Freddie Boggess v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: August 21, 2012
• Docket: 75A03-1112-CR-581
• Status: Unpublished

Opinion

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MEMORANDUM DECISION - NOT FOR PUBLICATION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.

2 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

3 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

4 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.

5 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. 6 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,

7 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

8 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

9 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. 10 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.