MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 30 2018, 8:54 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mary P. Lake Curtis T. Hill, Jr.
La Porte, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Oscar K. Griffin, January 30, 2018
Appellant-Defendant, Court of Appeals Case No.
46A05-1703-CR-647
v. Appeal from the La Porte Circuit
Court
State of Indiana, The Honorable Thomas J.
Appellee-Plaintiff. Alevizos, Judge
Trial Court Cause No.
46C01-1606-F5-538
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 46A05-1703-CR-647 | January 30, 2018 Page 1 of 11
Statement of the Case
[1] Oscar K. Griffin appeals his conviction and sentence for conspiracy to commit
robbery, as a Level 3 felony, and his sentence following his conviction for
dealing in methamphetamine, as a Level 5 felony. He raises two issues for our
review, which we restate as follows:
1. Whether the State presented sufficient evidence to support
his conviction for conspiracy to commit robbery.1
2. Whether his sentence is inappropriate in light of the nature
of the offense and his character.
[2] We affirm.
Facts and Procedural History
[3] Gina Holliday resided in Fort Wayne with her girlfriend, Dovie Neer. At some
point in 2016, Holliday and Neer began spending time with Griffin, Mario
Hanserd, and Chaniqua Sparks. One day, Holliday and Neer came up with an
idea to “take some drugs down to LaPorte” in order to make some money. Tr.
Vol. III at 73. Griffin, Hanserd, and Sparks were with Holliday and Neer when
Holliday and Neer came up with the idea, and they decided that they wanted to
participate in the plan. On June 22, Holliday contacted Felicia Felix, who was
a confidential informant for the LaPorte County Metro Drug Task Force
(“DTF”). Holliday asked Felix if Felix wanted to purchase a large quantity of
1
Griffin does not appeal his conviction for dealing in methamphetamine, as a Level 5 felony.
Court of Appeals of Indiana | Memorandum Decision 46A05-1703-CR-647 | January 30, 2018 Page 2 of 11
drugs, which included methamphetamine, synthetic marijuana, Vicodin, and
Percocet, for $2,100, and Felix agreed. At some point after Holliday had
contacted her, Felix contacted Detective Rudy Esparza with the DTF to inform
him that Holliday, Holliday’s girlfriend, and three other individuals whom
Felix did not know “were coming in with lots of drugs and that they had
weapons.” Id. at 56.
[4] When Griffin, Holliday, Neer, Hanserd, and Sparks left Fort Wayne to meet
Felix at the agreed-upon location for their exchange, they did not have the
synthetic marijuana, Vicodin, or Percocet that they had originally offered to sell
to Felix. Instead, they planned to sell Felix catnip that Hanserd and Griffin had
packaged to look like synthetic marijuana, and they also planned to sell her
antibiotics instead of the Vicodin and Percocet. They did have a small amount
of methamphetamine.
[5] The five individuals left on June 22 and arrived in LaPorte to meet Felix in the
early morning hours of June 23. While they were en route, Holliday and Neer
communicated with Felix, but there were times when Felix did not answer her
phone. This made Griffin angry. When Felix did not answer her phone on one
occasion, Griffin said, “I don’t care what we got to do, we’re getting this
money.” Id. at 79. He further stated that he would “pistol smack [Felix] if I
have to.” Id. Holliday and Felix made a plan to meet in the Wal-Mart parking
lot later that afternoon to complete the transaction.
Court of Appeals of Indiana | Memorandum Decision 46A05-1703-CR-647 | January 30, 2018 Page 3 of 11
[6] Detective Esparza, along with two other detectives, met with Felix prior to the
deal and told her that the situation was too dangerous for her. As such, the
DTF officers chose Detective Esparza to participate in the transaction as an
undercover officer. Felix informed Holliday that she was trying to steer clear of
drugs, so she was no longer going to purchase the drugs. Instead, Felix told
Holliday that a male dealer was going to buy the drugs. The five dealers
“started getting in an uproar kind of. Like, they were scared, because they were
expecting a white girl[.]” Id. at 159. Even so, they proceeded with the
arrangement.
[7] At approximately 2:00 p.m., the group arrived at the Wal-Mart parking lot.
Griffin moved back to the hatch area of the vehicle and Hanserd ducked down
to hide in the back seat. Holliday and Sparks then exited the vehicle and met
Detective Esparza, whom they believed to be the buyer Felix had sent.
Detective Esparza told Holliday and Sparks that he only wanted to buy a
sample of the methamphetamine instead of the entirety of the contraband that
Felix had originally agreed to purchase.
[8] Holliday and Sparks returned to the vehicle to get the requested amount. When
Griffin learned that Detective Esparza only wanted to buy eighty dollars’ worth
of methamphetamine, he got angry and loud. He said that they were “going to
get this money. I don’t care what we got to do.” Id. at 87. Griffin wanted to
“driv[e] up on the deal” and use the gun to scare the putative buyer. Id. But
Neer, who was in the driver’s seat, did not move the car, and Holliday and
Sparks completed the transaction. When Holliday and Sparks returned to the
Court of Appeals of Indiana | Memorandum Decision 46A05-1703-CR-647 | January 30, 2018 Page 4 of 11
vehicle, several police officers who had watched the exchange surrounded the
vehicle and arrested Griffin and the other four individuals. The officers
discovered that Griffin had brought a BB gun with him and that Hanserd had
brought a 9mm handgun.
[9] The State charged Griffin with dealing in methamphetamine, as a Level 5
felony (Count I); attempt to commit robbery, as a Level 3 felony (Count II); and
conspiracy to commit robbery, as a Level 3 felony (Count III). The trial court
held a jury trial on January 9-10, 2017. During the trial, the State presented the
testimony of Neer and Holliday. Neer testified that, when Griffin and Hanserd
learned that Detective Esparza was only going to buy eighty dollars’ worth of
methamphetamine, they talked “about driving up on the deal, talking about
doing what they needed to do, jumping out, using whatever to get the money
and to just hurry up and drive off.” Id. Holliday testified that Griffin and
Hanserd had hidden themselves in the vehicle because “they were going to try
to jump out and scare this guy. They were gonna do what they could. Because
like I said, they were determined that they weren’t leaving empty-handed no
matter what.” Id. at 161. At the end of the trial, the jury found Griffin guilty of
Count I and Count III but not guilty of Count II. The trial court entered
judgment of conviction accordingly.
[10] The trial court held a sentencing hearing on February 24. During the
sentencing hearing, the trial court identified Griffin’s criminal history as an
aggravating factor. It did not find any mitigating factors. The court sentenced
Griffin to concurrent sentences of twelve years in the Department of Correction
Court of Appeals of Indiana | Memorandum Decision 46A05-1703-CR-647 | January 30, 2018 Page 5 of 11
for the conspiracy to commit robbery conviction and four and one-half years for
the dealing in methamphetamine conviction. This appeal ensued.
Discussion and Decision
Issue One: Sufficiency of the Evidence
[11] Griffin first contends that the State failed to present sufficient evidence to
support his conviction for conspiracy to commit robbery. Our standard of
review on a claim of insufficient evidence is well settled:
For a sufficiency of the evidence claim, we look only at the
probative evidence and reasonable inferences supporting the
verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do
not assess the credibility of witnesses or reweigh the evidence. Id.
We will affirm the conviction unless no reasonable fact-finder
could find the elements of the crime proven beyond a reasonable
doubt. Id.
Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).
[12] A person commits robbery, as a Level 3 felony, when that person, while armed
with a deadly weapon, knowingly or intentionally takes property from another
person by using or threatening the use of force on any person or by putting any
person in fear. Ind. Code § 35-42-5-1(a). And a “person conspires to commit a
felony when, with intent to commit the felony, the person agrees with another
person to commit the felony.” I.C. § 35-41-5-2(a). To prove conspiracy, the
State “must allege and prove that either the person or the person with whom he
or she agreed performed an overt act in furtherance of the agreement.” I.C. §
35-41-5-2(b). Griffin maintains that “[t]here is no evidence pointing to the
Court of Appeals of Indiana | Memorandum Decision 46A05-1703-CR-647 | January 30, 2018 Page 6 of 11
existence of an independent agreement with Griffin, [Hanserd], and
[Sparks] . . . to commit a robbery.”2 Appellant’s Br. at 16.
[13] The State is not required to prove that an express, formal agreement existed.
Guffey v. State, 42 N.E.3d 152, 164 (Ind. Ct. App. 2015), trans. denied. Instead,
“[i]t is sufficient if the minds of the parties meet understandingly to bring about
an intelligent and deliberate agreement to commit the offense . . . . This may be
inferred from the acts committed and the circumstances surrounding the
defendant’s involvement.” Conn v. State, 948 N.E.2d 849, 853 (Ind. Ct. App.
2011) (quoting Minniefield v. State, 512 N.E.2d 1103, 1105 (Ind. 1987))
(omission original to Conn). Therefore, proof of the conspiracy may rest
entirely on circumstantial evidence. Id.
[14] Here, the evidence most favorable to the judgment includes Neer’s testimony
that Griffin had stated that he would use force to obtain the money and that
Griffin had talked about “driving up on the deal” and “doing what they needed
to do” and “using whatever to get the money[.]” Tr. Vol. III at 87. It also
includes the State’s evidence that both Griffin and Hanserd brought weapons
with them and that the two men hid in the vehicle during the transaction
because they “were going to try to jump out and scare this guy. They were
2
Griffin only contends that the State failed to present sufficient evidence that an agreement existed. He does
not contend that the State failed to present sufficient evidence that he, or another person, performed an overt
act in furtherance of the agreement.
Court of Appeals of Indiana | Memorandum Decision 46A05-1703-CR-647 | January 30, 2018 Page 7 of 11
gonna do what they could. Because like I said, they were determined that they
weren’t leaving empty-handed no matter what.” Id. at 161.
[15] We hold that the State presented sufficient evidence from which a reasonable
jury could infer that Griffin and Hanserd had an agreement to rob the
undercover officer, and that the robbery would have happened but for the fact
that Neer refused Griffin’s request to move the car. See Conn, 984 N.E.2d at
853. Griffin’s assertion that there was no separate agreement to commit
robbery amounts to a request that we reweigh the evidence, which we cannot
do. See Love, 73 N.E.3d at 696. Accordingly, we affirm Griffin’s conviction for
conspiracy to commit robbery, as a Level 3 felony.
Issue Two: Inappropriateness of Sentence
[16] Griffin also contends that his sentence is inappropriate in light of the nature of
the offenses and his character. Indiana Appellate Rule 7(B) provides that “[t]he
Court may revise a sentence authorized by statute 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.” This court
has recently held that “[t]he advisory sentence is the starting point the
legislature has selected as an appropriate sentence for the crime committed.”
Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017). And the Indiana
Supreme Court has recently explained that:
The principal role of appellate review should be to attempt to
leaven the outliers . . . but not achieve a perceived “correct”
result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
Court of Appeals of Indiana | Memorandum Decision 46A05-1703-CR-647 | January 30, 2018 Page 8 of 11
2008). Defendant has the burden to persuade us that the
sentence imposed by the trial court is inappropriate. Anglemyer v.
State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007),
decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).
Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).
[17] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we
regard a sentence as inappropriate at the end of the day turns on “our sense of
the culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other facts that come to light in a given case.” Id. at 1224.
The question is not whether another sentence is more appropriate, but rather
whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,
268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless
overcome by compelling evidence portraying in a positive light the nature of the
offense (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).
[18] Here, the trial court identified Griffin’s criminal history as an aggravating
factor, and it did not find any mitigating factors. The sentencing range for a
Level 3 felony is three years to sixteen years, with an advisory sentence of nine
years. I.C. § 35-50-2-5(b). And the sentencing range for a Level 5 felony is one
year to six years, with an advisory sentence of three years. I.C. § 35-50-2-6(b).
Court of Appeals of Indiana | Memorandum Decision 46A05-1703-CR-647 | January 30, 2018 Page 9 of 11
The trial court sentenced Griffin to a sentence of twelve years for his conviction
for a Level 3 felony and a sentence of four and one-half years for his conviction
for a Level 5 felony, which the court ordered to be served concurrently.
[19] Griffin asserts that his sentence is inappropriate in light of the nature of the
offense because his “participation in the crimes was limited to his agreement to
participate in the preparation and packaging of catnip to pass off as synthetic
marijuana.” Appellant’s Br. at 18. But the State points out that Griffin
“urg[ed] the others to use whatever force was necessary to obtain the money”
from the undercover officer. Appellee’s Br. at 22. Further, Griffin brought a
weapon with him, hid in the vehicle during the transaction with the intent to
surprise the undercover officer, and demonstrated a clear willingness to use
force to obtain the full $2,100. We cannot say that Griffin’s sentence is
inappropriate in light of the nature of the offenses given his express willingness
to use force to obtain the money.
[20] Griffin further asserts that his sentence is inappropriate in light of his character.
He contends that he is blind, has a severe limp, and suffers from post-traumatic
stress disorder. He further contends that he “led a law-abiding life for a
significant period of time [thirteen years] prior to these offenses[.]” Appellant’s
Br. at 19. But, as the State points out, Griffin’s criminal history is significant.
Prior to the present offense, Griffin had been convicted of crimes in two
different states. Those prior convictions include a conviction in Illinois in 1998
for felony possession of a firearm, a conviction in Missouri in 2004 for felony
possession of a controlled substance, a conviction in Missouri in 2004 for
Court of Appeals of Indiana | Memorandum Decision 46A05-1703-CR-647 | January 30, 2018 Page 10 of 11
obstructing an officer, and a conviction in Missouri in 2008 for resisting an
officer. And his current offense, along with two of his prior felony convictions,
involve drugs and weapons. In sum, Griffin’s criminal history reflects his poor
character. See Stephenson, 29 N.E.3d at 122. We hold that Griffin’s sentence is
not inappropriate. Accordingly, we affirm his sentence.
[21] Affirmed.
Mathias, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 46A05-1703-CR-647 | January 30, 2018 Page 11 of 11