Jason L. Swope v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: December 4, 2014
• Docket: 12A02-1403-CR-155
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing Dec 04 2014, 9:20 am

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MARK SMALL GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana

CHANDRA K. HEIN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

JASON L. SWOPE, ) ) Appellant-Defendant, ) ) vs. ) No. 12A02-1403-CR-155 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE CLINTON SUPERIOR COURT The Honorable Justin H. Hunter, Judge Cause No. 12D01-1310-FB-992

December 4, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge Case Summary

Jason L. Swope appeals his convictions for class B felony dealing in

methamphetamine and class D felony possession of chemical reagents or precursors with

intent to manufacture a controlled substance. He argues that the charging informations were

inadequate, that the trial court abused his discretion in denying his motion to suppress

evidence seized from his apartment and in excluding documents purportedly showing that he

was no longer in possession of the apartment from which the evidence was seized, and that

the evidence is insufficient to support his convictions. We conclude that Swope did not

preserve his challenge to the adequacy of the charging informations because he failed to file

a motion to dismiss them. We likewise conclude that Swope waived his claim that the

evidence seized from his apartment was improperly admitted because he failed to object to

the evidence at trial. We also conclude that the trial court did not abuse its discretion in

excluding Swope’s documents and that the evidence is sufficient to support his convictions.

Therefore, we affirm.

Facts and Procedural History

The evidence most favorable to the convictions follows. On September 30, 2013,

Swope asked William Lawson to drive him to Lafayette. Swope wanted to buy Sudafed to

make meth. Over the past two years, Lawson had taught Swope how to make meth and had

supplied him with the ingredients to make meth. Lawson drove his silver Mazda pickup

truck to Swope’s apartment at 552 South Columbia Street in Frankfort. Lawson had been to

Swope’s apartment several times before. Lawson went to the same apartment he had in the

2 past and knocked on the door. Swope opened the door, and Lawson smelled anhydrous

ammonia, which he knew was a chemical used to make meth.

Lawson and Swope drove to Lawson’s residence. There, they each smoked their own

meth. Lawson and Swope then drove to Lawson’s girlfriend’s place. Lawson parked on the

street. Swope left, and Lawson sat in the truck for about an hour. Swope returned with

Aaron and Paige Shafer. Paige had agreed to buy Sudafed. Paige and Aaron rode in the

front of the truck with Lawson, and Swope rode in the truck bed, which was covered by a

camper shell. They went to a few pharmacies, but none of them had the right type of

Sudafed. Swope told Lawson that he was in a hurry to get home because he had left

“muriatic acid near an already cooked [meth] lab.” Tr. at 291. Paige bought a package of

Sudafed at a West Lafayette Walgreens.

West Lafayette Police Officer Jeffrey Spicer received a dispatch that a female, later

identified as Paige, had come into the West Lafayette Walgreens, asked about Sudafed, left

the pharmacy to talk to two men in a pickup truck, and then came back in the store and

bought Sudafed. Officer Spicer saw a truck that matched the description he received leaving

the Walgreens parking lot. He observed that the truck did not have a functioning license

plate light and pulled the truck over.

Officer Spicer collected identification from Lawson, Paige, and Aaron. He observed a

fourth person, Swope, in the truck bed. While Officer Spicer spoke to Swope, West

Lafayette Police Officer Jonathan Morgan observed Aaron making furtive gestures with his

hands. Officer Morgan asked Aaron to stop. When Aaron failed to comply, Officer Morgan

3 asked the occupants to get out of the truck. As they were getting out, Officer Morgan saw a

bag containing a white substance, later identified as meth, lying on the floorboard near the

passenger seat. Lawson, Paige, Aaron, and Swope were transported to the police station and

interviewed.

West Lafayette Police Department Detective John Eager interviewed Swope. Swope

told Detective Eager that he lived at 552 South Columbia Street, apartment 4 in Frankfort.

Detective Eager also interviewed Lawson, who admitted that the meth found in the truck was

his. He explained that Swope gave him the meth in repayment for things that Lawson had

given him, including lye, an ice pack, and Coleman fuel to make meth. Lawson also told

Detective Eager that there was a one-pot meth lab in Swope’s apartment. Id. at 306. Meth is

made with “volatile” and “flammable” ingredients, and the manufacture of meth may result

in explosions and fires. Id. at 394, 396, 399. Due to the exigent nature of Lawson’s

information, Detective Eager contacted Frankfort Police Department Detective William

Hackerd, who in turn sent police to 552 South Columbia Street, apartment 4.

Frankfort Police Department Detective Van Jason Albaugh arrived at the scene and

kicked in the door to apartment 4. He was immediately overcome by the odor of a meth lab.

He did not enter because he knew it was a “very dangerous situation for someone to go in

without proper [] respirators.” Id. at 333. Firefighters in safety gear entered the apartment to

assist anyone inside and to stabilize any hazards. The police evacuated the entire apartment

building.

4 Detective Hackerd arrived and entered apartment 4. He saw a bottle of muriatic acid

sitting next to a bottle with residue from a one-pot meth lab. Id. at 375. The Indiana State

Police Hazmat Team arrived to photograph the scene and remove the evidence. Id. at 364.

In addition to the aforementioned items seen by Detective Hackerd, State Trooper Brock

Russell recovered isopropyl rubbing alcohol, a box of pseudoephedrine, several two-liter

bottles containing meth residue, a glass jar containing a plastic tube and meth residue, and a

digital scale, all of which are used to make meth. Id. at 414-19, 421-22. Based on this

evidence as well as his training and experience, Trooper Russell was certain that someone

had manufactured meth in apartment 4. Id. at 431. There was also a picture frame on the

wall displaying photographs of Swope. Id. at 415; State’s Ex. 10.

The State charged Swope with class B felony dealing in methamphetamine and class

D felony possession of chemical reagents or precursors with intent to manufacture a

controlled substance. Swope moved to suppress the evidence found in his apartment, which

he argued had been seized in violation of his federal constitutional rights against

unreasonable search and seizure. The trial court denied his motion. At trial, Swope did not

object to the evidence. Swope offered two documents that purportedly showed that he had

been evicted from apartment 4 and had vacated the apartment at the time of the alleged

offenses. Defendant’s Exs. A and B. The trial court excluded both documents. Id. at 454.

A jury found Swope guilty as charged. He appeals.

5 Discussion and Decision

Section 1 – Charging Informations

Swope argues that the charging informations failed to comply with Indiana Code

Section 35-34-1-2, which provides in relevant part, “The indictment or information shall be

in writing and allege the commission of an offense by: … (7) stating the place of the offense

with sufficient particularity to show that the offense was committed within the jurisdiction of

the court where the charge is to be filed.” The State asserts that Swope waived this claim of

error because he did not file a motion to dismiss. We agree with the State.

“‘The proper method to challenge deficiencies in a charging information is to file a

motion to dismiss the information, no later than twenty days before the omnibus date.’”

Leggs v. State, 966 N.E.2d 204, 207 (Ind. Ct. App. 2012) (quoting Miller v. State, 634 N.E.2d

57, 60 (Ind. Ct. App. 1994)); Ind. Code §§ 35-34-1-4, 35-34-1-6. “Generally, a failure to

challenge a defective charging information by way of a motion to dismiss before the trial

court waives any such challenge on appeal.” Neff v. State, 915 N.E.2d 1026, 1030 (Ind. Ct.

App. 2009), aff’d on reh’g, 922 N.E.2d 44, 45 (Ind. Ct. App. 2010), trans. denied.

Swope claims that Section 35-34-1-2 itself refers to “jurisdiction,” and a jurisdictional

issue may be raised anytime. It is true that subject matter jurisdiction may not be waived.

Truax v. State, 856 N.E.2d 116, 122 (Ind. Ct. App. 2006). But Swope’s claim is not a

challenge to the trial court’s subject matter jurisdiction. Subject matter jurisdiction is the

power of a court to hear and decide the general class of actions to which a particular case

belongs. K.S. v. State, 849 N.E.2d 538, 542 (Ind. 2006). Swope is not claiming that the

6 Clinton Superior Court does not have the authority to adjudicate criminal cases. Rather, he is

challenging the adequacy of the charging informations in stating the places where the

offenses occurred. This is an alleged procedural error which does not implicate subject

matter jurisdiction. Id. at 541-42. Because Swope failed to file a motion to dismiss the

charging informations, we conclude that he has waived his challenge to their adequacy.

Section 2 – Admission of Evidence

Swope contends that the trial court erred in denying his motion to suppress the

evidence found in his apartment. He asserts that the evidence was seized in violation of the

protection against unreasonable search and seizure guaranteed by the Fourth Amendment of

the U.S. Constitution. However, Swope did not object to the evidence at trial. “A

contemporaneous objection at the time the evidence is introduced at trial is required to

preserve the issue for appeal, whether or not the appellant has filed a pretrial motion to

suppress.” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). “The purpose of this rule is to

allow the trial judge to consider the issue in light of any fresh developments and also to

correct any errors.” Id. Therefore, Swope did not preserve his challenge to the admissibility

of the evidence.

“A claim that has been waived by a defendant’s failure to raise a contemporaneous

objection can be reviewed on appeal if the reviewing court determines that a fundamental

error occurred.” Id. The fundamental error rule is “extremely narrow” and applies “only

when the record reveals a clearly blatant violation of basic and elementary principles, where

the harm or potential for harm cannot be denied, and which violation is so prejudicial to the

7 rights of the defendant as to make a fair trial impossible.” Jewell v. State, 887 N.E.2d 939,

942 (Ind. 2008). “But an error in ruling on a motion to exclude improperly seized evidence is

not per se fundamental error.” Brown, 929 N.E.2d at 207. See also Swinehart v. State, 268

Ind. 460, 466-67, 376 N.E.2d 486, 491 (1978) (“That the evidence may have been obtained in

violation of the defendant’s constitutional rights to be protected against unlawful search and

seizure does not elevate the issue to the status of fundamental error that may be raised for the

first time on appeal.”). Our supreme court has stated that the fundamental error exception

may be applicable to the improper admission of illegally seized evidence where there is a

“claim of fabrication of evidence or willful malfeasance on the part of the investigating

officers,” or if the evidence “is not what it appears to be.” Id. Swope does not make any

such allegations. Accordingly, we conclude that there was no fundamental error.

Section 3 – Exclusion of Evidence

Swope next argues that the trial court abused its discretion in excluding his eviction

documents. One document was a June 24, 2013, writ of possession adjudging that J & S

Rentals was entitled to apartment 4 and ordering Swope to vacate the premises. Defendant’s

Ex. A. The other was a July 12, 2013, judgment stating that Swope had vacated the premises

and ordering him to pay J & S Rentals $2250. Defendant’s Ex. B. Both were certified

records from the Clinton Superior Court. The trial court excluded both documents because

they were inconsistent with evidence that Swope was still in possession of apartment 4 at the

time of the offenses. Tr. at 454.

8 The admission of evidence is within the trial court’s sound discretion and is

reviewable only for an abuse of that discretion. State v. Chavez, 956 N.E.2d 709, 712 (Ind.

Ct. App. 2011). A trial court abuses its discretion if its decision is clearly against the logic

and effect of the facts and circumstances before it. Id. In reviewing the trial court’s

decision, we do not reweigh the evidence, and we consider conflicting evidence most

favorable to the trial court’s ruling. Herron v. State, 991 N.E.2d 165, 168 (Ind. Ct. App.

2013), trans. denied. “However, we must also consider the uncontested evidence favorable

to the defendant.” Id. A trial court’s ruling on the admissibility of evidence will be upheld if

it is sustainable on any legal theory supported by the record. Gonser v. State, 843 N.E.2d

947, 949 (Ind. Ct. App. 2006).

Swope concedes that the documents are hearsay1 but argues that they were admissible

pursuant to Indiana Evidence Rule 803(15), which provides that the following is an exception

to the hearsay rule: “[a] statement contained in a document that purports to establish or

affect an interest in property if the matter stated was relevant to the document’s purpose -

unless later dealings with the property are inconsistent with the truth of the statement or the

purport of the document.” (Emphasis added.)

Here, Detective Eager testified that during Swope’s interview on October 1, 2013,

Swope told him that he lived at 552 South Columbia Street, apartment 4. Tr. at 234. Lawson

testified that he had been to Swope’s apartment on Columbia Street several times and that he

1 Hearsay is a statement that “(1) is not made by the declarant while testifying at the trial or hearing; and (2) is offered in evidence to prove the truth of the matter asserted.” Ind. Evidence Rule 801. Generally, hearsay is inadmissible. Ind. Evidence Rule 802.

9 went to the same apartment on September 30, 2013, and Swope answered the door. Id. at

273, 276. Franklin Police Officer Chad Walker testified that he knocked on the door of

apartment 4 on the night of August 13 or the early morning hours of August 14, 2013, and

Swope answered the door. Id. at 451-52. Trooper Russell testified that photographs of

Swope were hanging on the wall of the apartment. Id. at 415; State’s Ex. 10. Swope’s

argument is a request to reweigh the evidence, which we must decline. We find no abuse of

discretion in the trial court’s decision to exclude the eviction documents.

Section 4 – Sufficiency of the Evidence

Finally, Swope asserts that the evidence is insufficient to support his convictions. Our

standard of review is well settled:

[When] reviewing the sufficiency of the evidence needed to support a criminal conviction[,] ... we neither reweigh evidence nor judge witness credibility. We consider only the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence. We will affirm a conviction if there is substantial evidence of probative value such that a reasonable trier of fact could have concluded the defendant was guilty beyond a reasonable doubt.

Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008) (citations omitted).

To convict Swope of class B felony dealing in methamphetamine, the State was

required to prove beyond a reasonable doubt that Swope knowingly or intentionally

manufactured methamphetamine, pure or adulterated. Ind. Code § 35-48-4-1.1(a)(1);

Appellant’s App. at 20. To convict Swope of D felony possession of chemical reagents or

precursors with intent to manufacture a controlled substance, the State was required to prove

beyond a reasonable doubt that Swope possessed two or more chemical reagents or

precursors; specifically, ether, lithium metal, muriatic acid, sodium hydroxide, and

10 ammonium nitrate, with the intent to manufacture methamphetamine. Ind. Code § 35-48-4-

14.5(e); Appellant’s App. at 21.

Swope argues that the evidence against him consists entirely of Lawson’s testimony,

which he suggests was untrustworthy because Lawson wanted to avoid criminal charges.

First, even if Lawson’s testimony was the sole evidence against him, judging his credibility

was the province of the factfinder. Appellate courts do not judge the credibility of witnesses.

Second, Swope ignores the substantial evidence that he was living in apartment 4 and the

evidence showing the manufacture of meth and the ingredients used to make meth that police

found there. Swope’s argument invites us to reweigh the evidence, an undertaking outside

our authority. We conclude that the evidence is sufficient and therefore affirm Swope’s

convictions.

Affirmed.

RILEY, J., and MATHIAS, J., concur.