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MEMORANDUM DECISION - NOT FOR PUBLICATION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