MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), Sep 22 2016, 5:27 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew J. McGovern Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Morgan Christopher Foster, September 22, 2016
Appellant-Defendant, Court of Appeals Case No.
82A05-1511-CR-2010
v. Appeal from the Vanderburgh
Superior Court
State of Indiana, The Honorable Robert J. Pigman,
Appellee-Plaintiff. Judge
Trial Court Cause No.
82D03-1504-F3-2026
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A05-1511-CR-2010 | September 22, 2016 Page 1 of 26
Case Summary and Issues
[1] Following a jury trial, Morgan Foster was convicted of conspiracy to commit
dealing in methamphetamine as a Level 2 felony and was sentenced to twenty-
two and one-half years in the Indiana Department of Correction. Foster
appeals his conviction and sentence, raising five issues for our review, which we
restate as (1) whether the trial court abused its discretion in admitting evidence,
(2) whether the evidence is sufficient to support his conviction, (3) whether his
conviction violates the prohibition against double jeopardy, (4) whether his
sentence violates Indiana’s Proportionality Clause, and (5) whether his sentence
is inappropriate in light of the nature of the offense and his character.
Concluding the trial court did not abuse its discretion in admitting evidence, the
evidence is sufficient to support Foster’s conviction, his conviction does not
violate the prohibition against double jeopardy, and his sentence is neither
unconstitutional nor inappropriate, we affirm.
Facts and Procedural History
[2] In early April 2015, Foster was attempting to locate pseudoephedrine pills to
manufacture methamphetamine. A confidential informant and Foster agreed to
an exchange. The confidential informant notified Detective Todd Seibert of the
Evansville Police Department of the agreement with Foster. Detective Seibert
then set up a controlled buy between the informant and Foster.
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[3] On April 7, 2015, Detective Seibert provided the informant with 100, 120
milligram pseudoephedrine pills. Around 4:00 p.m., the informant arrived at
Foster’s home. The informant told Foster she wanted three grams of
methamphetamine in exchange for the pills. Foster did not have any
methamphetamine at the time, but stated he would “be started by 7:00 [and] be
done no later than 11:00.” Transcript at 377. Foster provided the informant
with his personal property as collateral and explained he would call the
informant “[n]o later than 11:00.” Id. at 380. During the conversation,
Demareo Thurston called Foster and Foster demanded Thurston come to the
home, claiming he was “ready to go.”1 Id. at 377. The informant gave Foster
all 100 pills and left. Detectives Seibert, Patrick McDonald, and Brock Hensley
then conducted surveillance on the home.
[4] Later that evening, Thurston arrived at Foster’s home with camping fuel.
Foster then requested Thurston purchase sodium hydroxide (lye) and a one-
gallon plastic bottle. Thurston obliged, and returned with sodium hydroxide, a
one-gallon plastic container, and coffee filters. In exchange for his time,
Thurston was hoping to receive at least one gram of methamphetamine.
[5] At some point, Detective Seibert walked around the home and noticed a strong
chemical odor emanating from the back of the home. Through his training and
experience, Detective Seibert believed the odor was indicative of the
1
Thurston testified Foster called him a day before the controlled buy and requested Thurston obtain camping
fuel, a common precursor used in the manufacturing of methamphetamine.
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manufacturing of methamphetamine. Unbeknownst to Detective Seibert, other
police officers received a report of a chemical odor emanating from the home
around the same time. When those police officers arrived, Detective Hensley
called the officers and requested they attempt to contact Foster and Thurston.
The police officers also noticed a strong chemical odor coming from the home.
After no one answered the door, the police officers left. Shortly thereafter,
Thurston and Foster also left. Police officers were able to locate the pair and
Detective Seibert spoke with Foster. Detective Seibert detected a strong
chemical odor generally associated with the manufacturing of
methamphetamine coming from Foster.
[6] Detective Seibert then signed an affidavit for a search warrant of Foster’s home,
which stated in part, “[O]fficers responded to [Foster’s] residence due to an
anonymous complaint that a strong chemical odor was coming from the
residence.” Defendant’s Exhibit A. Despite attesting that he “speaks from
personal knowledge and observation,” id., Detective Seibert did not have
personal knowledge that police officers had responded due to an anonymous
complaint. The trial court authorized the search. During the search, police
officers observed an active “one pot” manufacturing lab, the contents of which
were still undergoing a chemical reaction. Tr. at 207. In addition, they
observed the following items typically used in the manufacture, use, and
dealing of methamphetamine: coffee filters, lye, a coffee bean grinder, digital
scales, corner cut baggies, a used cold pack, a straw used to inhale or smoke
narcotics, and camping fuel. No pseudoephedrine pills were discovered during
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the search of the home. On April 25, 2015, the State charged Foster with
dealing in methamphetamine as a Level 2 felony (“Count I”), conspiracy to
commit dealing in methamphetamine as a Level 2 felony (“Count II”), and
attempted dealing in methamphetamine as a Level 3 felony (“Count III”).
[7] In September 2015, Foster filed a motion for a Franks hearing and/or a motion
to suppress, alleging Detective Seibert recklessly included a false statement in
his application for the search warrant, the false statement was necessary to the
finding of probable cause, and therefore all evidence seized during the search
was fruit of the poisonous tree. At a hearing on the matter, Detective Seibert
admitted he did not have personal knowledge that police officers had received
an anonymous tip regarding an odor coming from the house, claiming the
statement was innocently included due to a “a typo from a cut and paste from
when the warrant was typed.” Id. at 84. He further claimed he only signed the
affidavit, explaining an individual in the prosecutor’s office typed the affidavit
pursuant to Detective Hensley’s account of the facts. The trial court ultimately
struck the false statement from the affidavit and concluded the remaining
information established probable cause for the issuance of the warrant and
therefore the evidence seized pursuant to the warrant was lawful.
[8] At trial, the State admitted evidence seized during the search of Foster’s
residence. Foster objected, alleging the admission of evidence violated the
Fourth Amendment. The trial court overruled his objection, and the jury
returned guilty verdicts on all three counts. At sentencing, the trial court
entered judgment of conviction only on Count II, conspiracy to commit dealing
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in methamphetamine, due to double jeopardy concerns and sentenced Foster to
twenty-two and one-half years in the Department of Correction. This appeal
ensued.
Discussion and Decision
I. Admission of Evidence
A. Standard of Review
[9] At the outset, we note Foster did not seek interlocutory review of the trial
court’s denial of his pretrial motion to suppress/Franks motion and we therefore
consider his appeal as a request for this court to review the trial court’s decision
to admit evidence at trial. See Carpenter v. State, 18 N.E.3d 998, 1001 (Ind.
2014). We review a trial court’s admission of evidence for an abuse of
discretion. McVey v. State, 863 N.E.2d 434, 440 (Ind. Ct. App. 2007), trans.
denied. “An abuse of discretion occurs if a trial court’s decision is clearly
against the logic and effect of the facts and circumstances before the
court.” Id. We neither weigh the evidence nor resolve questions of credibility,
“but consider the evidence which supports the decision of the trier of fact in the
case of contested evidence and any uncontested evidence presented by the
appellant.” Davies v. State, 730 N.E.2d 726, 732 (Ind. Ct. App. 2000), trans.
denied, cert. denied, 532 U.S. 945 (2001).
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B. Search Warrant
[10] Foster argues the affidavit supporting the issuance of the search warrant
contained a false statement that misled the issuing court and therefore the
search was unconstitutional under the Fourth Amendment. The Fourth
Amendment requires a hearing be held in the event a defendant “makes a
substantial preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was included by the
affiant in the warrant affidavit, and [was] necessary to the finding of probable
cause . . . .” Franks v. Delaware, 438 U.S. 154,155-56 (1978). Stated differently,
only when the defendant satisfies this burden and the remaining information in
the affidavit is insufficient to establish probable cause is the search warrant
deemed void. Id. at 156.
[11] In deciding whether to issue a search warrant, “[t]he task of the
issuing magistrate is simply to make a practical, commonsense
decision whether, given all the circumstances set forth in the
affidavit . . . there is a fair probability that contraband or
evidence of a crime will be found in a particular place.” The
duty of the reviewing court is to determine whether the
magistrate had a “substantial basis” for concluding that probable
cause existed. It is clear that a substantial basis requires the
reviewing court, with significant deference to the magistrate’s
determination, to focus on whether reasonable inferences drawn
from the totality of the evidence support the determination of
probable cause. A “reviewing court” for these purposes includes
both the trial court ruling on a motion to suppress and an
appellate court reviewing that decision. In this review, we
consider only the evidence presented to the issuing magistrate
and not post hoc justifications for the search.
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Query v. State, 745 N.E.2d 769, 771 (Ind. 2001) (alterations in original) (citations
omitted). Here, in signing the affidavit, Detective Seibert swore that police
officers responded to Foster’s residence due to an anonymous complaint that a
strong chemical odor was coming from the residence. This fact is supported by
the record. However, Detective Seibert had no knowledge of this fact before
signing the affidavit. Upon Foster’s motion, the trial court struck that portion
of the affidavit and concluded the remaining information was sufficient to
support a probable cause determination. On appeal, Foster acknowledges the
remaining information included in the affidavit is sufficient to determine
probable cause exists,2 see Brief of Appellant at 27-28, but cites Esquerdo v. State,
640 N.E.2d 1023 (Ind. 1994), and argues even if there was sufficient probable
cause, the affidavit’s false statement tainted the probable cause determination
thereby invalidating the search warrant.
[12] In Esquerdo, a confidential informant advised police officers Esquerdo was
selling drugs from his home. Following a controlled buy, the confidential
informant notified police officers that she believed Esquerdo was destroying
2
We agree. The remaining information in the affidavit provides the following narrative: police officers
observed a strong chemical odor typically associated with the manufacturing of methamphetamine
emanating from the home; police officers attempted to contact Thurston and Foster inside the
residence, but neither answered the door; soon thereafter, Thurston and Foster exited the home in a
fashion that indicated the pair were attempting to elude police officers; and the police officers
ultimately made contact with Foster and observed a strong chemical odor associated with the
manufacturing of methamphetamine. Such a narrative is sufficient to support a probable cause
determination. See, e.g., State v. Hawkins, 766 N.E.2d 749, 752 (Ind. Ct. App. 2002) (“[W]hen a trained
and experienced police officer detects the strong and distinctive odor of burnt marijuana coming from a
vehicle, the officer has probable cause to search the vehicle.”), trans. denied.
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evidence. Without a warrant, police officers forcibly entered Esquerdo’s
residence and observed cocaine and marijuana in plain view. Thereafter, the
police officers submitted an affidavit for a search warrant, which included
information regarding the controlled buy and the narcotics found in plain view.
Upon the issuance of the search warrant, police officers conducted a more
detailed search of Esquerdo’s residence, finding more evidence of drug use.
Prior to trial, Esquerdo moved to suppress the evidence found during the
warrantless entry, as well as the evidence seized pursuant to the search warrant,
which the trial court denied. This court affirmed.
[13] On transfer, our supreme court considered Esquerdo’s argument the evidence
seized during the warrantless entry was fruit of the poisonous tree for lack of
exigent circumstances, and therefore the evidence seized pursuant to the search
warrant was also fruit of the poisonous tree because the information contained
in the affidavit for the search warrant was the product of the warrantless entry.
The court agreed no exigent circumstances existed to justify the warrantless
entry into Esquerdo’s home, id. at 1028, and then considered whether illegally
obtained evidence that is presented as evidence of probable cause can taint an
otherwise sufficient probable cause determination thereby invalidating a search
warrant.
[14] In its analysis, the court acknowledged the affidavit included evidence of the
controlled buy, which on its own, made it reasonable for the issuing court to
conclude sufficient probable cause existed to issue a search warrant. Id. at
1029. However, the court concluded the evidence illegally seized during the
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warrantless search and used to obtain a search warrant tainted the probable
cause determination and rendered the search invalid because allowing the
police to attain a search warrant in such a way would “would give the police
incentive to enter [] a residence, without a judicially-issued warrant, and search
for evidence to bolster any evidence supporting probable cause that the police
already possess.” Id. at 1030.
[15] Foster argues the present case is analogous to Esquerdo, contending Detective
Seibert’s false statement tainted an otherwise proper probable cause
determination. However, unlike Esquerdo, the affidavit here included no
illegally obtained evidence but merely a false statement regarding whether
Detective Seibert had personal knowledge of the anonymous complaint, a fact
we do not consider relevant considering the probable cause affidavit included
sufficient information regarding numerous police officers who observed a strong
chemical odor emanating from Foster’s residence. See supra note 2. We
therefore find the limited holding in Esquerdo inapplicable to the present case
and conclude the trial court did not err in admitting evidence found pursuant to
the search warrant.
II. Conspiracy to Commit Dealing in Methamphetamine
A. Standard of Review
[16] Foster contends the evidence is insufficient to support his conviction for
conspiracy to commit dealing in methamphetamine as a Level 2 felony. When
reviewing the sufficiency of the evidence to support a conviction, we consider
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only the probative evidence and reasonable inferences supporting the
judgment. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We neither reweigh
the evidence nor reassess the credibility of witnesses. Id. We will affirm a
conviction unless “no reasonable fact-finder could find the elements of the
crime proven beyond a reasonable doubt.” Id. at 146-47 (citation omitted).
B. Sufficiency of the Evidence
[17] Foster argues the State presented insufficient evidence to support his conviction,
arguing the evidence does not establish his unfinished methamphetamine
mixture would have yielded between five and ten grams of methamphetamine.
The State charged Foster with conspiracy to commit dealing in
methamphetamine as a Level 2 felony. Indiana Code section 35-41-5-2 states,
(a) A person conspires to commit a felony when, with intent to
commit the felony, the person agrees with another person to
commit the felony. . . .
(b) The state must allege and prove that either the person or the
person with whom he or she agreed performed an overt act in
furtherance of the agreement.
Generally, a person who knowingly or intentionally manufactures, finances the
manufacture, delivers, or finances the delivery of pure or adulterated
methamphetamine commits dealing in methamphetamine as a Level 5 felony.
Ind. Code § 35-48-4-1.1(a). However, the crime is enhanced to a Level 2 felony
if the State proves “the amount of the drug involved is at least five (5) grams but
less than ten (10) grams and an enhancing circumstance applies.” Ind. Code §
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35-48-4-1.1(e). As an enhancing circumstance, the State alleged Foster
manufactured or financed the manufacture of methamphetamine pursuant to
Indiana Code section 35-48-1-16.5 (defining an “enhancing circumstance”).
Therefore, in order to sustain a conviction for conspiracy to commit dealing as
a Level 2 felony, the State was required to prove Foster (1) intended to commit
dealing in methamphetamine, (2) agreed with Thurston to commit the felony,
(3) either Thurston or Foster performed an overt act in furtherance of the
agreement, (4) the amount of drug involved was between five and ten grams,
and (5) Foster manufactured or financed the manufacture of the drug. Foster
only argues the evidence is insufficient to support the fourth element.
[18] At the outset, it is necessary to note when police officers searched Foster’s
residence the manufacturing process was not yet complete, leaving only an
intermediate mixture of methamphetamine. See Buelna v. State, 20 N.E.3d 137,
141-42 (Ind. 2014) (describing the final extracted methamphetamine as
“adulterated” methamphetamine and methamphetamine that has not
undergone the entire manufacturing process as an “intermediate mixture”).
“An intermediate chemical mixture is not a controlled substance or drug under
the Indiana criminal code” and is considered “neither ‘adulterated’ nor ‘pure’
methamphetamine.” Id. at 146. Therefore, in instances where, as here, the
State relies on an intermediate mixture to satisfy an enhancement, it may not
simply rely on the weight of the intermediate mixture; rather “it must
demonstrate how much final product a defendant’s particular manufacturing
process would have yielded had it not been interrupted by police . . . .” Id.
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[19] There are several ways the State can demonstrate the weight of a final yield. Id.
Sufficient evidence of final yield may come from a skilled or expert witness. Id.
For example, the State may introduce evidence of the amount of finished
product as weighed by a forensic scientist, elicit direct testimony of the actual
weight of the final yield from those who “regularly use or deal in the substance”
or “developed an acute ability to assess the weight” of the drugs in which they
deal, or may offer testimony from police officers or detectives who regularly
investigate methamphetamine crimes to establish the weight of the final
product. Id. at 147-48.
Skilled witness testimony is permissible as long as the method the
witness uses for showing final yield is accurately tailored to the
specific manufacturing conditions, ingredients, and skill of the
accused. And the testimony cannot leave reasonable doubt that
the defendant’s final yield would fail to surpass the [weight] . . .
threshold.
Id. at 146.
[20] Here, the State relied largely on the testimony of Detective Hensley to indicate
Foster’s final yield would have been between five and ten grams.3 Detective
Hensley has been employed by the Evansville Police Department for sixteen
years and has served as a detective for the Evansville Police Department-
Vanderburgh County Joint Task Force for the past four years, specifically
3
At trial, Foster conceded Detective Hensley is a skilled witness pursuant to Indiana Evidence Rule 701. See
Tr. at 156.
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working in the Methamphetamine Suppression Unit. In total, he has
investigated over 800 methamphetamine labs. He has also attended multiple
classes that require police officers to engage in discussion and training about the
manufacturing of methamphetamine. Detective Hensley learned the different
methods of manufacturing, how to successfully dismantle a methamphetamine
lab, and how to cook methamphetamine. In addition, the classes required
Detective Hensley to undergo training in regard to the different yield ratios for
the different manufacturing methods. He successfully completed his schooling,
receiving certifications from the Drug Enforcement Agency as a Clandestine
Lab Investigator and Site Safety Supervisor. Over his career, Detective Hensley
has cooked methamphetamine approximately ten times in controlled settings,
largely utilizing the one-pot method.
[21] Detective Hensley testified there are generally four methods to manufacture
methamphetamine, including the one-pot method, which does not require
much skill and provides the highest yield. In determining the yield ratio for the
one-pot method, Detective Hensley opined,
[T]he main consideration is the amount of pills that you are
putting in. Because of the actual reduction process the amount of
pills you’re putting in will give you the weight of your
pseudoephedrine based-cold medication, which in time will give
you the yield ratio or the percentage of the finished product.
Tr. at 157. Another vital consideration is the barometric pressure in the
atmosphere surrounding the lab. Id. at 159. A successful one-pot
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manufacturing lab will yield no less than 50% and no more than 92%, with the
most common yield being 80%. Id. at 158-60.
[22] Here, Detective Hensley provided the confidential informant with 100, 120
milligram pseudoephedrine pills, totaling twelve grams. All 100 hundred pills
were then given to Foster in exchange for three grams of the methamphetamine
Foster would soon attempt to cook. Foster immediately requested Thurston
come to his house because he was “ready to go.” Id. at 377. Thurston brought
over camping fuel, and at Foster’s additional request, retrieved sodium
hydroxide (lye), coffee filters, and a one-gallon plastic container. Thurston was
under the impression he would receive one gram of the methamphetamine
Foster would soon attempt to cook. During the search of Foster’s residence,
Detective Hensley observed multiple precursors and a one-pot lab, the contents
of which were still undergoing a chemical reaction. Specifically, he noted
Foster utilized a one-gallon plastic container instead of the commonly used
two-liter plastic container, which he claimed through his training was indicative
of Foster’s intent to manufacture more methamphetamine.
[23] Detective Hensley described the manufacturing conditions as “a pretty
controlled environment, obviously it is inside a basement that is inside a
residence, so you really [do not] have to worry about the weather or pressure or
anything like that, so it is a pretty controlled environment.” Id. at 182.
Ultimately, Detective Hensley opined that, but-for police intervention, Foster’s
one-pot lab would have yielded between 50% and 92%. Given his testimony
noted above, namely the facts that the confidential informant provided 100, 120
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milligram pseudoephedrine pills totaling twelve grams, no pills were found in
Foster’s residence or on his person, and Foster’s reaction vessel was larger than
most, Detective Hensley concluded Foster’s one-pot lab would have yielded
between six and ten point eight (10.8) grams of methamphetamine.
[24] Foster argues there is no evidence he used 100 pills and therefore Detective
Hensley’s opinion in regards to Foster’s final yield amounted to mere
speculation and conjecture. We disagree.4 Foster was in need of
pseudoephedrine and the confidential informant provided him with 100, 120
milligrams pseudoephedrine pills. As soon as he received the pills, he called
Thurston, stating he was “ready to go.” Id. at 377. Foster used a one-gallon
plastic container as his reaction vessel, which is larger than the two-liter plastic
container Detective Hensley typically encounters. In addition, law enforcement
did not find any pseudoephedrine pills in Foster’s residence or on his person.
The facts here give rise to an inference that Foster intended to use and did use
at least 100, 120 milligram pills totaling twelve grams of pseudoephedrine.
Given this inference, coupled with Foster’s manufacturing process, the
4
Stated differently, Foster would have us require, as a matter of law, there be direct evidence of the amount
of pseudoephedrine pills placed into a reaction vessel in situations where the manufacturing process is
interrupted in order to convict defendants under Indiana Code section 35-48-4-1.1(c)-(e) (felony
enhancements). We believe such a requirement would render the enhancement useless because in situations
where the manufacturing process is interrupted and there is no tangible final yield, it would be impossible to
determine the amount of pseudoephedrine used without a defendant’s confession or some other form of
evidence explicitly indicating the defendant utilized a certain amount of pills, such as a co-conspirator
witnessing exactly 100 ground up pills being placed in the vessel. In addition, if we were to require such
specific evidence, it would give law enforcement an incentive to allow individuals to continue and finish the
manufacturing process; given the dangers inherent in manufacturing methamphetamine, such a circumstance
would undoubtedly increase risk of injury to those in the vicinity of a methamphetamine lab.
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manufacturing conditions, evidence of the precursors, and the lack of skill
necessary to manufacture methamphetamine via the one-pot method, Detective
Hensley opined Foster would have produced at the very least six grams of
methamphetamine. Based on the foregoing, a reasonable jury could conclude
Foster’s manufacturing lab would have yielded between five and ten grams of
methamphetamine if it had not been interrupted by police. Therefore, the
evidence is sufficient to support Foster’s conviction for conspiracy to commit
dealing in methamphetamine as a Level 2 felony.
III. Double Jeopardy
[25] Foster argues his conviction as a Level 2 felony implicates double jeopardy
because “the enhancement charge[] [is] simply a restatement of the underlying
charge[].”5 Br. of Appellant at 39. Although somewhat difficult to
comprehend, it appears he contends the fact he manufactured
methamphetamine was not only used to prove he conspired to commit dealing
in methamphetamine as an underlying offense but was also the fact utilized by
the State to subject him to the higher sentencing range imposed for dealing in
methamphetamine as a Level 2 felony. We disagree.
5
The State argues Foster has waived this claim in not objecting at trial. We note a double jeopardy
violation, if shown, can constitute fundamental error and must be reviewed on a case by case basis. See
Taylor v. State, 717 N.E.2d 90, 95 n.7 (Ind. 1999) (“We decline to apply prior summary declarations that
violations of double jeopardy rights constitute fundamental error. The issue of fundamental error is better
determined on a case by case basis.”).
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[26] The Fifth Amendment to the United States Constitution provides “[n]o person
shall be . . . subject for the same offense to be twice put in jeopardy of life or
limb . . . .” Under the Fifth Amendment, a defendant’s conviction upon
multiple offenses will not be precluded by double jeopardy principles if each
statutory offense requires proof of a fact the other does not. Blockburger v. United
States, 284 U.S. 299, 302 (1932).
[27] Similarly, Article 1, Section 14 of the Indiana Constitution states “[n]o person
shall be put in jeopardy twice for the same offense.” Two offenses are the
“same offense” in violation of Article 1, Section 14, 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. Richardson v. State, 717
N.E.2d 32, 49-50 (Ind. 1999). Both Constitutions prohibit multiple
punishments for the same offense. Davis v. State, 770 N.E.2d 319, 323 (Ind.
2002). Therefore, the constitutional double jeopardy provisions govern claims
regarding the elements of multiple crimes. Nicoson v. State, 938 N.E.2d 660, 663
(Ind. 2010).
[28] At the outset, we note Foster was convicted of only one offense: conspiracy to
commit dealing in methamphetamine as a Level 2 felony. Because the
aforementioned tests all require the comparison of the elements of multiple
convictions, neither the Blockburger test, the Richardson actual evidence test, nor
the Richardson statutory elements test is violated. See id. However, “[i]n
addition to the instances covered by Richardson, ‘we have long adhered to a
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series of rules of statutory construction and common law that are often
described as double jeopardy, but are not governed by the constitutional test set
forth in Richardson.’” Guyton v. State, 771 N.E.2d 1141, 1143 (Ind.
2002) (quoting Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002)). “These rules
are sometimes referred to as Justice Sullivan’s categories because he first
enumerated them in his concurring opinion in Richardson.” Zieman v. State, 990
N.E.2d 53, 61 (Ind. Ct. App. 2013).
[29] One such category prohibits “[c]onviction and punishment for an enhancement
of a crime where the enhancement is imposed for the very same behavior or
harm as another crime for which the defendant has been convicted and
punished.” Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring). In
discussing this category, Justice Sullivan explained, “In situations where a
defendant has been convicted of one crime for engaging in the specified
additional behavior or causing the specified additional harm, that behavior or
harm cannot also be used as an enhancement of a separate crime; either the
enhancement or the separate crime is vacated.” Id. Foster cites this category,
arguing the fact he manufactured methamphetamine, which contributed to the
enhancement of his offense to a Level 2 felony, is the very same behavior
supporting the underlying offense that he conspired to commit dealing in
manufacturing as a Level 5 felony.
[30] We do not see how this category is applicable to the present case. As Justice
Sullivan made clear in Richardson, this category is applicable in situations where
the behavior supporting a conviction for one crime is the same behavior used to
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enhance a conviction for a separate crime. See id. Foster was only convicted of
conspiracy to commit dealing in methamphetamine as a Level 2 felony, which
required the State to prove Foster (1) intended to commit dealing in
methamphetamine, (2) agreed with Thurston to commit the felony, (3) either
Thurston or Foster performed an overt act in furtherance of the agreement, (4)
the amount of drug involved was between five and ten grams, and (5) Foster
manufactured or financed the manufacture of the drug. Ind. Code §§ 35-48-4-
1.1(a)(1), (e)(2); Ind. Code § 35-41-5-2; Ind. Code § 35-48-1-16.5(5). Therefore,
there is no separate conviction or enhancement for us to address. 6
6
Foster relies heavily on the dealing statute in support of the notion his conviction as a Level 2 felony is
improper. Dealing in methamphetamine as a Level 5 felony requires proof the defendant knowingly or
intentionally manufactured, financed the manufacture of, delivered, or financed the delivery of pure or
adulterated methamphetamine. Ind. Code § 35-48-4-1.1(a). The crime is enhanced to a Level 2 felony if the
State proves the amount of drug involved is between five and ten grams and an enhancing circumstance
applies. Ind. Code § 35-48-4-1.1(e)(2). One such enhancing circumstance is the defendant’s manufacture or
financing of the manufacture of methamphetamine. Ind. Code § 35-48-1-16.5(5). Therefore, hypothetically
speaking, in situations where a defendant is charged with dealing in methamphetamine as a Level 5 felony
based on evidence he did knowingly or intentionally manufacture or finance the manufacturing of
methamphetamine, a concern may arise if that conviction is enhanced to a Level 2 felony based on the same
fact the defendant manufactured or financed the manufacture of methamphetamine. However, this situation
is not applicable here. Foster was charged with conspiracy to commit dealing in methamphetamine.
Conspiracy to commit dealing in methamphetamine as a Level 5 felony does not require the State to prove
the defendant knowingly or intentionally manufactured or financed the manufacture of methamphetamine.
Rather, it requires the State to only prove a defendant intended to commit dealing in methamphetamine,
agreed with another to commit dealing in methamphetamine, and one party to the agreement took an overt
step in furtherance of the agreement. Certainly, the fact Foster actually manufactured methamphetamine
could be used as evidence to show he conspired to deal in methamphetamine. Other facts supporting his
conviction, however, include his act of attaining pseudoephedrine pills, his promise to provide
methamphetamine to the confidential informant and Thurston in exchange for precursors, Thurston’s acts of
purchasing and providing precursors, and Foster’s possession of scales and corner cut baggies.
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[31] We conclude his conviction of conspiracy to commit dealing in
methamphetamine as a Level 2 felony does not violate any prohibition against
double jeopardy.
IV. Disproportionate Sentence
[32] Foster claims his sentence cannot stand because it violates the Proportionality
Clause of the Indiana Constitution. Specifically, and similar to his double
jeopardy argument, he argues the same conduct of manufacturing or financing
the manufacture of five to ten grams of methamphetamine can be either a Level
3 felony, Ind. Code § 35-48-4-1.1(d)(1), or a Level 2 felony, Ind. Code §§ 35-48-
4-1.1(e)(2) and 35-48-1-16.5(5). Because defendants committing identical
offenses can be given different sentences depending upon which statute they are
charged under, Foster claims the statute is unconstitutional. Compare Ind. Code
§ 35-50-2-4.5 (a Level 2 felony carries a sentence between ten and thirty years)
with Ind. Code § 35-50-2-5(b) (a Level 3 felony carries a sentence between three
and sixteen years).
[33] At the outset, we note Foster did not challenge the constitutionality of the
penalty for the offense at the trial court level. Therefore, the issue is waived.
See Adams v. State, 804 N.E.2d 1169, 1172 (Ind. Ct. App. 2004) (holding the
failure to challenge the constitutionality of a criminal statute by a motion to
dismiss prior to trial waives the issue on appeal). Waiver notwithstanding, our
standard of review is well settled:
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Every statute stands before us clothed with the presumption of
constitutionality until clearly overcome by a contrary showing.
The party challenging the constitutionality of the statute bears the
burden of proof, and we resolve all doubts against that party. If
there are two reasonable interpretations of a statute, one of which
is constitutional and the other not, we will choose that path
which permits upholding the statute because we will not presume
that the legislature violated the constitution unless such is
required by the unambiguous language of the statute.
Poling v. State, 853 N.E.2d 1270, 1275 (Ind. Ct. App. 2006) (citation omitted).
[34] Pursuant to Article 1, Section 16, of the Indiana Constitution, “All penalties
shall be proportioned to the nature of the offense.” Generally, a sentence
violates the Proportionality Clause only when it is so severe and entirely out of
proportion to the gravity of the offense committed that it “shock[s] public
sentiment and violate[s] the judgment of a reasonable people.” Pritscher v. State,
675 N.E.2d 727, 731 (Ind. Ct. App. 1996) (citation omitted). However, our
supreme court has also held a sentence violates the proportionality clause where
identical offenses are given different sentences. Poling, 853 N.E.2d at 1276-77.
[35] Indiana Code section 35-48-4-1.1 provides,
(a) A person who:
(1) knowingly or intentionally:
(A) manufactures;
(B) finances the manufacture of;
(C) delivers; or
(D) finances the delivery of;
methamphetamine, pure or adulterated;
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***
commits dealing in methamphetamine, a Level 5 felony, except
as provided in subsections (b) through (e).
***
(d) The offense is a Level 3 felony if:
(1) the amount of the drug involved is at least five (5)
grams but less than ten (10) grams; or
(2) the amount of the drug involved is at least one (1) gram
but less than five (5) grams and an enhancing circumstance
applies.
(e) The offense is a Level 2 felony if:
(1) the amount of the drug involved is at least ten (10)
grams;
(2) the amount of the drug involved is at least five (5)
grams but less than ten (10) grams and an enhancing
circumstance applies; or
(3) the person is manufacturing the drug and the
manufacture results in an explosion causing serious bodily
injury to a person other than the manufacturer.
Given the facts in this case, the plain and unambiguous language of the statute
required the State, in order to convict Foster of a Level 3 felony, to prove the
amount of methamphetamine involved was between five and ten grams.
However, in order to convict Foster of a Level 2 felony, the State was required
to prove the amount of methamphetamine involved was between five and ten
grams, and as an enhancing circumstance, that Foster manufactured or financed
the manufacture of the drug he and Thurston conspired to deal. See Ind. Code §
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35-48-1-16.5(5). Therefore, convicting Foster of conspiracy to commit dealing
in methamphetamine as a Level 2 felony requires proof of an additional
element not required to sustain a conviction for the same as a Level 3 felony
and therefore the two crimes are not identical. See Poling, 853 N.E.2d at 1276-
77; supra, Part III. We conclude Indiana Code section 35-48-4-1.1 does not
violate Indiana’s Proportionality Clause as applied to Foster.
V. Inappropriate Sentence
[36] Foster further contends his sentence is inappropriate in light of the nature of the
offense and his character. Indiana Appellate Rule 7(B) provides, “The Court
may revise a sentence authorized by statute if, after due consideration of the
trial court’s decision, the Court finds that the sentence is inappropriate in light
of the nature of the offense and the character of the offender.” The defendant
bears the burden of persuading this court that his or her sentence is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether
we regard a sentence as inappropriate turns on “the culpability of the defendant,
the severity of the crime, the damage done to others, and myriad other factors
that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224
(Ind. 2008). Finally, we note the principal role of appellate review is to “leaven
the outliers,” not achieve the perceived “correct” result in each case. Id. at
1225. We therefore “focus on the forest—the aggregate sentence—rather than
the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count.” Id.
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[37] The advisory sentence is the starting point the legislature has selected as an
appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081.
The trial court entered judgment of conviction for conspiracy to commit dealing
in methamphetamine as a Level 2 felony. A person convicted of a Level 2
felony shall be imprisoned for a fixed term between ten and thirty years, with
the advisory sentence being seventeen and one-half years. Ind. Code § 35–50–
2–4.5. The trial court sentenced Foster to twenty-two and one-half years in the
Department of Correction. As to the nature of the offense, we note nothing
egregious or exceptional.
[38] As to Foster’s character, we note he is twenty-four years old and has been
convicted of multiple prior felonies. Specifically, Foster was previously
convicted of dealing in methamphetamine and was sentenced only to
probation. Foster violated probation in committing the present offense, which
indicates a reckless disregard for the law and an inability to take advantage of a
previously lenient sentence. We conclude Foster’s sentence is not inappropriate
in light of the nature of the offense and his character.
Conclusion
[39] Foster makes a litany of arguments challenging his conviction and sentence, all
of which we reject. We conclude the trial court did not err in admitting
evidence seized during the search of Foster’s residence. In addition, the
evidence is sufficient to sustain his conviction for conspiracy to commit dealing
in methamphetamine as a Level 2 felony. This conviction does not violate any
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prohibition against double jeopardy. Moreover, Foster’s sentence does not
violate the Proportionality Clause nor is it inappropriate. Accordingly, we
affirm Foster’s conviction and sentence.
[40] Affirmed.
Najam, J., and Crone, J., concur.
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