Douglas Allen Bergfeld v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 10, 2015
• Docket: 48A02-1503-CR-157
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Dec 10 2015, 8:24 am

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 David W. Stone, IV Gregory F. Zoeller Anderson, Indiana Attorney General of Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Douglas Allen Bergfeld, December 10, 2015 Appellant-Defendant, Court of Appeals Case No. 48A02-1503-CR-157 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Jason Childers, Appellee-Plaintiff. Judge Pro Tem Trial Court Cause No. 48C01-1303-FD-635 & 48C01- 1309-FD-1733

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 48A02-1503-CR-157 | December 10, 2015 Page 1 of 8 STATEMENT OF THE CASE

[1] Appellant-Defendant, Douglas Bergfeld (Bergfeld), appeals the revocation of his

probation and the imposition of his previously suspended sentences.

[2] We affirm.

ISSUE

[3] Bergfeld raises one issue on appeal, which we restate as follows: Whether the

trial court abused its discretion by ordering Bergfeld to serve his previously

suspended sentence after he violated the terms of his probation.

FACTS AND PROCEDURAL HISTORY

[4] On March 24, 2013, Bergfeld was charged under Cause Number 48C01-1303-

FD-635 (Cause FD-635) with Count I, operating a motor vehicle while

intoxicated, a Class A misdemeanor, Ind. Code § 9-30-5-2(b) (2013); and Count

II, operating a motor vehicle while intoxicated with a prior conviction, a Class

D felony, I.C. § 9-30-5-3 (2013). On September 13, 2013, Bergfeld was charged

under Cause Number 48C01-1309-FD-1733 (Cause FD-1733) with theft, a

Class D felony, I.C. § 34-43-4-2 (2013). On May 13, 2012, Cause FD-635 and

Cause FD-1733 were joined for the purposes of a plea agreement. On the same

day, Bergfeld entered a guilty plea to Class D felony operating a vehicle while

intoxicated with a prior conviction in Cause FD-635, and to Class D felony

theft in Cause FD-1733. On June 9, 2014, pursuant to the plea agreement, in

Cause FD-635, the trial court sentenced Bergfeld to the Department of

Correction (DOC), for thirty months, with twenty-four months in home Court of Appeals of Indiana | Memorandum Decision 48A02-1503-CR-157 | December 10, 2015 Page 2 of 8 detention and six months suspended to supervised probation. In Cause FD-

1733, the trial court sentenced Bergfeld to thirty months, with twelve months in

home detention and eighteen months suspended to supervised probation. The

sentences were to be served consecutively.

[5] On August 1, 2014, the Office of Madison County Home Detention filed a

probation violation in both Causes, stating that Bergfeld committed a battery

and had tested positive for alcohol on July 28, 2014, and on July 29, 2014. On

August 5, 2014, that probation violation was amended to further state that on

July 31, 2014, and on August 1, 2014, Bergfeld tested positive for alcohol with a

BAC of .042% and .064%, respectively. On September 8, 2014, the trial court

determined that Bergfeld had violated the terms of his probation and sanctioned

him by placing him on Sobrietor, an alcohol monitoring device. On February

3, 2015, another probation violation was filed claiming that Bergfeld’s Sobrietor

test results yielded positive alcohol readings on January 4, 2015, and January

14, 2015. A urine test that was also conducted on January 14, 2015, tested

positive for alcohol. In addition, the probation violation stated that on January

14, 2015, Bergfeld had submitted diluted urine for a drug screen, and on

January 31, 2015, Bergfeld had committed three new offenses—manufacturing

methamphetamine, maintaining a common nuisance, and possessing chemical

reagents or precursors.

[6] At a revocation hearing held on March 2, 2015, when explaining why he had

tested positive for alcohol in January 2015, Bergfeld stated that he was sick with

a cold and was taking “Nyquil and some kind of cough syrup.” (Transcript p.

Court of Appeals of Indiana | Memorandum Decision 48A02-1503-CR-157 | December 10, 2015 Page 3 of 8 7). Bergfeld denied adulterating his urine for the alcohol screen or committing

the new offenses.

[7] The State presented evidence of Bergfeld’s failed Sobrietor test results, as well as

the laboratory analysis establishing alcohol in Bergfeld’s urine. With respect to

the alleged new offenses, the State presented evidence that in the early morning

hours of January 31, 2015, Bergfeld’s son contacted the Anderson Police

Department reporting that Bergfeld had requested that he buy ephedrine, which

is used in the manufacturing of methamphetamine. Officer Daron Granger

(Officer Granger) and another officer were sent to Bergfeld’s home at 703

Ruddle Avenue in Anderson, Indiana. Officer Granger testified that upon

entering Bergfeld’s home, he noticed a strong chemical odor associated with the

manufacturing of methamphetamine. There was an unidentified female and

another man, referred to as B.J., present in the home. Officer Granger stated

that he established that Bergfeld and B.J. were the residents. Bergfeld occupied

one bedroom, while B.J. occupied the middle bedroom. There was a third

bedroom, but it remained unoccupied. Officer Granger indicated that the living

room, kitchen, and bathrooms were common areas.

[8] A further search revealed remnants of a meth lab in the bathroom and in the

back of the house. A subsequent search by the Madison County Drug Task

Force led to the recovery of items associated with the manufacturing of

methamphetamine in the access panel for the bathroom plumbing pipes.

Officer Granger testified that Bergfeld had at first denied the operation of a

meth lab but later admitted that he was aware of it; however, Bergfeld denied

Court of Appeals of Indiana | Memorandum Decision 48A02-1503-CR-157 | December 10, 2015 Page 4 of 8 any involvement in the manufacturing of methamphetamine. At the conclusion

of the hearing, the trial court found that Bergfeld had violated his probation for

testing positive for alcohol on January 4 and January 14, 2015, and for

committing new criminal offenses on January 31, 2015. Accordingly, the trial

court revoked Bergfeld’s supervised probation both in Cause FD-635 and FD-

1733. For Cause FD-635, the trial court ordered Bergfeld to serve the

remainder of his 910 days in Madison County Work Release. With respect to

Cause FD-1733, the trial court ordered Bergfeld to serve the rest of his 910 days

in the DOC. Bergfeld’s sentences were to be served consecutively.

[9] Bergfeld now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

[10] Bergfeld claims that the trial court abused its discretion by revoking his

probation. It is well established that probation is a favor granted by the State

and is not a right to which a criminal defendant is entitled. Sparks v. State, 983

N.E.2d 221, 224 (Ind. Ct. App. 2013). The decision to revoke probation lies

within the sound discretion of the trial court. Id. Thus, a trial court’s decision

to revoke probation and its subsequent sentencing decision are reviewed for an

abuse of discretion. Id.

[11] Once a trial court has concluded that probation has been violated, it may

continue the defendant on probation, extend the probationary period for not

more than one year beyond the original period, or order all or part of the

previously-suspended sentence to be executed. Ind. Code § 35-38-2-3 (2014).

Court of Appeals of Indiana | Memorandum Decision 48A02-1503-CR-157 | December 10, 2015 Page 5 of 8 [12] Bergfeld alleges that the positive alcohol results were based on his use of cold

medicine. Even accepting Bergfeld’s explanation, we remain disinclined to

accept his argument. We note that there are other cold medicines on the

market that do not contain alcohol, and his attempt to fabricate an explanation

for his consumption of alcohol through Nyquil or other cold medicines suggests

a consciousness of guilt and an attempt to conceal the prohibited behavior. The

terms of Bergfeld’s probation overtly required him not to “consume alcohol . . .

of any type.” (Appellant’s App. p. 120). On January 4, 2015, and January 14,

2015, Bergfeld’s Sobrietor tests produced positive alcohol readings. In addition,

Bergfeld’s urine submitted on January 14, 2015, yielded a positive alcohol

reading. The affidavit sworn by the toxicologist stated that “Bergfeld would

have had to use [] or ingest a substance containing ethyl alcohol sometime in

the five days prior to the urine collection.” (State’s Exh. 1).

[13] With regards to Bergfeld’s new methamphetamine related offenses, Bergfeld

argues that two other people lived in his house, and the State had failed to

present evidence that he constructively possessed the meth apparatus or

precursors recovered in his home. We disagree. In order to prove constructive

possession, the State must prove the defendant had the intent and capability to

maintain dominion and control over the contraband. Lampkins v. State, 682

N.E.2d 1268, 1275 (Ind. 1997), modified on reh’g on other grounds, 685 N.E.2d

698 (Ind. 1997). To prove intent to maintain dominion and control, there must

be additional circumstances supporting the inference of intent. Id. Proximity to

contraband in plain view is one such circumstance. Id. Constructive possession

Court of Appeals of Indiana | Memorandum Decision 48A02-1503-CR-157 | December 10, 2015 Page 6 of 8 may also be proven by a defendant’s incriminating statements, attempted flight

or furtive gestures, or the comingling of contraband with other items the

defendant owns. Henderson v. State, 715 N.E.2d 833, 835-36 (Ind. 1999).

[14] When the officers arrived at Bergfeld’s residence, they noticed a strong

chemical odor associated with the manufacturing of methamphetamine. The

record shows that Bergfeld occupied one room, whereas B.J. occupied another.

One of the bedrooms remained unoccupied. The search revealed items

associated with the manufacturing of meth in the back of the residence, and that

part was accessible only from the unused bedroom which was connected to

B.J.’s bedroom. Even assuming that Bergfeld did not have access to the back of

the residence, a further search revealed precursors in a crawlspace next to the

bathroom, and trash indicating the presence of a meth lab. The bathroom was

a common area, and nothing suggests that Bergfeld did not have access to the

precursors. Moreover, Bergfeld’s knowledge that his house was being used as a

meth lab, coupled with the fact that his son suspected and reported to law

enforcement that he was manufacturing methamphetamine, supports the

inference that some—if not all—of the precursors found at his residence

constructively belonged to him.

[15] Lastly, we recognized the trial court’s leniency in this matter. After Bergfeld

tested positive for alcohol in 2014, the trial court placed him on an alcohol

monitoring device. Despite the trial court’s mercy, Bergfeld violated his

probation again by testing positive for alcohol in January 2015, and for

committing new offenses. The foregoing facts demonstrate Bergfeld’s disregard

Court of Appeals of Indiana | Memorandum Decision 48A02-1503-CR-157 | December 10, 2015 Page 7 of 8 for court orders and the probation system. Accordingly, we affirm the trial

court’s order revoking Bergfeld’s probation.

CONCLUSION

[16] Based on the foregoing, we conclude that the trial court did not abuse its

discretion in revoking Bergfeld’s probation.

[17] Affirmed.

[18] Brown, J. and Altice, J. concur

Court of Appeals of Indiana | Memorandum Decision 48A02-1503-CR-157 | December 10, 2015 Page 8 of 8