MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 26 2017, 6:16 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Curtis T. Hill, Jr.
Madison, Indiana Attorney General of Indiana
Katherine Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Cathy L. Sizemore-Roessler, April 26, 2017
Appellant-Defendant, Court of Appeals Case No.
15A01-1609-CR-2090
v. Appeal from the Dearborn
Superior Court
State of Indiana, The Honorable Sally A.
Appellee-Plaintiff McLaughlin, Judge
Trial Court Cause No.
15D02-1506-F2-9
Altice, Judge.
Case Summary
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[1] Cathy L. Sizemore-Roessler appeals following her conviction for Level 2 felony
conspiracy to commit dealing in methamphetamine. She presents the following
two issues on appeal:
1. Did the State present sufficient evidence to support Sizemore-
Roessler’s conviction?
2. Is Sizemore-Roessler’s twelve-year sentence inappropriate?
[2] We affirm.
Facts & Procedural History
[3] During the time relevant to this appeal, Sizemore-Roessler owned property on
Morgan Road in Dearborn County. There was a residence on the property, in
which Sizemore-Roessler lived with her two adult sons, Joseph and Michael
Sizemore, as well as Kenneth Reed, Corey Lyons, and Carl Gallardo. There
was also a trailer located on the property, in which Michael and Mary Robbins,
Janice Lay, and Jimmy McConnell resided.
[4] In March 2015, Detective Carl Pieczonka of the Dearborn County Sheriff’s
Department received a tip from a confidential informant that Joseph was
manufacturing methamphetamine on his mother’s property and that multiple
people were purchasing pseudoephedrine for Joseph to use in the
manufacturing process. Detective Pieczonka began his investigation by
accessing the National Precursor Log Exchange (NPLEX), a national database
where purchases of pseudoephedrine are logged. State law limits the amount of
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pseudoephedrine an individual may purchase to seven grams per month.
NPLEX records revealed that Sizemore-Roessler had purchased 21.84 grams of
pseudoephedrine between March 6 and May 30, 2015. NPLEX records further
revealed that several of the individuals living on Sizemore-Roessler’s property
had also purchased pseudoephedrine during the same timeframe.
[5] During the course of his investigation, Detective Pieczonka learned that
Sizemore-Roessler had been transporting other people to purchase
pseudoephedrine. As a result, on May 6, 2015, Detective Pieczonka obtained a
warrant to place a tracking device on Sizemore-Roessler’s vehicle. Law
enforcement used the tracking device to conduct mobile surveillance and
observed Sizemore-Roessler transporting various individuals to and from a
Kroger Pharmacy and other locations. Detective Pieczonka also learned that
Sizemore-Roessler had purchased lithium batteries and Coleman camp fuel,
both of which are methamphetamine precursors.
[6] Law enforcement executed a search warrant at Sizemore-Roessler’s property on
June 1, 2015. The officers located an active methamphetamine lab in a shed,
along with numerous items related to methamphetamine manufacturing in the
shed, in a burn pile near the shed, and inside Sizemore-Roessler’s house. Police
also found methamphetamine in the shed and inside the house. In Sizemore-
Roessler’s vehicle, police found batteries, receipts for lantern fuel and batteries,
a handwritten shopping list for salt and coffee filters, and several handguns with
clips and magazines.
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[7] As a result of the investigation, Sizemore-Roessler was charged, along with
most of the individuals living on her property, with Level 2 felony conspiracy to
commit dealing in methamphetamine in an amount greater than ten grams and
Level 2 felony dealing in methamphetamine in an amount greater than ten
grams. Sizemore-Roessler’s codefendants pled guilty to lesser offenses, but
Sizemore-Roessler’s case proceeded to a bench trial, at which Sizemore-
Roessler appeared pro se. At the conclusion of the evidence, the trial court
convicted Sizemore-Roessler of the conspiracy charge and imposed a twelve-
year executed sentence. Sizemore-Roessler now appeals. Additional facts will
be provided as necessary.
Discussion & Decision
1. Sufficiency of the Evidence
[8] Sizemore-Roessler argues that the State presented insufficient evidence to
support her conspiracy conviction. 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
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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).
[9] To convict Sizemore-Roessler of Level 2 felony conspiracy to commit dealing
in methamphetamine as charged, the State was required to prove that
Sizemore-Roessler, with the intent to commit dealing in methamphetamine in
an amount greater than ten grams, agreed with the charged co-conspirators to
commit that offense and performed an overt act in furtherance of the
agreement, namely, purchasing pseudoephedrine and/or other
methamphetamine precursors. Appellant’s Appendix Vol. 2 at 36. See also Ind.
Code § 35-41-5-2; Ind. Code § 35-48-4-1.1. To support a conspiracy conviction,
the State need not present direct evidence of a formal express agreement. Erkins
v. State, 13 N.E.3d 400, 407 (Ind. 2014). “The agreement as well as the
requisite guilty knowledge and intent may be inferred from circumstantial
evidence alone, including overt acts of the parties in pursuance of the criminal
act.” Id. (quoting Survance v. State, 465 N.E.2d 1076, 1080 (Ind. 1984)).
[10] Sizemore-Roessler does not dispute that methamphetamine was being
manufactured on her property. Rather, she argues that the State presented
insufficient evidence to establish that she was a party to any agreement to do so.
We disagree. The State presented evidence that Sizemore-Roessler bought a
significant amount of pseudoephedrine and other precursors for Joseph and
Lyons, who were manufacturing methamphetamine on her property. The State
also presented evidence that Sizemore-Roessler transported several other people
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to do the same on numerous occasions. Indeed, Kenneth Reed testified that
Sizemore-Roessler threatened to kick him out if he did not comply with her
demands to purchase pseudoephedrine. Multiple witnesses testified that
Sizemore-Roessler knew that these items were being used to manufacture
methamphetamine, and Sizemore-Roessler admitted at trial that she knew
Joseph and Lyons were manufacturing methamphetamine on her property.
This evidence was more than sufficient to support Sizemore-Roessler’s
conspiracy conviction, and her arguments to the contrary are nothing more
than requests to reweigh the evidence.
2. Inappropriate Sentence
[11] Sizemore-Roessler also argues that her twelve-year executed sentence is
inappropriate. 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) (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). “Such deference should prevail unless overcome
by compelling evidence portraying in a positive light the nature of the offense
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(such as accompanied by restraint, regard, and lack of brutality) and the
defendant’s character (such as substantial virtuous traits or persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[12] 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).
[13] In order to assess the appropriateness of a sentence, we first look to the
statutory range established for the classification of the relevant offense.
Sizemore-Roessler was convicted of Level 2 felony conspiracy to commit
dealing in methamphetamine. The sentencing range for a Level 2 felony is ten
to thirty years, with an advisory sentence of seventeen and a half years. Ind.
Code § 35-50-2-4.5. When a defendant has received the advisory sentence, he
or she faces a “particularly heavy burden” in persuading this court that the
sentence is inappropriate. Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct.
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App. 2011), trans. denied. That burden is even more formidable where, as here,
the defendant receives a sentence well below the advisory.
[14] Considering the nature of the offense, we note that Sizemore-Roessler was an
active participant in a criminal methamphetamine manufacturing enterprise.
She knowingly allowed Joseph and Lyons to cook methamphetamine on her
property and provided them with materials to do so on numerous occasions.
Sizemore-Roessler purchased many of these items herself, and she also asked
several others to do the same and transported them to do so. Furthermore,
Reed testified that Sizemore-Roessler threatened to kick him out if he did not
comply with her demands to purchase pseudoephedrine. The combined efforts
of Sizemore-Roessler and her codefendants resulted in the purchase of 162.2
grams of pseudoephedrine over a three-month period. Law enforcement
officers testified that this amount of pseudoephedrine would yield much more
than ten grams of methamphetamine. We note further that police found four
handguns and ammunition in Sizemore-Roessler’s vehicle. Moreover, by
allowing an active methamphetamine lab on her property, Sizemore-Roessler
endangered the lives and health of the numerous people and animals who lived
there.
[15] Considering the character of the offender, we acknowledge that Sizemore-
Roessler has no prior criminal history. We note further, however, that
Sizemore-Roessler has refused to follow some of the jail’s rules and testified
that she continues to refuse to move to general population as ordered.
Sizemore-Roessler also stated that she would continue to take pseudoephedrine
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even though her health conditions make it unsafe for her to do so and it can be
used to make methamphetamine.
[16] Sizemore-Roessler’s main argument is that her sentence is inappropriate
because Joseph and Lyons, who carried out the actual manufacturing of
methamphetamine, received shorter sentences than she did. Specifically,
Joseph was sentenced to sixteen years with six years suspended and Lyons was
sentenced to ten years executed. As an initial matter, we are unconvinced by
Sizemore-Roessler’s argument that she is less culpable than her codefendants
simply because she did not undertake to manufacture methamphetamine
herself. The evidence presented established that she was an active participant
and provided numerous precursors and a location for Joseph and Lyons to cook
methamphetamine. Moreover, Joseph and Lyons each pled guilty to a Level 3
felony, while Sizemore-Roessler was convicted after a bench trial of a Level 2
felony. It is therefore unsurprising that her executed sentence exceeds those of
Joseph and Lyons.
[17] In sum, the trial court in this case exercised considerable lenience when it
sentenced Sizemore-Roessler to twelve years—a sentence well below the
advisory of seventeen and half years for a Level 2 felony. Sizemore-Roessler
has fallen far short of establishing that her sentence is inappropriate.
[18] Judgment affirmed.
[19] Kirsch, J. and Mathias, J., concur.
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