point in reviewing the nature of the offense, and the aggravating and
mitigating factors, along with general considerations, are involved in our review of the
character of the offender. Clara v. State, 899 N.E.2d 733, 736 (Ind. Ct. App. 2009).
B. Kline’s Sentence
Finally, Kline argues that his sentence is inappropriate. However, Kline does not
argue that his sentence is inappropriate because of his character and the nature of his
offense; rather, Kline argues that his sentence is inappropriate because of planned
legislative changes to the Indiana sentencing scheme under which Kline calculates that he
would receive a shorter sentence for dealing in methamphetamine. However, legislative
changes that are not even in effect yet are not the guidepost for determining whether a
sentence is inappropriate. As for the considerations that do come into play, we do not
10
find Kline’s sentence to be inappropriate in light of his character and the nature of his
offense. Kline admits that “the severity of his crimes and his past criminal history . . .
don’t directly support a reduction in his sentence.” Appellant’s Brief at 34. Kline
concedes that the manufacturing of methamphetamine is a dangerous operation and a
growing epidemic in our community. And, Kline has an extensive criminal history
involving prior misdemeanors, felonies, and petitions to revoke probation. We conclude
that Kline’s sentence is not inappropriate in light of his character and the nature of his
offense.
Conclusion
Concluding that Kline was not denied the effective assistance of his trial counsel,
there is sufficient evidence to support his conviction for dealing in methamphetamine,
and his sentence is not inappropriate, but that his two convictions together violate double
jeopardy principles, we vacate his conviction and sentence on count II, and otherwise
affirm.
Affirmed in part and reversed in part.
BARNES, J., and BROWN, J., concur.
11
Nathan Allen Kline v. State of Indiana
Combined Opinion