Hollowell v. State, 49A04-1012-CR-736
| Decision Date | 19 August 2011 |
| Docket Number | No. 49A04-1012-CR-736,49A04-1012-CR-736 |
| Parties | ANTHONY HOLLOWELL, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited 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:
MICHAEL C. BORSCHEL
GREGORY F. ZOELLER
Attorney General of Indiana
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Peggy Hart, Master Commissioner
Anthony Hollowell appeals his conviction for conspiracy to commit dealing in cocaine, as a Class B felony, and the sentence imposed following a jury trial. We consider the following restated issues:
We affirm.
On July 6, 2010, a confidential informant ("the CI") reported to Detective Timothy Waters of the Indianapolis Metropolitan Police Department ("IMPD") that someone was selling cocaine on Addison Street in Indianapolis. Detective Waters, acting as case manager of the ensuing investigation, asked Detective Ethan McGivern to make an undercover buy with the CI. The CI was to take Detective McGivern to a home on Addison Street, introduce him to Grant Jenkins, negotiate the purchase, and then travel to another location to consummate the purchase.
In preparation for the operation, Detective Waters searched the CI. He also fitted Detective McGivern with a Kel, a recording and transmitting device, and photocopied two twenty-dollar bills to use for the drug purchase.
At approximately 7:20 p.m., Detective McGivern and the CI drove to 265 North Addison Street and saw two African-American men on the front porch. Jenkins was one of the men. When the CI and Detective McGivern approached the porch, the CI approached Jenkins and told him that Detective McGivern wanted a "40," meaning forty dollars' worth, or four-tenths of a gram, of cocaine. Jenkins made a phone call that lasted less than one minute. Jenkins then told the CI and Detective McGivern to wait for delivery from someone driving a Dodge Ram pickup truck. Detective McGivern asked to use the restroom in order to look around the house for mail or other identifying information.
Detective McGivern was in the house two minutes before he returned to the porch. About that same time, an older Dodge Ram truck with white over gray primer pulled in front of the house, with the driver's side door closest to the house. Jenkins said "He's here," left the porch, and walked to speak with the driver, the only occupant of the truck. After Jenkins and the driver talked through the open driver's side window, Jenkins returned to the porch and asked Detective McGivern for the money, saying that the guy "didn't want to meet [McGivern] because [he] was white." Transcript at 167. Detective McGivern gave Jenkins two twenty-dollar bills, which had been photocopied beforehand. Jenkins then "walked up to the truck and handed the driver the IMPD buy money, at which time the driver reached out with his right hand, had his hand cupped, dropped his hand into Mr. Jenkins' hand, and Jenkins closed his hand and returned to the porch." Id. at 168.
When Jenkins returned to the porch, he gave Detective McGivern forty dollars' worth of crack cocaine. From the time the truck approached the house until Jenkins delivered the cocaine to the detective, Jenkins' hands were never in his pockets. And the person in the Dodge truck drove away.
As the CI and Detective McGivern left the Addison Street house, they watched the Dodge pickup. Through the Kel, Detective McGivern gave Detective Waters the physical description of the driver and the truck and said that the driver was the person who had delivered the cocaine. Detective Waters then gave Officer Jason Norman a description of the truck and its driver. Then he met with the CI and Detective McGivern at a pre-arranged nearby location to debrief and drop off the cocaine.
After receiving a description of the Dodge pickup, Officer Norman waited in a Kroger parking lot between Holmes Street and King Street. A short time later, he observed a pickup and driver pass by that matched the description from Detective Waters. Officer Norman followed the pickup and, after observing the truck cross the center line a couple of times, initiated a traffic stop. In the traffic stop, Officer Norman collected identification from the driver, Anthony Hollowell.
The State charged Hollowell and Jenkins with conspiracy to commit dealing in cocaine, as a Class B felony; dealing in cocaine, as a Class B felony; and possession of cocaine, as a Class D felony. Jenkins pleaded guilty as charged without a plea agreement prior to Hollowell's trial.
During voir dire at Hollowell's trial, Hollowell objected to the State's use of three peremptory challenges to African-American prospective jurors. In two of the instances,the State asserted race-neutral reasons for the strikes, and the trial court accepted those reasons. In the third case, the trial court excused the juror for cause. At the conclusion of voir dire, two African-Americans had been chosen as jurors and four had been struck.
Following the close of evidence and deliberations, the jury found Hollowell guilty of conspiracy to commit dealing in cocaine but not guilty of dealing in cocaine or possession of cocaine. At sentencing, the trial court found Hollowell's criminal history, including his past violation of probation and Community Corrections, to be an aggravator, but the court found no mitigators. The court sentenced Hollowell to sixteen years executed in the Department of Correction with credit for time served. Hollowell now appeals.
Hollowell contends that the evidence is insufficient to support his conviction for conspiracy to commit dealing in cocaine. When reviewing the claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the witnesses. Rhoton v. State, 938 N.E.2d 1240, 1246 (Ind. Ct. App. 2010), trans. denied. We look only to the probative evidence supporting the verdict and the reasonable inferences therein to determine whether a reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt. Id. If there is substantial evidence of probative value to support the conviction, it will not be set aside. Id.
To prove that Hollowell committed the offense of conspiracy to commit dealing in cocaine, as a Class B felony, the State was required to show beyond a reasonable doubtthat Hollowell, with the intent to commit the felony of dealing in cocaine, agreed with Jenkins to commit the felony of dealing in cocaine and that Jenkins performed an overt act in furtherance of the agreement, namely, delivered cocaine to the undercover officer. See Ind. Code §§ 35-41-5-2(a), (b). One commits the offense of dealing in cocaine if one knowingly delivers to an undercover police officer a controlled substance, here, cocaine. See Ind. Code § 35-48-4-1.
When establishing the existence of a conspiracy, the State is not required to prove the existence of a formal express agreement. Dickenson v. State, 835 N.E.2d 542, 552 (Ind. Ct. App. 2005), trans. denied. Rather, an agreement can be inferred from circumstantial evidence, which may include the overt acts of one of the parties in furtherance of the criminal act. Id. Relationship and association with the alleged coconspirator, standing alone, is insufficient to establish a conspiracy. Stokes v. State, 801 N.E.2d 1263, 1273 (Ind. Ct. App. 2004), trans. denied.
Hollowell first contends as follows:
Here the jury inferred Mr. Hollowell's intent to commit dealing in cocaine from the events described at trial involving co-defendant Jenkins' actions . . . . However, in [Hollowell's] case-in-chief, Mr. Jenkins offered credible testimony that specifically negated the "knowing delivery" element of the conspiracy charge linking Mr. Hollowell to the alleged endeavor.
Appellant's Brief at 8. In other words, Hollowell argues that the State did not prove his intent to commit dealing in cocaine.1 Hollowell's argument prevails only if we creditJenkins' testimony at trial. But, again, we may not reweigh the evidence. Rhoton, 938 N.E.2d at 1246. Thus, Hollowell's argument on this point must fail.
Hollowell next contends that the evidence is insufficient to support the conspiracy conviction because "it cannot be said with certainty that [Undercover Detective] McGivern saw [Hollowell] deliver cocaine to Mr. Jenkins." Appellant's Brief at 8-9. But the conspiracy charge alleged that Hollowell had agreed to commit the offense of dealing in cocaine and that Jenkins had taken an overt step in furtherance of that agreement, namely, the delivery of cocaine to Detective McGivern. The State was not required to show that Hollowell actually delivered cocaine to Jenkins in order to prove the conspiracy count as charged. Thus, this argument, too, must fail.
Hollowell also argues that his mere presence when Jenkins delivered the cocaine to Detective McGivern is insufficient to support Hollowell's conviction for conspiracy. Again, to prove conspiracy the State was only required to show, in relevant part, that Hollowell agreed to commit dealing in cocaine and that Jenkins took a step...
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