Hatcher v. State

762 N.E.2d 170, 2002 Ind. App. LEXIS 132, 2002 WL 123625

• Court: Indiana Court of Appeals
• Decided: January 31, 2002
• Docket: 65A01-0104-CR-155
• Status: Published

Opinions

OPINION

MATTINGLY-MAY, Judge.

William E. Hatcher appeals his convietion of dealing in a schedule II controlled substance.¹ He raises three issues, which we consolidate and restate as two:

1. Whether the State was required to prove Hatcher had manufactured methamphetamine for the use of another; and

2. Whether the trial court erred in overruling Hatcher's motion for a mistrial after a defense witness testified about the contents of a note that had not been produced in response to a discovery motion.

We affirm.

FACTS AND PROCEDURAL HISTORY

In November of 2000, Hatcher asked his former brother-in-law, Jason Hertel, if he could stay in Jason's basement for a short time. Jason agreed and gave Hatcher a key to a door that led to the basement. On November 18, 2000, Jason's father Clarence received a telephone call from one of Jason's neighbors, who told him something was going on at his son's house. When Clarence arrived at the house and opened the basement door, he smelled anhydrous ammonia and ether. An unidentified man and woman came up the basement stairs and left the house. Hatcher, carrying a small cooler, a sack and a shotgun, also came up the basement stairs and left. Clarence called the police.

When the police arrived, they found evidence of an operating methamphetamine lab. They also found methamphetamine. They estimated that at least eighteen batches of methamphetamine had been prepared in the basement.

DISCUSSION AND DECISION

1. Manufacture of a Schedule II Controlled Substance

Hatcher contends that he cannot be convicted of dealing methamphetamine, as the State failed to prove he had manufactured it for the use of another. Indiana Code § 35-48-4-2(a)(1) provides that a person is guilty of dealing in a schedule II controlled substance if he knowingly or intentionally manufactures methamphetamine. Hatcher contends that "manufacture" as defined in Ind.Code § 35-48-1-18 requires the State prove the methamphetamine was not manufactured for his own use.² This code section defined "manufacture" as:

(1) 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. It does not include the preparation or compounding of a controlled substance by an individual for his own use or the preparation, compounding, packaging, or labeling of a controlled substance:

(A) by a practitioner as an incident to his administering or dispensing of a controlled substance in the course of his professional practice; or

(B) by a practitioner, or by his authorized agent under his supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis and not for sale[.]

(Emphasis supplied.)

This is a case of first impression. Whether the legislature intended to create an exception for individuals who manufacture methamphetamine for their own use is a matter of statutory interpretation, which is the province of the judiciary. Ad Craft, Inc. v. Board of Zoning Appeals of Evansville and Vanderburgh County, 693 N.E.2d 110, 113 (Ind.Ct.App.1998); Indiana Dep't of Natural Resources v. Town of Syracuse, 686 N.E.2d 410, 411 (Ind.Ct.App.1997).

The primary goal of statutory interpretation is to give effect to the intention of the legislature. Town of Syracuse, 686 N.E.2d at 412. This is accomplished by examining the statutory language. Meier v. American Maize-Products Co., Inc., 645 N.E.2d 662, 667 (Ind.Ct.App.1995). Words from a particular section of the statute may not be construed in isolation but must be viewed in the context of the entire act. Town of Syracuse, 686 N.E.2d at 412. "We presume that the legislature intended its language to be applied in a logical manner consistent with the statute's underlying policy and goals." Id. Further, "we do not presume that the legislature intended language used in the statute to be applied illogically or to bring about an unjust or absurd result[.]" Riley v. State, 711 N.E.2d 489, 495 (Ind.1999). We must also strictly construe penal statutes against the state to avoid enlarging them beyond the fair meaning of the language used. See State v. Rans, 739 N.E.2d 164, 166 (Ind.Ct.App.2000), trans. denied 753 N.E.2d 4 (Ind.2001).

Methamphetamine is a Schedule II controlled substance. In 1999, the legislature enacted Ind.Code § 35-48-4-14.5, possession of chemical reagents or precursors with intent to manufacture, which allows an individual to be found guilty of a Class D felony if he or she is found in possession of two or more of the reagents that go into the manufacture of methamphetamine. The legislature could not have intended to enact a statute allowing one to be subjected to eriminal liability for possession of the ingredients of methamphetamine, but to be excluded from liability if the ingredients were used to manufacture the finished product.

We further note that the legislature amended the statutory definition of "manufacture" effective July 1, 2001, to delete the exelusion for "the preparation or compounding of a controlled substance by an individual for his own use." It is a "fundamental rule of statutory construction" that such an amendment raises the presumption that the legislature intended to change the law unless it clearly appears that the amendment was passed in order to express the original intent more clearly. United Nat. Ins. Co. v. DePrizio, 705 N.E.2d 455, 460 (Ind.1999). We believe this amendment undoubtedly was passed in order to more clearly express the original intent of the legislature.

The exelusion in Ind.Code § 35-48-1-18 as originally promulgated might have been meant to apply to those unfortunate individuals who, because of their health, are foreed to put together their own medication. It could not have been intended to apply to those people who decide to manufacture methamphetamine-a drug the manufacturing process of which is inherently dangerous-in their basements. "[Olne cannot commit the felony of manufacturing methamphetamine without possessing at least some hazardous substances; without using, pouring and mixing those substances; or without applying heat. Thus, manufacturing methamphetamine by its very nature, cannot be committed without creating a substantial risk that someone will be killed." People v. James, 62 Cal.App. 4th 244, 270-71, 74 Cal.Rptr.2d 7 (1998), citation and quotation marks omitted. To find otherwise would lead to an absurd result.

There was sufficient evidence that Hatcher was guilty of dealing in a schedule II controlled substance even if the evidence did not support a finding Hatcher manufactured the methamphetamine for a purpose other than his own use.

2. Motion for Mistrial

Hatcher called his ex-wife, Charlotte, to testify. During her cross-examination, the State asked Charlotte about a note Hatcher had left for her. Apparent ly, a police officer executing a search warrant at Charlotte's house saw a note that said, in effect, that Hatcher loved her and the children and was sorry. The officer who saw the note did not take it, and it was not entered into evidence. Its existence was not disclosed to Hatcher during discovery. | f '

Hatcher objected to testimony about the note, arguing that the jury would not "construe that note in any other fashion than a confession." (Tr. at 222.) He requested a mistrial, arguing that the State had violated discovery. The trial court denied the mistrial motion and gave the following admonition to the jury:

Members of the jury, you are instructed that there is no evidence in this case as to when the note referred to by Mrs. Hatcher was written, nor as to why it was written. You must not consider any testimony or reference to this note for any purpose and you must not assess any prejudice against Mr. Hatcher based on this note.

(Tr. at 227-28.) Hatcher argues that this was insufficient, and the mistrial should have been granted.

Whether to grant a mistrial is within the trial court's discretion. Norcutt v. State, 633 N.E.2d 270, 272 (Ind.Ct.App.1994). To succeed on appeal from the denial of a mistrial, a defendant must demonstrate that the conduct in question was so prejudicial that the defendant was placed in a "position of grave peril to which he should not have been subjected." Id. at 272-78. The gravity of the peril is determined by considering the probable persuasive effect of the misconduct on the jury's decision. Id. at 278. A mistrial is an extreme remedy that should not be routinely granted. Id.

Even if there was a discovery violation,³ an admonition is presumed to cure any error resulting from the admission of evidence, and juries are presumed to follow instructions to disregard such evidence. Stephenson v. State, 742 N.E.2d 463, 483 (Ind.2001). Because of the substantial evidence against Hatcher, which evidence included his fingerprints on the items used in the manufacture of methamphetamine from the basement and testimony connecting Hatcher with the manufacturing utensils, the prejudicial effect of the testimony about the contents of the note was minimal.

Affirmed.

BARNES, J., concurs. SULLIVAN, J., concurring in result with opinion.

1 . Ind.Code § 35-48-4-2(a)(1).

2 . The statute was amended in 2001 to delete the language on which Hatcher relies. Hatcher also argues that the court improperly refused to instruct the jury with respect to the definition of manufacture. Because we find the statutory definition could not have been intended to permit the manufacture of methamphetamine for personal use, we need not address that argument.

3 . Because we find the judge's admonition to the jury was adequate, we do not address whether a discovery violation can arise from the State's failure to disclose an item that is not offered into evidence and that is introduced through the testimony of a defendant's own witness.