Jeffrey A. Booth v. State of Indiana ( 2013 )


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  • Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be
    regarded as precedent or cited before
    FILED
    any court except for the purpose of                          Jan 29 2013, 9:05 am
    establishing the defense of res judicata,
    collateral estoppel, or the law of the case.                        CLERK
    of the supreme court,
    court of appeals and
    tax court
    ATTORNEYS FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:
    WILLIAM S. FRANKEL, IV                             GREGORY F. ZOELLER
    DAVID P. FRIEDRICH                                 Attorney General of Indiana
    Terre Haute, Indiana
    RICHARD C. WEBSTER
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    JEFFREY A. BOOTH,                                  )
    )
    Appellant-Defendant,                        )
    )
    vs.                                 )       No. 84A01-1203-CR-118
    )
    STATE OF INDIANA,                                  )
    )
    Appellee-Plaintiff.                         )
    APPEAL FROM THE VIGO SUPERIOR COURT
    The Honorable David R. Bolk, Judge
    Cause No. 84D03-1103-FB-782
    January 29, 2013
    MEMORANDUM DECISION - NOT FOR PUBLICATION
    PYLE, Judge
    STATEMENT OF THE CASE
    Jeffrey A. Booth (“Booth”) appeals his conviction, following a jury trial, for Class
    B felony dealing in methamphetamine1 and Class D felony possession of
    methamphetamine.2
    We affirm.
    ISSUE
    Whether sufficient evidence supports Booth’s convictions.
    FACTS
    On March 9, 2011, around 12:30 a.m., Terre Haute Police Officer Gregory
    Mossbarger (“Officer Mossbarger”) and Officer John Perillo (“Officer Perillo”) were
    dispatched to 1425 South 6th Street in Terre Haute to investigate a possible
    methamphetamine lab. After the officers approached the garage from the alley and
    smelled an odor that they knew was associated with a methamphetamine lab, they called
    for further assistance.
    Shortly thereafter, Sergeant Harold Seifers (“Sergeant Seifers”) arrived at the
    scene.        As he approached from the alley, Sergeant Seifers also detected the
    methamphetamine-related odor, which got stronger as he neared the garage. As the
    officers stood outside the garage, they heard music and people talking inside the garage
    and saw light from the cracks around the garage door.
    1
    
    Ind. Code § 35-48-4-1
    .1(a).
    2
    I.C. § 35-48-4-6.1.
    2
    The side garage door then opened, releasing a “real strong” odor from the garage,
    and Booth walked out with a cigarette and a lighter in his hand. (Tr. 235). When Booth
    saw the officers, he appeared “real surprised” and then “shut the door behind him real
    fast.” (Tr. 226). Sergeant Seifers grabbed Booth, stopped him from lighting his cigarette
    and asked him why he was there and if anyone else was inside the garage. Booth
    responded that he was there working on a car and that there was someone else in there.
    Sergeant Seifers had Booth knock on the door, and Robert Fennell (“Fennell”) opened the
    door and walked out. The officers then took Booth and Fennell into custody.
    Sergeant Seifers and Officer Perillo then went inside the garage, where the “very,
    very, very strong” odor from inside made their eyes burn and required them to hold their
    breath.      (Tr. 242).    The officers saw items associated with methamphetamine
    manufacturing and, fearing an explosion, opened the main garage door to air out the
    space. Sergeant Seifers asked Booth and Fennell who had the key to the garage, and
    Booth responded that he did. Sergeant Seifers retrieved the key from Booth’s pocket,
    opened the garage door, and called the Drug Task Force to report the methamphetamine
    lab.
    Detective Denzil Lewis (“Detective Lewis”) and Detective Jason Parker
    (“Detective Parker”) of the Drug Task Force then arrived at the scene and briefly walked
    through the garage. Detective Parker then called Indiana State Police Trooper Jason
    Kempf (“Trooper Kempf”) to process the methamphetamine lab because “it was a lot
    larger than [the detectives] could handle.” (Tr. 341).
    3
    Trooper Kempf arrived around 3:00 a.m. to process the methamphetamine lab in
    the garage. When he arrived, he could “still smell the odor of anhydrous ammonia” used
    in the methamphetamine manufacturing process. (Tr. 259). There was a car in the
    garage, but there were no fluids on the floor to indicate that someone had worked on a
    car.   Instead, Trooper Kempf observed items used in the various stages of
    methamphetamine production, including the presence of: (1) anhydrous ammonia that
    was in a Coleman fuel container; (2) “pill dough” or ground up pseudoephedrine pills that
    were soaking in the anhydrous ammonia to extract the pseudoephedrine to convert to
    methamphetamine, (Tr. 267); (3) a wooden spoon or “stir stick” to stir the pill dough, (Tr.
    307); (4) a Mountain Dew bottle with a tube sticking out of it that was used as a
    hydrochloric (“HCL”) gas generator and that was continuing to produce HCL gas; (5) salt
    and Liquid Fire to use in the HCL generator; (6) a pitcher containing methamphetamine
    and “waiting for the stage of being gassed off” in the HCL generator, (Tr. 275); and (7) a
    pitcher with a coffee filter containing a finished methamphetamine product. Trooper
    Kempf also observed a Crock pot in the garage.
    Detective Lewis obtained a written consent to search the garage from Booth.
    Detective Lewis also interviewed Booth at the scene and made an audio recording of the
    interview. Booth told Detective Lewis that he did not live there but that he had gotten the
    key to the garage from Jeremy Gibson (“Gibson”) so he could work on Gibson’s car.
    Booth said that Gibson wanted him to remove the old radiator and old sway bar arm and
    replace them with a new radiator and new sway bar arm. Booth told Detective Lewis that
    he arrived at the garage at 7:30 p.m. and that Fennell arrived at 8:00 p.m. In response to
    4
    the detective’s question of what Fennell did when he arrived, Booth responded that
    Fennell “put the pill trash in a pitcher[,]” (State’s Ex. 1; Tr. 351); “poured some
    Coleman’s on it and then put it in the Crock pot[,]” (State’s Ex. 1; Tr. 353); turned on the
    Crock pot; and then left for about an hour. (State’s Ex. 1; Tr. 351). Detective Lewis
    asked Booth if it smelled when Fennel did that, and Booth stated that it smelled like
    “[a]nhydrous.” (State’s Ex. 1; Tr. 352). When the detective asked Booth how the HCL
    generator got to the garage, Booth appeared confused by the term generator. Detective
    Lewis rephrased the question to ask about the device that was used with “[t]he drain
    cleaner and the salt . . . pour[ed] . . . in there” and that was used to “smoke the dope,” and
    Booth responded, “Oh, um, that’s, he usually has that in there under that bench.” (State’s
    Ex. 1; Tr. 354). Booth stated that upon Fennell’s return to the garage, Fennell took the
    pitcher out of the Crock pot and then took another pitcher and “ran it through a filter.”
    (State’s Ex. 1; Tr. 355). When asked if Fennell “g[o]t any product, Booth indicated that
    it “looked like he did.” (State’s Ex. 1; Tr. 355). Finally, Booth admitted to Detective
    Lewis that he and Fennell had smoked some methamphetamine while they were in the
    garage but stated that the methamphetamine “was some that was already done.” (State’s
    Ex. 1; Tr. 356).
    The State charged Booth with: Count 1, Class B felony dealing in
    methamphetamine (by manufacturing); Count 2, Class D felony possession of chemical
    reagents or precursors with intent to manufacture a controlled substance; and Count 3,
    Class D felony possession of methamphetamine.
    5
    On February 7-8, 2012, the trial court held a jury trial. With regard to the dealing
    charge, the State proceeded under the theory that Booth either manufactured the
    methamphetamine or aided Fennell in the manufacturing process. The State tendered,
    without objection from Booth, an instruction on accomplice liability for the dealing in
    methamphetamine charge. The trial court accepted the instruction and instructed the jury
    that it could find Booth guilty of dealing in methamphetamine if it found that he aided
    Fennell to commit the offense. The jury found Booth guilty of Count 1 and 3 but not
    guilty of Count 2. The trial court imposed a fourteen (14) year sentence for Booth’s
    dealing conviction and a two (2) year sentence for his possession conviction. The trial
    court ordered that the sentences be served concurrently and executed at the Department
    of Correction.
    DECISION
    Booth argues that the evidence was insufficient to support his convictions for: (a)
    dealing in methamphetamine; and (b) possession of methamphetamine.
    When reviewing the sufficiency of the evidence to support a conviction,
    appellate courts must consider only the probative evidence and reasonable
    inferences supporting the verdict. It is the fact-finder’s role, not that of
    appellate courts, to assess witness credibility and weigh the evidence to
    determine whether it is sufficient to support a conviction. To preserve this
    structure, when appellate courts are confronted with conflicting evidence,
    they must consider it most favorably to the trial court’s ruling. Appellate
    courts affirm the conviction unless no reasonable fact-finder could find the
    elements of the crime proven beyond a reasonable doubt. It is therefore not
    necessary that the evidence overcome every reasonable hypothesis of
    innocence. The evidence is sufficient if an inference may reasonably be
    drawn from it to support the verdict.
    6
    Drane v. State, 
    867 N.E.2d 144
    , 146-47 (Ind. 2007) (internal quotation marks and
    citations omitted) (emphasis in original).
    A. Dealing in Methamphetamine
    Booth first argues that the evidence was insufficient to support his conviction for
    dealing in methamphetamine. To convict Booth of dealing in methamphetamine as
    charged, the State was required to prove beyond a reasonable doubt that Booth
    “knowingly manufacture[d] methamphetamine.”        (App. 10). See also 
    Ind. Code § 35
    –
    48–4–1.1(a) (“A person who . . . knowingly . . . manufactures . . . methamphetamine,
    pure or adulterated . . . commits dealing in methamphetamine, a Class B felony[.]”).
    “Manufacture” is defined as:
    the production, preparation, propagation, compounding, conversion, or
    processing of a controlled substance, either directly or indirectly by
    extraction from substances of natural origin, independently by means of
    chemical synthesis, or by a combination of extraction and chemical
    synthesis, and includes any packaging or repackaging of the substance or
    labeling or relabeling of its container.
    
    Ind. Code § 35-48-1-18
    (1).
    Booth acknowledges that methamphetamine was manufactured in the garage and
    that he was in the garage but argues that the evidence was insufficient to show that he
    knowingly manufactured it because none of the officers saw him manufacture the
    methamphetamine.       He contends that Fennell was the only person involved in
    manufacturing the methamphetamine and that he was merely present in the garage
    working on a car and had no involvement in the manufacturing process.
    7
    Here, the trial court instructed the jury, without objection from Booth, that he
    could be found guilty of dealing methamphetamine under a theory of accomplice
    liability. The accomplice liability statute provides that “[a] person who knowingly or
    intentionally aids, induces, or causes another person to commit an offense commits that
    offense . . . .” 
    Ind. Code § 35
    –41–2–4. In determining whether a person aided another in
    the commission of a crime, we consider factors such as: (1) presence at the scene of the
    crime; (2) companionship with another at the scene of the crime; (3) failure to oppose
    commission of the crime; and (4) course of conduct before, during, and after occurrence
    of the crime. Garland v. State, 
    788 N.E.2d 425
    , 431 (Ind. 2003).
    Here, the evidence reveals that, from 7:30 p.m. to around 12:30 a.m., Booth was
    present in the garage where methamphetamine was clearly being manufactured. When
    Booth walked out of the garage and saw police, he immediately shut the door behind him.
    Booth claimed to Detective Lewis that he was in the garage only to work on a car. While
    the evidence revealed that Booth’s hands were dirty and there were tools and a car in the
    garage, officers testified that the tools were not lying about and there were no fluids on
    the garage floor. Instead, the evidence shows that Booth was aware that Fennell was
    engaged in the process of manufacturing methamphetamine. Indeed, Booth’s interview
    with Detective Lewis reveals that he was aware of the stages of the manufacturing
    process.   Furthermore, the evidence also reveals that Booth did not oppose the
    manufacturing of the methamphetamine. To be sure, from the evidence presented, the
    jury could have inferred that Booth assisted with the mixing of the pill dough. Booth
    claimed that Fennell put the “pill trash” in a Crock pot and then left the garage for one
    8
    hour. (State’s Ex. 1; Tr. 351). However, police officers testified that, at that early stage
    of manufacturing, the pill dough has to be stirred or it will stick and that it cannot be left
    unattended. They also testified that the pill dough in the garage did not show signs of
    being unattended. Additionally, Booth admitted that he smoked methamphetamine with
    Fennell while he was in the garage.
    Booth’s argument that he was merely working on his car and was “in the wrong
    place at the wrong time” is nothing more than an invitation to reweigh the evidence,
    which we will not do. See Drane, 867 N.E.2d at 146. Because there was probative
    evidence from which the jury could have found Booth guilty beyond a reasonable doubt
    of Class B felony dealing in methamphetamine, we affirm his conviction.
    B. Possession of Methamphetamine
    Booth also argues that the evidence was insufficient to support his conviction for
    possession of methamphetamine. To convict Booth of possession of methamphetamine
    as charged, the State was required to prove beyond a reasonable doubt that Booth
    “knowingly possess[ed] methamphetamine.” (App. 10). See also 
    Ind. Code § 35
    –48–4-
    6.1(a) (“A person who, without a valid prescription . . . , knowingly . . . possesses
    methamphetamine (pure or adulterated) commits possession of methamphetamine, a
    Class D felony[.]”).
    Booth was not in actual possession of the methamphetamine found in the garage;
    thus, the State was required to prove that Booth had constructive possession of the
    methamphetamine. Evidence of constructive possession is sufficient where the State
    9
    proves that the defendant had intent and capability to maintain dominion and control over
    the contraband. Hardister v. State, 
    849 N.E.2d 563
    , 573 (Ind. 2006).
    The intent element of constructive possession is shown if the State demonstrates
    the defendant’s knowledge of the presence of the contraband. Goliday v. State, 
    708 N.E.2d 4
    , 6 (Ind. 1999). A defendant’s knowledge may be inferred from either the
    exclusive dominion and control over the premise containing the contraband or, if the
    control is non-exclusive, evidence of additional circumstances pointing to the defendant’s
    knowledge of the presence of the contraband. 
    Id.
     These additional circumstances may
    include: (1) incriminating statements by the defendant; (2) attempted flight or furtive
    gestures; (3) a drug manufacturing setting; (4) proximity of the defendant to the drugs;
    (5) drugs in plain view; and (6) location of the drugs in close proximity to items owned
    by the defendant. Hardister, 849 N.E.2d at 574. The capability element of constructive
    possession is met when the State shows that the defendant is able to reduce the controlled
    substance to the defendant’s personal possession.      Goliday, 708 N.E.2d at 6.      For
    example, proof of a possessory interest in the premises where illegal drugs are found is
    sufficient to show capability to maintain dominion and control over the contraband. Id.
    Here, Booth does not dispute that the garage was a drug manufacturing setting for
    manufacturing methamphetamine. Indeed, the evidence reveals that the garage had the
    very strong odor associated with the manufacturing of methamphetamine emanating from
    it. Additionally, the evidence indicates that the garage contained the various stages of
    methamphetamine manufacturing. Booth was present for five hours in the garage where
    methamphetamine was manufactured. He made a furtive gesture of trying to quickly
    10
    close the garage door when he saw the police standing outside the garage door. The
    evidence also reveals that the products used to make methamphetamine, as well as
    finished methamphetamine, were in plain view and in close proximity to Booth.
    Furthermore, Booth’s statements to Detective Lewis were incriminating because they
    revealed that Booth was aware that methamphetamine was being manufactured and
    suggest that he was aware of the various steps or procedures for manufacturing
    methamphetamine. Booth also made incriminating statements by admitting that he had
    smoked methamphetamine while in the garage.          Given the evidence presented, we
    conclude the State presented evidence of additional circumstances sufficient to prove that
    Booth had the intent to maintain dominion and control over the contraband.
    The State also presented sufficient evidence on the capability element. Although
    Booth did not live at the house where the garage was located, he (and not Fennell)
    possessed the key to the garage. Additionally, given the close proximity of the drugs in
    the garage to Booth and his furtive gesture of quickly closing the garage door when he
    saw police, we conclude the State presented sufficient evidence to show that he was able
    to reduce the drugs to his personal possession. See, e.g., Goliday, 708 N.E.2d at 6
    (evidence was sufficient to show that the defendant, who had a key to the trunk where the
    drugs were located, had the capability to maintain dominion and control over the drugs).
    The evidence is sufficient to show that Booth had the intent and capability to
    maintain dominion and control over the methamphetamine. Because there was probative
    evidence from which the jury could have found Booth constructively possessed the
    11
    methamphetamine, we affirm his conviction for Class D felony possession of
    methamphetamine.
    Affirmed.
    ROBB, C.J., and MAY, J., concur.
    12
    

Document Info

Docket Number: 84A01-1203-CR-118

Filed Date: 1/29/2013

Precedential Status: Non-Precedential

Modified Date: 4/18/2021