MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Aug 25 2015, 9:40 am regarded as precedent or cited before any 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 John Jacob Warrum Gregory F. Zoeller Mt. Vernon, Indiana Attorney General of Indiana
Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Darrell Mattingly, August 25, 2015 Appellant-Defendant, Court of Appeals Case No. 65A01-1501-CR-29 v. Appeal from the Posey Superior Court State of Indiana, The Honorable S. Brent Almon, Appellee-Plaintiff Judge Trial Court Cause No. 65D01-1404-FA-99
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 65A01-1501-CR-29 | August 25, 2015 Page 1 of 8 Case Summary [1] Darrell Mattingly (“Mattingly”) was convicted of three counts of Dealing in
Methamphetamine, as Class A felonies, 1 and one count of Maintaining a
Common Nuisance, as a Class D felony. 2 He now appeals, raising a single
issue for our review: whether the State introduced evidence sufficient to rebut
his affirmative defense of entrapment.
[2] We affirm.
Facts and Procedural History [3] Mattingly had been friends with Rick Bowman (“Bowman”) during childhood,
but the two lost touch after high school. Sometime in 2011, however,
Mattingly and Bowman encountered one another in a tavern in Mount Vernon.
The two men renewed their friendship, and by this time, both men had become
involved in using methamphetamine. Bowman would occasionally stop by
Mattingly’s home unannounced, and the two men would share the drugs.
[4] During the course of their friendship, Bowman had provided Mattingly with
materials for the manufacture of methamphetamine. Bowman witnessed
1 Ind. Code § 35-48-4-1.1. The Indiana General Assembly enacted substantial revisions to our state’s criminal statutes, effective July 1, 2014. We refer throughout to the substantive provisions of our statutes in effect at the time of Mattingly’s offenses. 2 I.C. § 35-48-4-13.
Court of Appeals of Indiana | Memorandum Decision 65A01-1501-CR-29 | August 25, 2015 Page 2 of 8 Mattingly manufacture the drug using the “shake and bake” or “one pot”
method, and had also seen Mattingly fail to do so successfully. 3
[5] In 2012, Bowman became a confidential informant with the Posey County
Narcotics Task Force and the Federal Bureau of Investigation. As part of this
work, Bowman agreed to identify individuals he knew to be involved in the
manufacture and distribution of methamphetamine. Mattingly was one of
these individuals.
[6] On February 8, 2013, Bowman contacted Mattingly to inquire about obtaining
methamphetamine. Mattingly told Bowman that he did not have money to
purchase all the supplies, and stated specifically that he needed
pseudoephedrine pills and lithium batteries. Bowman informed his handler,
Kenneth Rose (“Rose”), an investigator with the Posey County Prosecutor’s
Office and head of the Posey County Narcotics Task Force, that he had
arranged for Mattingly to manufacture methamphetamine. Rose provided
Bowman with the pseudoephedrine pills and lithium batteries Mattingly
required.
[7] On February 9, 2013, in the context of a controlled buy monitored by Rose and
other law enforcement officers, Bowman drove to Mattingly’s home in Mount
Vernon and provided Mattingly two packages of pseudoephedrine pills and
3 The “shake and bake” or “one pot” method involves combining a number of chemicals, including ground- up pseudoephedrine tablets and strips of lithium pulled from lithium-containing batteries, into a single vessel. Tr. at 247. The vessel is shaken for a portion of the methamphetamine production process.
Court of Appeals of Indiana | Memorandum Decision 65A01-1501-CR-29 | August 25, 2015 Page 3 of 8 some lithium batteries. Mattingly began the manufacturing process and, late in
the day, contacted Bowman to inform him that the drugs were ready. Bowman
drove back to Mattingly’s home and retrieved a large portion of the
methamphetamine. After the transaction was complete, Bowman turned the
methamphetamine over to Rose. Bowman had been provided with a recording
device, and Bowman used the device to record audio and video of the portions
of the transaction when he was present in Mattingly’s home.
[8] On March 1, 2013, again within the context of a controlled buy, Rose provided
Bowman with materials for the manufacture of methamphetamine, which
Bowman again gave to Mattingly. On this occasion, Bowman provided four
packages of pills, and a larger amount of methamphetamine was produced by
Mattingly. Mattingly provided a large portion of the drugs to Bowman, and
told Bowman that the product was of a higher quality than in the previous
transaction because Mattingly had changed the process he used to dry the drug
after the manufacturing process was complete.
[9] After the conclusion of an investigation, on April 3, 2014, the State issued a
warrant for Mattingly’s arrest. On April 7, 2014, the State filed a charging
information, which charged Mattingly with three counts of Dealing in
Methamphetamine and one count of Maintaining a Common Nuisance.
[10] A jury trial was conducted from November 12 to November 14, 2014. During
the trial, Mattingly pursued an affirmative defense of entrapment, and the jury
Court of Appeals of Indiana | Memorandum Decision 65A01-1501-CR-29 | August 25, 2015 Page 4 of 8 was instructed as to the applicable law. At the conclusion of the trial, the jury
found Mattingly guilty as charged.
[11] On December 19, 2014, a sentencing hearing was conducted. The trial court
entered judgments of conviction against Mattingly at that time, and sentenced
him to twenty six years imprisonment for each count of Dealing in
Methamphetamine and twenty months imprisonment for Maintaining a
Common Nuisance, with all the terms running concurrent with one another.
This yielded an aggregate term of imprisonment of twenty six years.
[12] This appeal ensued.
Discussion and Decision [13] Mattingly raises for our review the sole question of whether the state adduced
sufficient evidence to rebut his affirmative defense of entrapment. We review a
claim of entrapment under the same standard that applies to other sufficiency
challenges. Griesemer v. State, 26 N.E.3d 606, 608 (Ind. 2015). Thus, we do not
reweigh evidence or reassess the credibility of witnesses. Id. We look to the
probative evidence supporting the verdict and the reasonable inferences drawn
therefrom. Id. If a reasonable trier of fact could infer beyond a reasonable
doubt that the defendant was guilty, we will affirm the defendant’s conviction.
Id.
[14] In Indiana, the affirmative defense of entrapment is defined by statute:
(a) It is a defense that: Court of Appeals of Indiana | Memorandum Decision 65A01-1501-CR-29 | August 25, 2015 Page 5 of 8 (1) the prohibited conduct of the person was the product of a law enforcement officer, or his agent, using persuasion or other means likely to cause the person to engage in the conduct; and
(2) the person was not predisposed to commit the offense.
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Aug 25 2015, 9:40 am regarded as precedent or cited before any 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 John Jacob Warrum Gregory F. Zoeller Mt. Vernon, Indiana Attorney General of Indiana
Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Darrell Mattingly, August 25, 2015 Appellant-Defendant, Court of Appeals Case No. 65A01-1501-CR-29 v. Appeal from the Posey Superior Court State of Indiana, The Honorable S. Brent Almon, Appellee-Plaintiff Judge Trial Court Cause No. 65D01-1404-FA-99
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 65A01-1501-CR-29 | August 25, 2015 Page 1 of 8 Case Summary [1] Darrell Mattingly (“Mattingly”) was convicted of three counts of Dealing in
Methamphetamine, as Class A felonies, 1 and one count of Maintaining a
Common Nuisance, as a Class D felony. 2 He now appeals, raising a single
issue for our review: whether the State introduced evidence sufficient to rebut
his affirmative defense of entrapment.
[2] We affirm.
Facts and Procedural History [3] Mattingly had been friends with Rick Bowman (“Bowman”) during childhood,
but the two lost touch after high school. Sometime in 2011, however,
Mattingly and Bowman encountered one another in a tavern in Mount Vernon.
The two men renewed their friendship, and by this time, both men had become
involved in using methamphetamine. Bowman would occasionally stop by
Mattingly’s home unannounced, and the two men would share the drugs.
[4] During the course of their friendship, Bowman had provided Mattingly with
materials for the manufacture of methamphetamine. Bowman witnessed
1 Ind. Code § 35-48-4-1.1. The Indiana General Assembly enacted substantial revisions to our state’s criminal statutes, effective July 1, 2014. We refer throughout to the substantive provisions of our statutes in effect at the time of Mattingly’s offenses. 2 I.C. § 35-48-4-13.
Court of Appeals of Indiana | Memorandum Decision 65A01-1501-CR-29 | August 25, 2015 Page 2 of 8 Mattingly manufacture the drug using the “shake and bake” or “one pot”
method, and had also seen Mattingly fail to do so successfully. 3
[5] In 2012, Bowman became a confidential informant with the Posey County
Narcotics Task Force and the Federal Bureau of Investigation. As part of this
work, Bowman agreed to identify individuals he knew to be involved in the
manufacture and distribution of methamphetamine. Mattingly was one of
these individuals.
[6] On February 8, 2013, Bowman contacted Mattingly to inquire about obtaining
methamphetamine. Mattingly told Bowman that he did not have money to
purchase all the supplies, and stated specifically that he needed
pseudoephedrine pills and lithium batteries. Bowman informed his handler,
Kenneth Rose (“Rose”), an investigator with the Posey County Prosecutor’s
Office and head of the Posey County Narcotics Task Force, that he had
arranged for Mattingly to manufacture methamphetamine. Rose provided
Bowman with the pseudoephedrine pills and lithium batteries Mattingly
required.
[7] On February 9, 2013, in the context of a controlled buy monitored by Rose and
other law enforcement officers, Bowman drove to Mattingly’s home in Mount
Vernon and provided Mattingly two packages of pseudoephedrine pills and
3 The “shake and bake” or “one pot” method involves combining a number of chemicals, including ground- up pseudoephedrine tablets and strips of lithium pulled from lithium-containing batteries, into a single vessel. Tr. at 247. The vessel is shaken for a portion of the methamphetamine production process.
Court of Appeals of Indiana | Memorandum Decision 65A01-1501-CR-29 | August 25, 2015 Page 3 of 8 some lithium batteries. Mattingly began the manufacturing process and, late in
the day, contacted Bowman to inform him that the drugs were ready. Bowman
drove back to Mattingly’s home and retrieved a large portion of the
methamphetamine. After the transaction was complete, Bowman turned the
methamphetamine over to Rose. Bowman had been provided with a recording
device, and Bowman used the device to record audio and video of the portions
of the transaction when he was present in Mattingly’s home.
[8] On March 1, 2013, again within the context of a controlled buy, Rose provided
Bowman with materials for the manufacture of methamphetamine, which
Bowman again gave to Mattingly. On this occasion, Bowman provided four
packages of pills, and a larger amount of methamphetamine was produced by
Mattingly. Mattingly provided a large portion of the drugs to Bowman, and
told Bowman that the product was of a higher quality than in the previous
transaction because Mattingly had changed the process he used to dry the drug
after the manufacturing process was complete.
[9] After the conclusion of an investigation, on April 3, 2014, the State issued a
warrant for Mattingly’s arrest. On April 7, 2014, the State filed a charging
information, which charged Mattingly with three counts of Dealing in
Methamphetamine and one count of Maintaining a Common Nuisance.
[10] A jury trial was conducted from November 12 to November 14, 2014. During
the trial, Mattingly pursued an affirmative defense of entrapment, and the jury
Court of Appeals of Indiana | Memorandum Decision 65A01-1501-CR-29 | August 25, 2015 Page 4 of 8 was instructed as to the applicable law. At the conclusion of the trial, the jury
found Mattingly guilty as charged.
[11] On December 19, 2014, a sentencing hearing was conducted. The trial court
entered judgments of conviction against Mattingly at that time, and sentenced
him to twenty six years imprisonment for each count of Dealing in
Methamphetamine and twenty months imprisonment for Maintaining a
Common Nuisance, with all the terms running concurrent with one another.
This yielded an aggregate term of imprisonment of twenty six years.
[12] This appeal ensued.
Discussion and Decision [13] Mattingly raises for our review the sole question of whether the state adduced
sufficient evidence to rebut his affirmative defense of entrapment. We review a
claim of entrapment under the same standard that applies to other sufficiency
challenges. Griesemer v. State, 26 N.E.3d 606, 608 (Ind. 2015). Thus, we do not
reweigh evidence or reassess the credibility of witnesses. Id. We look to the
probative evidence supporting the verdict and the reasonable inferences drawn
therefrom. Id. If a reasonable trier of fact could infer beyond a reasonable
doubt that the defendant was guilty, we will affirm the defendant’s conviction.
Id.
[14] In Indiana, the affirmative defense of entrapment is defined by statute:
(a) It is a defense that: Court of Appeals of Indiana | Memorandum Decision 65A01-1501-CR-29 | August 25, 2015 Page 5 of 8 (1) the prohibited conduct of the person was the product of a law enforcement officer, or his agent, using persuasion or other means likely to cause the person to engage in the conduct; and
(2) the person was not predisposed to commit the offense.
(b) Conduct merely affording a person an opportunity to commit the offense does not constitute entrapment.
I.C. § 35-41-3-9.
[15] Entrapment need not be formally pled. Griesemer, 26 N.E.3d at 609. “[R]ather,
it is raised, often on cross-examination of the State’s witnesses, by affirmatively
showing the police were involved in the criminal activity and expressing an
intent to rely on the defense.” Id. Once entrapment has been raised, “[t]he
State then has the opportunity for rebuttal, its burden being to disprove one of
the statutory elements beyond a reasonable doubt.” Id. There is no entrapment
if the State shows either (1) there was no police inducement, or (2) the
defendant was predisposed to commit the crime. Id. The entrapment defense
exists because “we do not tolerate government activity that lures an otherwise
law-abiding citizen to engage in crime. After all, the job of law enforcement is
to catch established criminals, not manufacture new ones.” Id. (citations
omitted).
[16] Mattingly contends that there was a failure of proof as to the second element of
entrapment, predisposition. Whether a defendant was predisposed to commit a
charged crime is a question for the trier of fact. Turner v. State, 993 N.E.2d 640, Court of Appeals of Indiana | Memorandum Decision 65A01-1501-CR-29 | August 25, 2015 Page 6 of 8 644 (Ind. Ct. App. 2013), trans. denied. “A jury may properly find
predisposition from such circumstances as familiarity with drug jargon and
prices, engaging in multiple transactions, and undertaking to arrange future
transactions.” Id.
[17] Here, the State produced numerous items of evidence relevant to the question
of Mattingly’s predisposition. Mattingly twice manufactured
methamphetamine using supplies provided to Bowman by Posey County law
enforcement personnel. Video and audio recordings from the transactions on
February 9 and March 1, 2013 were introduced into evidence; the recordings
show Mattingly handing over methamphetamine to Bowman without objection
on both occasions. Bowman testified that when he asked Mattingly for
methamphetamine, Mattingly requested pseudoephedrine pills and lithium
batteries for the production process. Mattingly produced the methamphetamine
outside of Bowman’s presence, and on both occasions Mattingly called
Bowman several hours after obtaining the supplies to inform Bowman that the
manufacturing process was complete. Further, during his testimony at trial,
Mattingly testified to his knowledge of the methamphetamine production
process; explained how he was able to improve the quality of the
methamphetamine he produced on March 1, 2013, and stated that he wanted to
improve the quality of the drug because he wanted to impress Bowman; and
demonstrated knowledge of terminology related to quantities and prices for
methamphetamine, as well as knowledge about the salability of poorly
produced methamphetamine. See id.
Court of Appeals of Indiana | Memorandum Decision 65A01-1501-CR-29 | August 25, 2015 Page 7 of 8 [18] Simply put, there was sufficient evidence from which a reasonable jury could
conclude beyond a reasonable doubt that the State had rebutted Mattingly’s
claim of entrapment. We accordingly affirm Mattingly’s convictions.
[19] Affirmed.
Baker, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 65A01-1501-CR-29 | August 25, 2015 Page 8 of 8