MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 05 2017, 8:42 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stacy R. Uliana Curtis T. Hill, Jr.
Bargersville, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brandon L. Garner, July 5, 2017
Appellant-Defendant, Court of Appeals Case No.
62A04-1612-CR-2774
v. Appeal from the Perry Circuit
Court
State of Indiana, The Honorable Lucy Goffinet,
Appellee-Plaintiff. Judge
Trial Court Cause No.
62C01-1603-F3-165
Bradford, Judge.
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Case Summary
[1] After a jury trial, Appellant-Defendant Brandon L. Garner was convicted of
conspiracy to commit dealing in methamphetamine, conspiracy to commit
maintaining a common nuisance, and resisting law enforcement. The trial
court sentenced Garner to fourteen years executed for conspiracy in dealing,
two years for conspiracy in maintaining a common nuisance, and one year for
resisting law enforcement. The first and second sentences were ordered to run
consecutively and the third sentence was to run concurrent with the first
sentence, for an aggregate sentence of sixteen years of incarceration.
[2] Garner argues the following restated issues: 1) whether Garner’s convictions for
two conspiracies violates the actual evidence test; 2) whether there was a fatal
variance between pleading and proof for the conspiracy to deal charge when the
State proved that Garner possessed a firearm on the charged date; and 3)
whether Garner’s sentence was inappropriate in light of the nature of his
offenses and his character. Because the two conspiracy convictions violate the
actual evidence test, we reverse the trial court, vacate the conspiracy to
maintaining a common nuisance conviction, and reduce Garner’s sentence by
two years. We affirm the trial court on all other issues.
Facts and Procedural History
[3] Alicia Kellems and Garner met in November of 2015 through mutual friends
who used methamphetamine together. The two bonded over their shared
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interest in drugs and began dating in January of 2016. It was around this time
that Kellems and Garner decided to start buying methamphetamine in
Louisville, Kentucky, to resell in Tell City, Indiana. Shortly before their
relationship began, Kellems was convicted of dealing in methamphetamine,
and Garner was released to parole after having served time for other parole
violations.
[4] Starting in January of 2016, Kellems and Garner would regularly drive to
Louisville to buy 14 grams of methamphetamine, which they would sell out of a
hotel room in Tell City. The couple then personally ingested whatever drugs
they were unable to sell.
[5] When Garner and Kellems initially began dealing the methamphetamine, they
had to borrow friends’ vehicles to retrieve their supply in Louisville because
neither one owned a vehicle. Eventually, the two purchased a truck that they
registered in Kellems’s name because Garner did not have a valid license. The
couple drove the truck regularly, and they had joint access to the vehicle. The
couple also carried firearms for their own protection when they went to
Louisville to buy drugs. From January of 2016 until March of 2016, Kellems
and Garner did not have a permanent residence, so they would stay either with
Garner’s mother or in a hotel. Due to the fact that they did not have a
permanent residence, they often kept their personal belongings in their truck.
[6] On the evening of March 16, 2016, a hotel clerk at the Ramada Inn in Tell City
called police to inform them that a loud argument was taking place in room 220
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and the clerk feared that physical violence may be occurring. Officer Jason
Shadwick of the Tell City Police Department was dispatched to the scene.
When Officer Shadwick arrived outside of room 220, he could hear a male and
a female yelling at each other. The yelling stopped when Officer Shadwick
knocked on the door.
[7] Inside the room, Kellems grabbed a loaded handgun and slid it across the bed
to Garner. Garner threw the gun out of the room’s only window along with
their mobile telephones, a bottle of cologne, and a pack of cigarettes. After he
threw the items out of the window, Garner hid under the bathroom sink, and
Kellems attempted to conceal him by pushing baskets of clothes up against the
sink.
[8] Kellems eventually opened the door and allowed Officer Shadwick inside.
Officer Shadwick asked Kellems where the other party was and she indicated
that he had jumped out of the window. However, after looking at the window,
Officer Shadwick discovered that the window had a locking mechanism that
would not allow it to open widely enough for a person to fit through it.
Concluding that the male he had heard from outside was still in the room,
Officer Shadwick escorted Kellems outside. Officer Shadwick then saw an arm
sticking out from under the sink and ordered Garner to come out. Garner
refused to exit so Officer Shadwick grabbed Garner’s wrist to place a handcuff
on it. Garner struggled against Officer Shadwick’s attempt to extract him and
used his elbow to strike Officer Shadwick in the right eye. Despite the struggle,
Officer Shadwick was able to place Garner under arrest. Then Officer
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Shadwick patted Garner down and found a pill bottle inside of Garner’s pocket.
Inside of the bottle was a plastic bag containing 3.07 grams of
methamphetamine.
[9] During a search of the room, officers found two larger bags containing various
drug paraphernalia. One of the bags—a bag with a Mickey Mouse design on
it—contained a pill bottle with pseudoephedrine pills and lithium batteries.
Inside the other bag, the police found a digital scale with white powder residue,
a spoon with residue, various empty plastic bags, a grinder with white residue,
another half of a grinder, rolling paper, and a notebook. Police seized $1100
dollars from the room. Finally, a search of Garner and Kellems’s truck led to
the discovery of three firearms in addition to the one that Garner had thrown
out of the window.
[10] Police also recovered the two mobile telephones that had been thrown out of
the hotel room’s window. The mobile telephones had been used by Garner and
Kellems. Text messages referencing methamphetamine deals were later
extracted from the mobiles telephones.
[11] On March 21, 2016, the State charged Garner with Level 3 felony conspiracy to
commit dealing in methamphetamine, Level 5 felony conspiracy to commit
possession of chemical reagents or precursors with intent to manufacture a
controlled substance, Level 5 felony conspiracy to commit possession of
methamphetamine, three counts of Level 6 felony conspiracy to commit
possession of a controlled substance, Level 6 felony unlawful possession of a
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syringe, Level 6 felony conspiracy to commit maintaining a common nuisance,
Level 6 felony unlawful possession of use of a legend drug, Level 5 felony
battery against a public safety official, Class A misdemeanor resisting law
enforcement, and four counts of Class C misdemeanor conspiracy to commit
possession of paraphernalia. The prosecutor amended and dismissed some of
the charges prior to Garner’s jury trial. On October 17 and 18, 2016, Garner
was tried on Amended Count 1, conspiracy to commit dealing in
methamphetamine, a Level 3 felony; Amended Count 2, possession of
precursors with the intent to manufacture, a Level 5 felony; Amended Count 3,
conspiracy to commit possession of methamphetamine, a Level 5 felony;
Amended Count 7, unlawful possession of a syringe, a Level 6 felony;
Amended Count 8, conspiracy to commit maintaining a common nuisance, a
Level 6 felony; Amended Count 10, battery against a public safety official, a
Level 5 felony; and Amended Count 11, resisting law enforcement, a Class A
misdemeanor.
[12] The jury acquitted Garner of Amended Count 2, possession of precursors;
Amended Count 7, unlawful possession of a syringe; and Amended Count 10,
battery against a public safety official. The jury convicted Garner of Amended
Count 1, Level 3 felony conspiracy to commit dealing in methamphetamine;
Amended Count 3, Level 5 felony conspiracy to possess methamphetamine;
Amended Count 8, Level 6 felony conspiracy to maintain a common nuisance;
and Amended Count 11, Class A misdemeanor resisting law enforcement. The
trial court vacated Garner’s conviction for Amended Count 3, Level 5 felony
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conspiracy to commit possession of methamphetamine, due to double jeopardy
concerns.
[13] On November 16, 2016, the trial court sentenced Garner to fourteen years
executed for his conspiracy to deal methamphetamine conviction. For
conspiracy to maintain a common nuisance, the trial court imposed a two-year
sentence to be served consecutive to the fourteen-year sentence. The trial court
also imposed a one-year sentence for resisting law enforcement to be served
concurrent with the other two sentences. Garner received an aggregate sixteen-
year sentence.
Discussion and Decision
I. Actual Evidence
[14] Garner’s first argument claims that his dual convictions for conspiracy to deal
in methamphetamine and conspiracy to maintain a common nuisance cannot
both stand. Garner supports his argument with a “one conspiracy, one
conviction” rule and two cases—Perkins v. State, 483 N.E.2d 1379 (Ind. 1985)
and Sharp v. State, 569 N.E.2d 962 (Ind. Ct. App. 1991)—decided before the
establishment of the actual evidence test in Richardson v. State, 717 N.E. 2d 32
(Ind. 1999). The State agrees with Garner’s contention that the conviction for
conspiracy to maintaining a common nuisance should be vacated, but relies
upon different case law. The State specifically argues that the conviction for
conspiracy to maintain a common nuisance should be vacated and the case
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should be remanded for re-sentencing because the two convictions violate the
actual evidence test from Richardson. Due to the fact that the State concedes
that one of the convictions should be vacated, and the case law advanced by
both parties leads to the same result, we vacate the conviction for conspiracy to
maintain a common nuisance without needing to address whether Perkins and
Sharp remain good law. Additionally, due to the vacated conviction, we reduce
Garner’s sentence from sixteen years to fourteen years.
II. Variance
[15] Garner argues that there was a fatal variance between the charging information
and the evidence presented at trial as to whether Garner possessed a firearm on
the charged date. Pursuant to Indiana Code sections 35-48-1-16.5 and 35-48-4-
1.1, possession of a firearm while a person is committing the offense is an
enhancing circumstance. In Garner’s case, the existence of an enhancing
circumstance raises the crime of dealing in methamphetamine from a Level 4
felony to a Level 3 felony. Ind. Code § 35-48-1-16.5.
[16] Under Indiana Code Section 35-34-1-2, an information “shall be a plain,
concise, and definite written statement of the essential facts constituting the
offense charged.” “The purpose of the charging information is to provide a
defendant with notice of the crime of which he is charged so that he is able to
prepare a defense.” Gilliland v. State, 979 N.E.2d 1049, 1060 (Ind. Ct. App.
2012). “The State is under no obligation to include detailed factual allegations;
rather, a charging information satisfies due process if it ‘enables an accused, the
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court, and the jury to determine the crime for which conviction is sought.’”
Elvers v. State, 22 N.E.3d 824, 832 (Ind. Ct. App. 2014) (quoting Gilliland, 979
N.E.2d at 1060).
[17] Generally, the State must prove all of the material allegations in a charging
information. Daniels v. State, 975 N.E.2d 1025, 1028 (Ind. Ct. App. 2011). “A
variance is an essential difference between the allegations of the charging
document and the proof at trial.” Id. at 1030. A variance is material if one of
two conditions is satisfied. First, the defendant must have been “misled by the
variance in the evidence from the allegations and specifications in the charge in
the preparation and maintenance of his defense, and … was harmed or
prejudiced thereby.” Id. Second, there is a risk of a double jeopardy violation
in a future criminal proceeding covering the same event, facts and evidence. Id.
“Put another way, if the variance either misleads the defendant in the
preparation of his defense resulting in prejudice or leaves the defendant
vulnerable to double jeopardy in a future criminal proceeding covering the same
event and evidence, then the variance is fatal.” Broude v. State, 956 N.E.2d 130,
136 (Ind. Ct. App. 2011).
[18] The State charged:
On or about March 16, 2016 at 234 Orchard Hill Drive, Tell
City, in Perry County, State of Indiana, Brandon L. Garner did
knowingly or intentionally conspire to possess with the intent to
deliver methamphetamine, pure or adultered, said
methamphetamine weighing at least 1 gram, but less than 5
grams and while the said Brandon L[.] Garner was in possession
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of a firearm and did perform an overt act in furtherance of the
conspiracy, to-wit: did meet with Alicia D[.] Kellems while he
physically possessed a quantity of narcotics and she physically
possessed tools for measuring, packaging and distributing
narcotics.
App. Vol. II, p. 49. Garner argues that at trial the State merely presented
evidence that he possessed a firearm while dealing sometime during the two-
and-a-half months prior to March 16, 2016 as opposed to on March 16, 2016.
Specifically, Garner argues that the State did not present evidence that he
possessed the firearms found in the truck in the motel parking lot on March 16,
2016. Garner also asserts that the State did not present evidence that Garner
was aware that there was a gun in the motel room on March 16, 2016. In
“expanding” the time period during which he allegedly possessed the gun,
Garner argues that he was misled and confused as to what criminal activity he
needed to prepare a defense for.1 Appellant’s Br. p. 17.
[19] Contrary to Garner’s contention, the State presented evidence that Garner
actually possessed a firearm on the charged date. When Officer Shadwick
knocked on the hotel room door on March 16, 2016, Kellems testified that she
1
Garner also appears to make an argument regarding a jury instruction. The instruction at issue said: “The
State is not required to prove that the crime charged was committed on the particular date or during a
particular time period alleged in the information.” App. Vol. III, p. 93; Tr. Vol. II, p. 176. As Garner did
not challenge the instruction prior to this appeal, the issue is waived. See Griffin v. State, 16 N.E.3d 997 (Ind.
Ct. App. 2014).
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passed the firearm to Garner who then threw it out of the window. This
testimony is consistent with fact that officers found a loaded handgun directly
below the window along with Kellems’s and Garner’s telephones. This is
evidence that Garner actually possessed a firearm on the date the State charged
him with being in possession of a handgun while conspiring to deal.
Consequently, Garner has failed to establish any fatal variances between the
proof and pleading.
III. Was Garner’s Sentence Inappropriate
[20] Under Indiana Appellate Rule 7(B), “[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.” When reviewing such claims, we
“concentrate less on comparing the facts of the [case at issue] to others, whether
real or hypothetical, and more on focusing on the nature, extent, and depravity
of the offense for which the defendant is being sentence, and what it reveals
about the defendant’s character.” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct.
App. 2008) (internal quotes and citations omitted). Garner, as the defendant,
bears the burden of persuading us that his sentence is inappropriate. Sanchez v.
State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008). Garner was originally
sentenced to an aggregate sentence of sixteen years for his three convictions.
However, due to the fact that we vacated one of his convictions, his sentence
has been reduced to fourteen years.
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[21] With respect to the nature of his offenses, Garner was involved in a drug-
dealing conspiracy whose scope and activities went far beyond the need to
satisfy Garner’s own desire to use the drugs. Kellems testified that the
“majority” of the drugs that they routinely bought from Louisville were sold.
Tr. Vol. II, p. 99. Any remaining drugs were then consumed by Garner and
Kellems.
[22] Garner argues that he was not dealing in methamphetamine to make a profit.
Kellems, however, testified that she and Garner bought a truck to further their
operation, and purchased guns to protect themselves while they were traveling
across state lines to buy large quantities of methamphetamine. This evidence
supports a conclusion that Garner was dealing to make a profit. Given the
nature of his offense, a fourteen-year sentence does not seem inappropriate.
[23] Garner’s argument regarding his character also fails to show that his sentence is
inappropriate.2 By the age of 23, Garner had accumulated adult convictions for
burglary, possession of a synthetic drug, possession of paraphernalia, and
intimidation and two convictions for battery resulting in bodily injury. As for
his juvenile record, Garner was found to have committed theft twice, burglary,
escape, battery resulting in bodily injury, resisting law enforcement, and
criminal mischief. Moreover, Garner was already on parole and had been
2
Garner also claims that he has mental health issues that should be considered as a mitigating factor. There
is no evidence from a medical professional to support such claim. Therefore, the trial court was entitled to
disregard such claims during sentencing.
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sanctioned twice for parole violations at the time that the current offense was
committed. Garner has not carried his burden to prove that his sentence was
inappropriate in light of his character.
Conclusion
[24] In sum, we conclude that the conspiracy to maintain a common nuisance
conviction must be vacated because Garner’s two conspiracy convictions
violated the actual evidence test in Richardson and his sentence should be
reduced to fourteen years. We also hold that there was not a fatal variance
between pleading and proof as to whether Garner possessed a firearm on the
charged date. Finally, we conclude that Garner has failed to establish that his
sentence is inappropriate in light of the nature of his offenses and his character.
Thus, we reverse in part and affirm in part.
Najam, J., and Riley, J., concur.
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