Brandon L. Garner v. State of Indiana (mem. dec.)
62A04-1612-CR-2774
| Ind. Ct. App. | Jul 5, 2017Background
- Garner and Alicia Kellems began a relationship in early 2016 and together purchased methamphetamine in Louisville to resell in Tell City, Indiana; they used a truck registered to Kellems and kept belongings there.
- From January–March 2016 they repeatedly transported ~14 grams of methamphetamine per trip, sold most of it from a hotel room, and consumed leftovers; they carried firearms for protection.
- On March 16, 2016, hotel staff called police about a disturbance; Kellems handed a loaded handgun to Garner, who threw it (and phones) out a hotel-room window and hid under a sink; police recovered the handgun beneath the window, three more firearms in the truck, drugs (3.07 g meth in a pill bottle), drug paraphernalia, and $1,100.
- Text messages extracted from the recovered phones referenced meth deals; Kellems testified that most of the drugs they bought were sold.
- Garner was convicted by jury of conspiracy to commit dealing in methamphetamine (Level 3), conspiracy to maintain a common nuisance (Level 6), and resisting law enforcement (Class A misdemeanor); one conspiracy conviction (possession) was vacated at trial for double jeopardy; the trial court sentenced Garner to 14 years (dealing), +2 years consecutive (common nuisance), +1 year concurrent (resisting) = 16 years aggregate.
- On appeal the court vacated the conspiracy-to-maintain-common-nuisance conviction under the actual-evidence test and reduced Garner’s aggregate sentence to 14 years; the court affirmed on variance and sentence-inappropriateness issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dual conspiracy convictions violate the actual-evidence test | State conceded that the two conspiracy convictions cannot both stand under Richardson and urged vacatur of the common-nuisance conviction | Garner argued "one conspiracy, one conviction" and relied on Perkins and Sharp to challenge dual convictions | Vacated the conspiracy-to-maintain-common-nuisance conviction under the actual-evidence test; sentence reduced by two years |
| Whether there was a fatal variance between the information and proof about firearm possession on the charged date | State argued proof established Garner possessed the firearm on March 16, 2016 (Kellems passed the gun to Garner who threw it out the window; police recovered the gun below the window) | Garner argued the evidence only showed he possessed firearms sometime during the prior months, not specifically on March 16, and that he was misled about the charged date | No fatal variance: evidence supported possession on the charged date, so the information adequately matched proof |
| Whether Garner’s sentence was inappropriate under App. R. 7(B) | State maintained the sentence was appropriate given the scope of the drug-dealing conspiracy and Garner’s criminal history | Garner argued his sentence was inappropriate considering his character and asserted (unsupported) mental-health mitigation | Court found the 14-year sentence appropriate given offense nature (profit-motivated dealing, interstate activity, firearms) and Garner’s significant juvenile/adult record; Garner failed to meet burden to show inappropriateness |
Key Cases Cited
- Perkins v. State, 483 N.E.2d 1379 (Ind. 1985) (discussed in relation to single-conspiracy principles)
- Sharp v. State, 569 N.E.2d 962 (Ind. Ct. App. 1991) (discussed in relation to single-conspiracy principles)
- Richardson v. State, 717 N.E.2d 32 (Ind. 1999) (established the actual-evidence test for duplicative convictions)
- Daniels v. State, 975 N.E.2d 1025 (Ind. Ct. App. 2012) (variance definition and materiality standards)
- Gilliland v. State, 979 N.E.2d 1049 (Ind. Ct. App. 2012) (charging information notice requirements)
- Broude v. State, 956 N.E.2d 130 (Ind. Ct. App. 2011) (clarifies when a variance is fatal)
- Elvers v. State, 22 N.E.3d 824 (Ind. Ct. App. 2014) (charging information sufficiency standard)