Freddie Boggess v. State of Indiana ( 2012 )

Pursuant to Ind.Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
Aug 21 2012, 9:11 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
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
TIMOTHY J. LEMON GREGORY F. ZOELLER
Knox, Indiana Attorney General of Indiana
RYAN D. JOHANNINGSMEIER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
FREDDIE BOGGESS, )
)
Appellant-Defendant, )
)
vs. ) No. 75A03-1112-CR-581
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE STARKE CIRCUIT COURT
The Honorable Kim Hall, Judge
Cause No. 75C01-1107-FB-28
August 21, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
CASE SUMMARY
Freddie Boggess was convicted of dealing in methamphetamine, as a Class B
felony; possession of chemical reagents or precursors with intent to manufacture, as a
Class D felony; driving while suspended, as a Class A misdemeanor; and false informing,
as a Class B misdemeanor, following a jury trial. He appeals his convictions for dealing
in methamphetamine and possession of chemical reagents or precursors with intent to
manufacture, raising the following issues for review:
1. Whether the evidence is sufficient to support his conviction for
dealing in methamphetamine; and
2. Whether his convictions for dealing in methamphetamine and
possession of chemical reagents or precursors with intent to
manufacture violate double jeopardy principles.
We affirm.
FACTS AND PROCEDURAL HISTORY
On the evening of July 7, 2011, Boggess was driving his mother’s Dodge Caravan
on State Road 8 in Starke County. Indiana State Police Master Trooper Douglas Parker
saw that one of the minivan’s headlights was unlit and initiated a traffic stop. When
Trooper Parker asked Boggess for identification, Boggess stated that he did not have his
license with him and identified himself as David Boggess. Trooper Parker checked that
name in a database and determined that David Boggess was licensed to drive in Indiana
with restrictions, and the vehicle registration for the minivan reflected its ownership by
Dolores Boggess, Boggess’ mother. Trooper Parker issued Boggess a warning in David
Boggess’ name concerning the unlit headlight and permitted Boggess to leave the scene.
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On the afternoon of July 8, 2011, Boggess was again driving the minivan in Starke
County when he passed a traffic stop being conducted by Starke County Sheriff’s Deputy
Adam Gray and Detective Robert Olejniczak. Detective Olejniczak saw Boggess drive
past, recognized Boggess, and knew from prior experience that Boggess’ driving
privileges were suspended. Detective Olejniczak therefore asked Deputy Gray to stop
Boggess’ vehicle. Deputy Gray reentered his police car and initiated a traffic stop.
After stopping the minivan, Deputy Gray asked Boggess for his name and
identification, and Boggess again identified himself as David Boggess. A short time later
Detective Olejniczak arrived to assist Deputy Gray and stated that he knew Boggess as
Freddie Boggess from prior encounters. Boggess continued to insist that he was David
Boggess. To prove his asserted identity, he produced the written warning Trooper Parker
had issued him the prior day. But the detective insisted that he could identify Boggess
based upon certain tattoos. Deputy Gray requested information from dispatch about
Freddie Boggess’ physical characteristics. Boggess’ visible tattoos matched the
description for Freddie Boggess. Detective Olejniczak arrested Boggess and transported
him to the Starke County Jail. A subsequent physical search at the jail confirmed
Boggess’ identity to be Freddie Boggess based upon numerous tattoos on his body.
Because Boggess was the only occupant of the minivan when he was arrested,
Deputy Gray followed Starke County Sheriff’s Department policy and inventoried the
van’s contents before it was towed from the scene. Soon after initiating the inventory
search, Deputy Gray found a can of kerosene fuel, pickling salt, and coffee filters.
Deputy Gray recognized these items as ones commonly found in mobile
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methamphetamine manufacturing laboratories, immediately ceased his search, and called
for assistance from an Indiana State Police methamphetamine laboratory team.
Two Indiana State Police Troopers, Keith Bikowski and Brandon McBryer,
arrived at the scene and searched the minivan. In the search they recovered the torn
corner of a plastic bag containing a white powdery substance that was later determined to
be 0.16 grams of methamphetamine, eight lithium batteries, used coffee filters, plastic
tubing, a can of kerosene, a bottle of drain cleaner, a half-full box of pickling salt, a black
nylon case containing five capped syringes with attached hypodermic needles, a digital
scale, and a burned pen casing. In the cargo area they also found a plastic bag with a
moist, brown sugar-like substance that tested positive for production of hydrochloric gas,
which is produced by and used in the methamphetamine manufacturing process.
On July 13, the State charged Boggess with dealing in methamphetamine, as a
Class B felony; possession of methamphetamine, as a Class D felony; possession of
chemical reagents or precursors with intent to manufacture, as a Class D felony; driving
while suspended, as a Class A misdemeanor; false informing, as a Class B misdemeanor;
and with being an habitual offender. On November 15, 2011, the State filed an amended
information omitting the habitual offender allegation. Following a jury trial on
November 16 and 17, 2011, the jury found Boggess guilty of all charges. The trial court
entered judgment on all counts except possession of methamphetamine.
On November 23, the court held a sentencing hearing and sentenced Boggess to
seventeen years imprisonment for dealing in methamphetamine, three years
imprisonment for possession of chemical reagents or precursors with intent to
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manufacture, one year imprisonment for driving while suspended, and six months
imprisonment for false informing, all to be served concurrently. Boggess now appeals.
DISCUSSION AND DECISION
Issue One: Sufficiency of the Evidence
Our standard of review in sufficiency matters is well-settled. We consider only
the probative evidence and reasonable inferences supporting the verdict. When
reviewing a claim of sufficiency of the evidence, we do not reweigh the evidence or
judge the credibility of the witnesses. Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003).
We look only to the probative evidence supporting the verdict and the reasonable
inferences that may be drawn from that evidence 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.
Boggess contends that the evidence is insufficient to support his conviction for
dealing in methamphetamine.1 To prove dealing in methamphetamine, as a Class B
felony, the State was required to show beyond a reasonable doubt that Boggess possessed
methamphetamine with intent to manufacture the same, pure or adulterated. Ind. Code §
35-48-4-1.1(a)(2)(A); Appellant’s App. at 66. Boggess contends that the evidence is
1
Boggess does not challenge the sufficiency of evidence to support any of his other convictions.
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insufficient to show that he “ever intended to manufacture methamphetamine.”
Appellant’s Brief at 5.2
Boggess maintains that the State did not show that he knowingly or intentionally
possessed methamphetamine, with intent to manufacture the same, pure or adulterated.
But Boggess stipulated that officers found in the van’s center console a plastic baggie
with a corner cut off and a torn corner of a plastic baggie containing a white powdery
substance, which was later determined to be 0.16 grams of methamphetamine. Thus, the
State showed that he possessed methamphetamine.3
We next address whether the evidence is sufficient to show his intent to
manufacture methamphetamine. Boggess argues that the State did not show that he
actually or constructively possessed the precursors found inside the van. Actual
possession occurs when an individual “‘has direct physical control over the item.’”
Massey v. State, 816 N.E.2d 979, 989 (Ind. Ct. App. 2004) (quoting Henderson v. State,
715 N.E.2d 833, 835 (Ind. 1999)). Because Boggess did not have actual possession of
the evidence officers found in the van, the State was required to prove that he had
constructive possession of them. “In order to prove constructive possession, the State
must show that the defendant has both (1) the intent to maintain dominion and control
and (2) the capability to maintain dominion and control over the contraband.” Iddings v.
State, 772 N.E.2d 1006, 1015 (Ind. Ct. App. 2002) (citation omitted), trans. denied.
2
Insofar as Boggess also asserts that the State failed to show that he had already manufactured
methamphetamine at the time of his arrest, we simply note that the State was only required to demonstrate
that Boggess intended to manufacture methamphetamine. See Ind. Code § 35-48-4-1.1(a)(1)(A).
3
For the same reasons, we do not consider Boggess’ additional assertion that there was no
methamphetamine in the van.
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Where the defendant has possession of the premises where contraband is
discovered, but that possession is not exclusive, then the inference of intent must be
supported by additional circumstances pointing to the defendant’s knowledge of the
nature of the controlled substances and their presence. Gee v. State, 810 N.E.2d 338, 341
(Ind. Ct. App. 2004) (citation omitted). These “additional circumstances” have been
shown by various means, including:
(1) incriminating statements made by the defendant, (2) attempted flight or
furtive gestures, (3) location of substances like drugs in settings that
suggest manufacturing, (4) proximity of the contraband to the defendant,
(5) location of the contraband within the defendant's plain view, and (6) the
mingling of the contraband with other items owned by the defendant.
Id. (citation omitted). And to prove the defendant’s capability to maintain dominion and
control, he must be “able to reduce the controlled substance to his personal possession.”
Grim v. State, 797 N.E.2d 925, 831 (Ind. 2003). “In a manufacturing type [sic] setting, a
defendant’s presence does not compel a conviction but it does present a prima facie case
of possession.” Moore v. State, 613 N.E.2d 849, 851 (Ind. Ct. App. 1993).
Here, Boggess was the only individual in the minivan when it was stopped on July
8, and he had driven the van the prior evening when Trooper Parker stopped him because
of a nonfunctioning headlight. Boggess had borrowed the van from his mother two days
earlier. The small corner of a plastic baggie that contained 0.16 grams of
methamphetamine was located in the front console of the vehicle, which was within
Boggess’ reach while driving the minivan. Officers also found in the front area of the
van eight lithium batteries, syringes, and a pen casing with burn marks. In the rear cargo
area of the vehicle, in plain view along with Boggess’ bag, were plastic aquarium tubing,
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kerosene, and soiled coffee filters. Trooper Bikowski also found the plastic bag
containing the brown sugar-like substance that produced hydrochloric gas, which he
testified was indicative of an ongoing methamphetamine manufacturing process. Other
officers likewise testified that all of the seized items are commonly used in the
manufacture of methamphetamine.
Some of the items were found within his reach in the driver’s seat of the van, and
the evidence taken from the cargo area was in plain view next to Boggess’ personal
property. And at both traffic stops, Boggess denied his identity, repeatedly so on the day
of his arrest. Considered together, this evidence supports an inference that Boggess
constructively possessed material used to manufacture methamphetamine. And from his
possession of the precursors, we can reasonably infer that he intended to manufacture
methamphetamine. See, e.g., Jones, 783 N.E.2d at 1139. Boggess’ insistence that the
State did not show his possession of those materials because others had been in the van
the day before his arrest amounts to a request that we reweigh the evidence, which we
will not do. See id. The State proved Boggess’ intent to manufacture methamphetamine.
Thus, Boggess’ argument that the evidence is insufficient to support his conviction for
Class B felony dealing in methamphetamine must fail.
Issue Two: Double Jeopardy
Boggess next contends that his convictions for dealing in methamphetamine and
possession of chemical agents or precursors with intent to manufacturer violate double
jeopardy principles under Indiana’s actual evidence test. Article I, Section 14 of the
Indiana Constitution provides that “[n]o person shall be put in jeopardy twice for the
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same offense.” Our supreme court has explained that two offenses are the same offense
if the statutory elements of the crime are the same or the actual evidence used to convict
the defendant of two offenses is the same. Richardson v. State, 717 N.E.2d 32, 49-50
(Ind. 1999). The statutory elements analysis uses the test set forth by the United States
Supreme Court in Blockberger v. United States, 284 U.S. 299 (1932). Goldsberry v.
State, 821 N.E.2d 447, 459 (Ind. Ct. App. 2005) (citation omitted). Boggess does not
argue that the statutory elements test applies. We therefore turn to his argument under
the actual evidence test.
Under the actual evidence test, “the actual evidence presented at trial is examined
to determine whether each challenged offense was established by separate and distinct
facts.” Richardson, 717 N.E.2d at 53. To establish a double jeopardy violation, “a
defendant must demonstrate 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. However, “the
Indiana Double Jeopardy Clause is not violated when the evidentiary facts establishing
the essential elements of one offense also establish only one or even several, but not all,
of the essential elements of a second offense.” Spivey v. State, 761 N.E.2d 831, 833
(Ind. 2002) (citations omitted).
Application of the actual evidence test requires the court to identify the essential
elements of each of the challenged crimes and to evaluate the evidence from the fact-
finder’s perspective. Rexroat v. State, 966 N.E.2d 165, 169 (Ind. Ct. App. 2012) (citation
omitted), trans. denied. “In determining the facts used by the fact-finder to establish the
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elements of each offense, it is appropriate to consider the charging information, jury
instructions, and arguments of counsel.” Id. (internal quotation marks omitted).
Here, Boggess was convicted of both dealing in methamphetamine (“Count I”)
and possession of chemical reagents or precursors with intent to manufacture (“Count
III”). Again, to prove that Boggess committed Count I, the State was required to show
that he possessed methamphetamine with intent to manufacture methamphetamine, pure
or adulterated. See Ind. Code § 35-48-4-1.1(a)(2)(A). And to prove Count III, the State
was required to prove that he “possess[ed] two or more precursors with the intent to
manufacture methamphetamine, a schedule II controlled substance, to-wit: Sodium
Hydroxide (Rooto Drain Cleaner); Organic Solvents (kerosene); and Salts and Sulfuric
Acid (pink granules)[.]” Appellant’s App. at 66; see also Ind. Code § 35-48-4-14.5.
Contrary to Boggess’ contention on appeal, and as mentioned above, officers
found methamphetamine wrapped in a corner of a plastic baggie in the van.4 As
discussed above, that evidence supports Boggess’ conviction for Count I. To prove
Count III, as alleged in the charging information, the State was required to show that
Boggess possessed at least two of the following: drain cleaner, kerosene, salts, and
sulfuric acid.
In closing argument, the State referred to Boggess’ possession of two of these four
precursors as supporting a conviction for Count I:
Then we get to the dealing in methamphetamine statute. Now under the
dealing statu[t]e, there’s a number of different ways in which a defendant
4
We find it interesting that Boggess denies that officers found the methamphetamine in the van
in light of the fact that, in Exhibit 37, he stipulated that a forensic scientist tested evidence marked as
Exhibit 35 and that the testing showed that evidence to contain .16 gram of methamphetamine. A party
cannot change his position on appeal. In any event, Boggess’ new argument is wholly meritless.
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can be charged. What the State charged in this case is with [sic] possession
of methamphetamine with intent to manufacture. So how did we prove that
to you? Once again, you heard from Trooper Bikowski and he told you
very clearly he found the chemicals, some of which were still, I think he
said damp or wet, that they were still actively interacting with each other
creating the hydrochloric gas; that he told you that is actual process of
manufacturing methamphetamine; that you have the tubing, you have the
electric Cal tape, you went through and had the Ro[o]to drain cleaner. You
had the kerosene which would be the solvent, the clear liquid that the
methamphetamine gets stuck in and they have to add the gas to it to make it
sort of rain out or fall out of it. . . .
Transcript at 259-60. In other words, the State relied on two of the four precursors listed
on the charging information under Count III to support both convictions for both Count I
and Count III.
But Count III of the charging information also alleged that Boggess possessed two
other precursors, namely, salts and sulfuric acid. And Boggess cannot show that the State
relied on the salts and sulfuric acid to support the conviction for Count I. The jury could
have relied on Boggess’ possession of salts and sulfuric acid, which would have been
sufficient to convict him of Count III. As such, Boggess has not shown a reasonable
possibility that the jury used the same evidence to establish all of the essential elements
of both Count I and Count III. Boggess’ double jeopardy argument must fail.
Affirmed.
KIRSCH, J., and MAY, J., concur.
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