PYLE, Judge.
Following a jury trial, Guffey was convicted of: (1) Class A felony conspiracy to commit child molesting;
While incarcerated in the county jail, Tracy D. Guffey ("Guffey") made phone calls to his girlfriend. During these phone calls, which were recorded by the jail, Guffey encouraged his girlfriend to have sex with her twelve-year-old son so that she could make sure that he was not gay and told her to give her son alcohol prior to having sex so that he would be more comfortable. When the State moved to admit sixteen of these recorded jail telephone calls into evidence at trial, Guffey objected to fifteen of the calls.
On appeal, Guffey challenges the trial court's admission of these fifteen recordings, argues that his convictions and sentences violate the actual evidence test of the Indiana Double Jeopardy Clause, and contends that there is insufficient evidence to support his convictions.
Because the record before us reveals that the trial court entered judgment of convictions on Counts II and IV before merging those convictions and that it also entered a separate sentence on Guffey's habitual offender determination instead of enhancing one of his sentences, we remand to the trial court with instructions to correct these irregularities. We also conclude that the trial court did not abuse its discretion by admitting the fifteen recorded jail phone calls because they were relevant to show Guffey's plan and preparation as they related to his conspiracy to commit child molesting charge. Additionally, as the State concedes, the evidence shows a reasonable possibility that Guffey's remaining convictions on Counts I, III, and V were based on the same actual evidence, we remand to the trial court to vacate Counts III and V and instruct that trial court that it may resentence Guffey on Count I. Lastly, we conclude that there was sufficient evidence to support Guffey's Class A felony conspiracy to commit child molesting as charged in Count I.
We affirm in part, reverse in part, and remand.
In the Fall of 2012, Guffey was incarcerated in the Fayette County Jail. At that time, Guffey had a girlfriend, Amanda Mize ("Mize"). Prior to his incarceration, Guffey lived with Mize and her twelve-year-old son, C.M., who had a learning disability, and her seven-year-old daughter, B.R.
On October 4, 2012, Guffey called Mize from the jail. The jail has a system to record the inmates' telephone calls. While Guffey and Mize were talking, Fayette County Sheriff's Deputy Clint Brown ("Deputy Brown") monitored their conversation. Two other law enforcement officers also listened to the phone conversation as it occurred. Deputy Brown and the officers heard Guffey and Mize discussing a plan for Mize to have sex with
Thereafter, Deputy Brown went back to the jail's recording system and listened to the other phone calls that Guffey had made to Mize. He discovered fifteen additional phone calls that Guffey had made between September 9, 2012 and October 2, 2012, during which Guffey tried to talk Mize into having sex with her son to ensure that he was not gay.
During Guffey's conversations and attempts to get Mize to go through with the plan, he encouraged Mize to let C.M. watch her masturbate while Guffey was on the phone with her. He also told her that she should give alcohol to C.M. so that he would know what it tasted like and so that he would talk to Mize about drinking when he got older. During one of these recorded conversations, Guffey mentioned that he had previously shown the pornographic movie to C.M. and had given him alcohol. Guffey eventually was able to get Mize to show C.M. the pornographic movie,
The State charged Guffey with: Count I, Class A felony conspiracy to commit child molesting; Count II, Class A felony aiding, inducing, or causing an attempted child molesting; Count III, Class C felony conspiracy to commit child molesting; Count IV, Class C felony aiding, inducing, or causing an attempted child molesting; and Count V, Class B felony aiding, inducing, or causing an attempted incest. The State also alleged that Guffey was an habitual offender.
The trial court held a pretrial hearing on September 5, 2014. During that hearing, Guffey argued that the State should be precluded, based on Evidence Rule 404(b), from introducing evidence of his recorded jail telephone conversations with Mize that occurred prior to October 4, 2012, contending that the content of those recorded calls were not "parallel" to his charges and that the recordings contained uncharged misconduct by Guffey. (Pretrial Hrg. Tr. 7).
On September 8 and 9, 2014, the trial court held a jury trial. During the trial, Mize, who had already been convicted for her part of the conspiracy at issue,
When the State moved to introduce the recorded jail telephone conversations, State's Exhibits 1-16, Guffey's counsel approached the bench to raise his objection. The trial court then stated that Guffey's objection was the "same" as he had made during the pretrial hearing. (Tr. 60). Thus, Guffey's objection was specifically to State's Exhibits 1-15—the recorded conversations that occurred prior to October 4, 2012—and was based on Evidence Rule 404(b) and prejudice. The trial court overruled Guffey's objection, explaining that the recordings were admissible because they were introduced to show plan and preparation and were not prejudicial.
The jury found Guffey guilty as charged and then determined that he was an habitual offender. The record on appeal indicates that the trial court, prior to sentencing, entered judgment of conviction on all five counts. (See App. 13, 159-62; Sent. Tr. 4). At the subsequent sentencing hearing, the trial court merged Count II into Count I and Count IV into Count III and imposed an aggregate eighty-five (85) year sentence.
Guffey argues that: (1) the trial court abused its discretion by admitting fifteen recordings of his telephone conversations with Mize; (2) his convictions and sentences violate the prohibition against double jeopardy; and (3) there is insufficient evidence to support his convictions. We will address each argument in turn.
Guffey argues that the trial court abused its discretion by admitting State's Exhibits 1-15. These exhibits contained fifteen of Guffey's recorded jail telephone conversations with Mize (and, at times, C.M.) wherein Guffey encouraged Mize to have sex with C.M. Guffey asserts that the recordings contained "substantial evidence of uncharged misconduct by Guffey, including improprieties with respect to C.M. and prior bad acts unrelated to any sex offense." (Guffey's Br. 7). He contends that such evidence should have been excluded pursuant to Indiana Evidence Rule 404(b).
The admission and exclusion of evidence falls within the sound discretion of the trial court, and we review the admission of evidence only for an abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind.2002). An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before it. Conley v. State, 972 N.E.2d 864, 871 (Ind.2012), reh'g denied.
Indiana Evidence Rule 404(b) provides that:
(Emphasis added).
"Rule 404(b) is designed to prevent the jury from making the forbidden inference that prior wrongful conduct suggests present guilt." Halliburton v. State, 1 N.E.3d 670, 681 (Ind.2013) (citation and internal quotation marks omitted). See also Hicks v. State, 690 N.E.2d 215, 218 (Ind.1997) (explaining that Evidence Rule 404(b) is "designed to prevent the jury from assessing a defendant's present guilt on the basis of his past propensities"). "The paradigm of such inadmissible evidence is a crime committed on another day in another place, evidence whose only apparent purpose is to prove the defendant is a person who commits crimes." Swanson v. State, 666 N.E.2d 397, 398 (Ind.1996), reh'g denied.
In determining whether to admit evidence of specific acts under Rule 404(b), the trial court is required to: (1) determine whether the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant's propensity to commit the charged act; (2) determine that the proponent has sufficient proof that the person who allegedly
Guffey asserts that State's Exhibits 1-15 were inadmissible under Indiana Evidence Rule 404(b), contending that they were "offered solely to show [his] bad character and his propensity [to] act in conformance with that bad character." (Guffey's Br. 7-8).
The State argues that the recorded jail phone conversations were admissible under Evidence Rule 404(b)(2) because the "conversations [we]re relevant to the instant case because they show[ed] [Guffey's] plan and preparation for the molestation of twelve-year-old C.M." and showed his "manipulative efforts to break down his co-conspirator's resistance to the plan." (State's Br. 10-11). The State contends that the conversations in the recordings were "very relevant" because they reveal how Guffey "step by step, managed to convince Mize to agree to an act that she initially characterized as `weird' and with which she was not comfortable[.]" (State's Br. 16). Additionally, the State asserts that the recorded conversations were "probative evidence" because they showed that Guffey "groomed both Mize and C.M. for the sexual act by introducing different sexual elements into the conversation and having Mize disrobe and perform sexual acts in the presence of her children." (State's Br. 16). Alternatively, the State argues that any error in the admission of the recordings was harmless error because Mize testified that she and Guffey had agreed that she would have sex with C.M. and would give him vodka and orange juice, that she went to a liquor store and bought the alcohol, and that she would have carried out the plan if she had not been arrested.
We agree with the State that the trial court did not abuse its discretion by admitting the jail telephone recordings into evidence. First, the recorded conversations in State's Exhibits 1-15 were relevant to a matter other than Guffey's
We have previously held that a defendant's planning and grooming were relevant and established a valid basis for the admission of prior acts under Rule 404(b). See Piercefield v. State, 877 N.E.2d 1213, 1216 (Ind.Ct.App.2007), trans. denied. In Piercefield, we explained that "`[g]rooming' is `the process of cultivating trust with a victim and gradually introducing sexual behaviors until reaching the point' where it is possible to perpetrate a sex crime against the victim." Id. (quoting U.S. v. Johnson, 132 F.3d 1279, 1283 n. 2 (9th Cir.1997)). In that case, we found that the defendant's prior acts of having his stepchildren massage him was relevant under Rule 404(b) to show the defendant's preparation, plan, and grooming because he was familiarizing the children to touching his body. Id. at 1216. Here, Guffey's acts of encouraging C.M.'s exposure to alcohol and sexually-tinged content and acts were done to prepare C.M. to be more comfortable with the eventual sexual act with Mize that Guffey and Mize had planned for him. Additionally, the recorded jail conversations, which occurred close in time to the final phone conversation on October 4, 2012, "complete[d] the story of the crime" and were relevant to a matter at issue other than the defendant's propensity to commit the charged act. See Wages v. State, 863 N.E.2d 408, 411 (Ind. Ct.App.2007) (explaining that evidence of happenings near in time and place that complete the story of the crime is admissible even if it tends to establish the commission of other crimes not included among those being prosecuted).
In regard to the second consideration when reviewing the admission of evidence under Rule 404(b), we note that the State had sufficient proof that Guffey had committed the act or offense as charged because Mize testified that she and Guffey had an agreement that she would have sex with her son, and she testified that she purchased vodka and juice in furtherance of that agreement. Lastly, when balancing the probative value of the evidence against its prejudicial effect pursuant to Indiana Evidence Rule 403, we conclude that any prejudice that may have possibly arisen from the recordings did not substantially outweigh the probative value of the evidence. Thus, the trial court did not abuse its discretion by admitting State's Exhibits 1-15 into evidence.
Guffey also argues that his convictions violate the prohibition against double jeopardy. Specifically, he asserts that "[e]ntry of judgment of conviction as to four of the five counts violated Art. I,
Guffey acknowledges that the trial court merged Count II into Count I and Count IV into Count III. He, however, argues that the trial court's merger of some of the convictions was "improper and inadequate to resolve the double jeopardy issues." (Guffey's Br. 16). He requests that "this Court reverse on double jeopardy grounds the trial court's entry of judgment of conviction as to all counts other than Count I, Conspiracy to Commit Child Molesting, a Class A felony[.]" (Guffey's Br. 21-22). Because we have already remanded this case for the trial court to vacate the judgment of convictions on Count II and Count IV, see footnote 14, we need not further address this argument.
Thus, here, for purposes of addressing Guffey's double jeopardy argument, we need only look at whether there is a double jeopardy violation in regard to Counts I, III, and V. Before addressing Guffey's arguments, we note that the Indiana Double Jeopardy Clause provides, in relevant part, that "No person shall be put in jeopardy twice for the same offense." Ind. Const. art. I, § 14. "Indiana's Double Jeopardy Clause was intended to prevent the State from being able to proceed against a person twice for the same criminal transgression." Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). Consequently, two or more offenses are the "same offense" and violate the Indiana Double Jeopardy Clause if, "with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense." Id.
Guffey argues that the Double Jeopardy Clause was violated under the actual evidence test. A double jeopardy violation occurs under the actual evidence test if there is "a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense." Id. at 53. "[A] `reasonable possibility' that the jury used the same facts to reach two convictions requires substantially more than a logical possibility." Lee v. State, 892 N.E.2d 1231, 1236 (Ind.2008). "Rather, `reasonable possibility' turns on a practical assessment of whether the jury may have latched on to exactly the same facts for both convictions." Id. See also Griffin v. State, 717 N.E.2d 73, 89 (Ind.1999) ("To establish that two offenses are the same offense under the actual evidence test, the possibility must be reasonable, not speculative or remote."), cert. denied. In applying the actual evidence test, this Court must identify the essential elements of each offense and evaluate the evidence from the trier of fact's perspective. Spivey v. State, 761 N.E.2d 831, 832 (Ind. 2002). "In determining the facts used by the fact-finder, it is appropriate to consider the charging information, jury instructions, and arguments of counsel." Lee, 892 N.E.2d at 1234 (citing Spivey, 761 N.E.2d at 832 and Richardson, 717 N.E.2d at 54 n. 48).
Here, the State charged Guffey, in Count I, with Class A felony conspiracy to commit child molesting, which required the State to prove beyond a reasonable doubt that Guffey with intent to commit the felony of child molesting agreed with Mize for her to perform or submit to sexual intercourse or deviate sexual conduct with
The State properly concedes that Guffey's "convictions on Counts III and V violate[d] [Guffey's] double jeopardy protections[]" because "Counts I through V were all based on the same act[.]" (State's Br. 19). Accordingly, we remand to the trial court to vacate Counts III and V. The State requests that, when remanding this case, we instruct the trial court that it may resentence Guffey to a higher sentence on the Class A felony conviction in Count I "because it appears that the trial court intended to impose on [Guffey] a substantial penalty for his offenses[.]" (State's Br. 20). Guffey, however, argues that the trial court should not be allowed to impose a harsher sentence on remand.
We have held that, on resentencing after the reversal of a conviction in a multi-count proceeding, the trial court has "flexibility upon remand, including the ability to increase sentences for individual convictions without giving rise to a presumption of vindictive sentencing, so long as the aggregate sentence is no longer than originally imposed." Sanjari v. State, 981 N.E.2d 578, 583 (Ind.Ct.App. 2013), trans. denied. In so holding, we explained that "a trial court is likely to view individual sentences in a multi-count proceeding as part of an overall plan, a plan that can be overthrown if one or more of the convictions is reversed or reduced in degree." Id. (relying on U.S. v. Shue, 825 F.2d 1111, 1114 (7th Cir.1987), cert. denied; U.S. v. Pimienta-Redondo, 874 F.2d 9, 14 (1st Cir.1989), cert. denied). Given the circumstances of this case, we remand to the trial court to vacate Counts III and V, and we instruct the trial court that it may resentence Guffey on Count I.
Guffey argues that the evidence was insufficient to support his conviction
Drane v. State, 867 N.E.2d 144, 146-47 (Ind.2007) (internal quotation marks and citations omitted) (emphasis in original).
To convict Guffey of Class A felony conspiracy to commit child molesting as charged in Count I, the State was required to prove beyond a reasonable doubt that Guffey, "with intent to commit the felony" of child molesting, agreed with Mize, who was at least twenty-one years old, to perform or submit to "sexual intercourse or deviate sexual conduct" with C.M., a child under fourteen years of age, and that Mize "performed an overt act in furtherance of the agreement" by "obtaining an alcoholic beverage, vodka, and a mixer, orange juice, to provide to the child to facilitate the offense[.]" I.C. §§ 35-42-4-3(b) (2012); 35-41-5-2 (2012); (App. 20).
Guffey argues that the State failed to prove beyond a reasonable doubt that there was: (1) the existence of an agreement between Mize and him to commit the Class A felony child molesting offense; and (2) an overt act in furtherance of the agreement.
"In proving the agreement element, the State is not required to show an express formal agreement, and proof of the conspiracy may rest entirely on circumstantial evidence." Fry v. State, 748 N.E.2d 369, 374 (Ind.2001). In regard to this element, Guffey acknowledges that Mize testified at trial that she and Guffey had reached an agreement. He contends, however, that there was evidence that contradicted her trial testimony. Specifically, he argues that the recorded jail telephone conversations show that Mize "repeatedly objected to Guffey's suggestion that she engage in sexual contact with C.M." (Guffey's Br. 24). We find Guffey's reliance on these recordings, which include the recordings in State's Exhibits 1-15, to be disingenuous as he previously argued in this appeal that these recordings should have been excluded from evidence. Nevertheless, although Mize expressed some reluctance to engage in a sexual act with her son, the evidence shows that she, upon Guffey's encouragement, agreed to do so. Moreover, Mize expressly testified that she and Guffey did enter into an agreement. Thus, we reject Guffey's argument as it is merely a request to reweigh the evidence, which we will not do. See Drane, 867 N.E.2d at 146.
In regard to the overt act element, Guffey contends that the evidence that Mize purchased the vodka and orange
Guffey's argument is nothing more than an invitation for this Court to reweigh the evidence and judge the credibility of the witness, which we decline to do. See Drane, 867 N.E.2d at 146. Guffey made this same argument to the jury during closing argument. The jury rejected his argument and believed Mize's testimony regarding her purpose for purchasing the alcohol, and we decline to impinge upon the jury's credibility determination and weighing of the evidence. Because there is probative evidence from which the jury could have found Guffey guilty beyond a reasonable doubt of Class A felony conspiracy to commit child molesting as charged in Count I, we affirm his conviction.
Affirmed in part, reversed in part, and remanded.
CRONE, J., and BROWN, J., concur.
During the sentencing hearing, the trial court stated that it was imposing a separate thirty (30) year sentence for Guffey's habitual offender determination. Additionally, the sentencing order, abstract of judgment, and chronological case summary indicate that the trial court imposed a separate thirty (30) year sentence for Guffey's habitual offender finding and ordered that it be served consecutively to Counts I, III, and V.
In regard to the trial court's act of merging Count II and Count IV, which were convictions for which the trial court had already entered a judgment of conviction, we note that "[a] trial court's act of merging, without also vacating the conviction, is not sufficient to cure a double jeopardy violation" and that such a violation cannot be remedied by the "practical effect" of merging after a conviction has been entered. Gregory v. State, 885 N.E.2d 697, 703 (Ind.Ct.App.2008), trans. denied. See also Green v. State, 856 N.E.2d 703, 704 (Ind.2006) (explaining that "a merged offense for which a defendant is found guilty, but on which there is neither a judgment nor a sentence, is `unproblematic' as far as double jeopardy is concerned"). Because the record reveals that the trial court entered judgment of conviction on Counts II and IV prior to merging these convictions, we remand this cause to the trial court with instructions to vacate Guffey's judgment of convictions on Count II and Count IV.
We also remand this cause for the trial court to correct its sentencing as it relates to the habitual offender enhancement. It is well settled that an "habitual offender finding does not constitute a separate crime nor does it result in a separate sentence, rather it results in a sentence enhancement imposed upon the conviction of a subsequent felony." Hendrix v. State, 759 N.E.2d 1045, 1048 (Ind.2001) (citing Greer v. State, 680 N.E.2d 526, 527 (Ind.1997); Pinkston v. State, 436 N.E.2d 306, 307-08 (Ind.1982)). Because the trial court entered a separate sentence on Guffey's habitual offender determination, we remand to the trial court with instructions to correct the sentencing order, abstract of judgment, and chronological case summary to reflect that the thirty (30) year habitual offender enhancement serves as an enhancement of Guffey's Class A felony sentence in Count I.