MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 19 2016, 6:24 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Tara Coats Hunt Gregory F. Zoeller Johanna D. Rippey Attorney General of Indiana Salem, Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Leah S. Fink, October 19, 2016 Appellant-Defendant, Court of Appeals Case No. 31A01-1510-CR-1704 v. Appeal from the Harrison Superior Court State of Indiana, The Honorable Joseph L. Appellee-Plaintiff. Claypool, Judge The Honorable Frank Newkirk, Jr., Special Judge Trial Court Cause No. 31D01-1108-FB-688
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 31A01-1510-CR-1704 | October 19, 2016 Page 1 of 13 [1] Leah Fink appeals, on sufficiency grounds, her convictions for class B felony
dealing in methamphetamine and class D felony possession of chemical
reagents or precursors with intent to manufacture methamphetamine.
Additionally, she challenges the ten-year advisory sentence imposed for her
dealing conviction, contending that the trial court abused its discretion by
failing to consider certain mitigating factors and that the sentence is
inappropriate in light of her character and the nature of the offense.
[2] We affirm.
Facts & Procedural History
[3] On August 15, 2011, Michael Marshall, working as a confidential informant for
the Harrison County Sheriff’s Department, participated in a controlled buy that
was audio/video recorded. He called and arranged to purchase one gram of
methamphetamine for $100 at Fink’s home in Corydon. Jeremy Ripperdan
was Fink’s boyfriend at the time and often stayed at her home. Marshall knew
both Fink and Ripperdan.
[4] When Marshall arrived that evening, Fink answered the door and let him in.
Marshall immediately smelled a very strong chemical odor, which he associated
with a “shake and bake meth lab.” Transcript at 126. Ripperdan told Fink to
send Marshall upstairs. Ripperdan met Marshall on the stairs holding an active
meth lab. The two men went to the small upstairs area to continue with the
manufacturing process, while Fink stayed downstairs. On two separate
occasions Ripperdan directed Marshall to obtain necessary items from Fink.
Court of Appeals of Indiana | Memorandum Decision 31A01-1510-CR-1704 | October 19, 2016 Page 2 of 13 She provided Marshall with glue sticks and tubing, which were then used in the
manufacturing process. Ripperdan and Marshall eventually came down to the
kitchen to finish the process using the oven. Although Fink was not involved in
the majority of the manufacturing process that evening, she was aware that it
was occurring and was “actively involved” in providing materials for the
process. Id. at 128. Marshall eventually left the home with a portion of the
finished product that he obtained from Ripperdan in exchange for the $100 in
buy money.
[5] After the controlled buy, law enforcement sought and obtained a search
warrant for Fink’s home. The warrant was executed in the early morning hours
of August 16, 2011. During the execution of the warrant, officers located an
active meth lab in a closet under the stairwell consistent with the shake-and-
bake or one-pot method. The vessel contained organic solvents and lithium.
Items associated with the production and use of methamphetamine were found
throughout the small house, in an outbuilding, and in a burn bin outside the
house. Officers found an open cold pack that contained ammonium nitrate,
burned blister packs of pseudoephedrine, burned lithium battery remnants,
drain opener containing sodium hydroxide, muriatic acid, plastic tubing, an
HCL generator, coffee filters with white residue found both upstairs and in the
bedroom, a glass pipe with white residue, and glass jars with white residue.
Inside Fink’s purse officers found marijuana, methamphetamine, syringes, a
straw, rolling paper, nylon rope, and scissors. Fink’s wallet also contained
three receipts for purchases of pseudoephedrine. The two most recent
Court of Appeals of Indiana | Memorandum Decision 31A01-1510-CR-1704 | October 19, 2016 Page 3 of 13 purchases were about seven hours apart on the same day, August 5, 2011, at
stores in Indiana and Kentucky.1
[6] On August 18, 2011, the State charged Fink with seven counts: Count I, class
B felony dealing in methamphetamine; Count II, class D felony possession of
methamphetamine; Count III, class D felony maintaining a common nuisance;
Count IV, class D felony possession of a hypodermic needle; Count V, class D
felony possession of chemical reagents or precursors with the intent to
manufacture controlled substances; Count VI, class A misdemeanor possession
of marijuana; and, Count VII, class A misdemeanor possession of marijuana.
After numerous continuances, Fink’s jury trial was held on August 19 and 20,
2015. Fink acknowledged, through counsel, that she was a drug user who
committed Counts II, III, IV, VI, and VII. Fink contested only Counts I and V,
which involved manufacturing of methamphetamine. The jury found Fink
guilty on all counts.
[7] At the conclusion of the sentencing hearing on September 24, 2015, the trial
court sentenced Fink to concurrent terms of ten years for Count I with two
years suspended to probation, 545 days for each of Counts II through V, and
365 days for Counts VI and VII. Thus, Fink received an aggregate sentence of
1 Ripperdan testified that he did not recall if Fink provided the pseudoephedrine used in this particular manufacturing process. National purchase logs, maintained by NPLEx, revealed that Fink regularly purchased (about twice a month) pseudoephedrine in the nine months prior at various locations in Indiana and Kentucky. Based on her training and experience, Sergeant Katrina Smith testified that these purchases, though legal, raise a red flag to law enforcement.
Court of Appeals of Indiana | Memorandum Decision 31A01-1510-CR-1704 | October 19, 2016 Page 4 of 13 ten years in prison with eight executed and two suspended to probation. Fink
appeals her convictions on Counts I and V and the sentence imposed for Count
I. Additional facts will be provided below as needed.
Discussion & Decision
Sufficiency of the Evidence
[8] Our standard of review for sufficiency of the evidence claims is well settled.
We consider only the probative evidence and reasonable inferences supporting
the conviction. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not
assess the credibility of witnesses or reweigh evidence, and we will affirm unless
no reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt. Id. It is not necessary that the evidence overcome every
reasonable hypothesis of innocence; rather, the evidence will be found sufficient
if an inference may reasonably be drawn from it to support the conviction. Id.
at 147.
[9] With respect to Count I, dealing methamphetamine, Fink argues that the State
failed to present sufficient evidence under its theory of accomplice liability. She
asserts that, at best, the State proved that she was present in her home while
Ripperdan manufactured methamphetamine with her knowledge.
[10] In relevant part, Ind. Code § 35-48-4-1.1(a)(1) provides that a person who
knowingly or intentionally manufactures methamphetamine commits dealing in
methamphetamine. Here, the State sought to convict Fink as an accomplice.
Court of Appeals of Indiana | Memorandum Decision 31A01-1510-CR-1704 | October 19, 2016 Page 5 of 13 To do so, the State needed to prove that Fink knowingly or intentionally aided
Ripperdan in manufacturing methamphetamine. See Ind. Code § 35-41-2-4.
There is no separate crime of being an accessory or aiding and abetting the
perpetrator of a crime; rather a defendant may be convicted as a principal upon
evidence that he aided or abetted in the perpetration of the charged crime.
Sanquenetti v. State, 727 N.E.2d 437, 441 (Ind. 2000). Under Indiana law, an
individual who aids another person in committing a crime is as guilty as the
actual perpetrator, and one may be charged as a principal yet convicted as an
accomplice. Id. Further, the accomplice need not participate in each and every
element of the crime in order to be convicted of it. Vandivier v. State, 822
N.E.2d 1047, 1054 (Ind. Ct. App. 2005), trans. denied.
[11] Although a defendant’s presence during the commission of the crime or her
failure to oppose the crime are, by themselves, insufficient to establish
accomplice liability, the jury may consider them along with other facts and
circumstances tending to show participation. Id. The jury may also consider
the defendant’s companionship with the one engaged in the crime and the
defendant’s actions before, during, and after the crime. Id. “In order to sustain
a conviction as an accomplice, there must be evidence of the defendant’s
affirmative conduct, either in the form of acts or words, from which an
inference of common design or purpose to effect the commission of a crime
may reasonably be drawn.” Id.
[12] We cannot agree with Fink that there is “no evidence of affirmative conduct by
[her] from which an inference could be drawn that her purpose was to aid in the
Court of Appeals of Indiana | Memorandum Decision 31A01-1510-CR-1704 | October 19, 2016 Page 6 of 13 commission of a crime.” Appellant’s Brief at 9. The evidence favorable to the
conviction establishes that Fink, on at least two separate occasions, provided
materials needed for the manufacturing process that night. Specifically, she
provided Marshall and Ripperdan with glue sticks and tubing. In addition to
her active participation, we note that the manufacturing process took place with
her knowledge in her home, and items used in the manufacturing process –
glass jars and coffee filters, both containing methamphetamine residue – were
found in her bedroom during the subsequent search. The State also presented
evidence that Fink was a regular purchaser of pseudoephedrine, a key
ingredient in the manufacturing process, and about a week before the instant
crime made two purchases on the same day but in two different states. While
the State could not affirmatively establish that these purchases were used in this
manufacturing process, the jury could consider this evidence and determine
what weight to give it. In light of all of the above evidence, the jury had ample
evidence to find Fink guilty of dealing methamphetamine.
[13] We now turn to the sufficiency of the evidence regarding Count V, possession
of chemical reagents or precursors with intent to manufacture a controlled
substance. The State alleged that Fink possessed ammonia nitrate, lithium
metal, and organic solvents, all statutorily defined as chemical reagents or
precursors. See I.C. § 35-48-4-14.5.
[14] With regard to Count V, the State was required to prove that Fink possessed
two or more chemical reagents or precursors with the intent to manufacture a
controlled substance. See I.C. § 35-48-4-14.5(e). Fink acknowledges that the
Court of Appeals of Indiana | Memorandum Decision 31A01-1510-CR-1704 | October 19, 2016 Page 7 of 13 State presented evidence at trial that police discovered ammonium nitrate in a
container in a garage/outbuilding, lithium metal in a burn barrel and in the
one-pot vessel found in a closet, and organic solvent found in the one-pot
vessel. Her sole challenge to her conviction on this count is that the State failed
to prove that she constructively possessed these items. In this regard, she
simply notes that she did not have exclusive control over the areas in which the
items were found and asserts that the State failed to establish that she had actual
knowledge of the presence of these items.
[15] Constructive possession occurs when a person does not have direct physical
control over the item but has “the intent and capability to maintain dominion
and 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)). Fink does
not argue that she did not have the capability to maintain dominion and control
over the precursors. Rather, her argument focuses only on intent.
[16] To prove the intent element, the State must demonstrate the defendant’s
knowledge of the presence of the contraband. Id. Where control over the
premises containing the contraband is non-exclusive, knowledge may be
inferred from evidence of additional circumstances pointing to the defendant’s
knowledge. Id. Such additional circumstances may include: “(1) incriminating
statements made by the defendant; (2) attempted flight or furtive gestures; (3) a
drug manufacturing setting; (4) proximity of the defendant to the contraband;
(5) the contraband being in plain view; and (6) the location of the contraband
being in close proximity to items owned by the defendant.” Harrison v. State, 32
Court of Appeals of Indiana | Memorandum Decision 31A01-1510-CR-1704 | October 19, 2016 Page 8 of 13 N.E.3d 240, 248 (Ind. Ct. App.), trans. denied. Further, a defendant can be
found to have jointly possessed contraband with another. Massey v. State, 816 at
989.
[17] The State presented evidence from which the jury could infer that Fink had
knowledge of the presence of the precursors on her property. The record is
replete with evidence that her home was a drug manufacturing setting and used
as such with Fink’s knowledge and involvement. Accordingly, Fink’s slender
sufficiency argument fails.
Sentencing
[18] With regard to sentencing, Fink initially contends that the trial court abused its
discretion when it failed to consider certain mitigating circumstances.
Specifically, she asserts that the trial court failed to consider her minimal role in
the manufacturing process, the fact that the crime was the result of
circumstances unlikely to recur, and the fact that she had already suffered an
extraordinary penalty in that she lost her ability to practice law.
[19] Sentencing decisions rest within the sound discretion of the trial court and are
reviewed on appeal for an abuse of discretion. Anglemyer v. State, 868 N.E.2d
482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. An abuse of discretion
occurs if the decision is clearly against the logic and effect of the facts and
circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom. Id. One way a trial court may be found to
have abused its discretion is by entering a sentencing statement that omits
Court of Appeals of Indiana | Memorandum Decision 31A01-1510-CR-1704 | October 19, 2016 Page 9 of 13 reasons clearly supported by the record and advanced for consideration. Id. at
490-91. When claiming on appeal that the trial court failed to identify or find a
mitigating circumstance, it is the defendant’s burden to establish that the
mitigating evidence is both significant and clearly supported by the record. Id.
at 493.
[20] Because a court may impose any sentence authorized by statute “regardless of
the presence or absence of aggravating circumstances or mitigating
circumstances,” a trial court is no longer obligated to weigh aggravating and
mitigating factors against each other when imposing a sentence. See Richardson
v. State, 906 N.E.2d 241, 243 (Ind. Ct. App. 2009). If the trial court finds the
existence of aggravating or mitigating circumstances, it must give a “statement
of the court’s reasons for selecting the sentence that it imposes.” Ind. Code §
35-38-1-3; see also Anglemyer, 868 N.E.2d at 491 (“trial court must enter a
sentencing statement that includes a reasonably detailed recitation of its reasons
for imposing a particular sentence”). On review, we may examine both the
written and oral sentencing statements to discern the findings of the trial court.
See Vaughn v. State, 13 N.E.3d 873, 890 (Ind. Ct. App. 2014), trans. denied.
[21] In this case, the trial court entered a detailed, thoughtful oral sentencing
statement followed by a written sentencing statement. It is apparent to us that
the trial court considered each of the proffered mitigating circumstances that
Fink now argues on appeal. Specifically, after observing that Fink’s conduct
was the result of an addiction that developed during a painful medical
Court of Appeals of Indiana | Memorandum Decision 31A01-1510-CR-1704 | October 19, 2016 Page 10 of 13 condition, the court acknowledged Fink’s minimal role in the crime.2 Cf. Roney
v. State, 872 N.E.2d 192, 205 (Ind. Ct. App. 2007) (finding an abuse of
discretion where “trial court did not discuss [the defendant’s] lesser role either
at the sentencing hearing or in its sentencing statement”), trans. denied.
Similarly, the trial court addressed the fact that Fink had lost her legal career
“which is a very severe consequence of her conduct.”3 Appendix at 518.
Finally, the trial court considered and expressly rejected the proffered mitigator
that the crime was the result of circumstances unlikely to recur, aptly noting
“the power of drug addiction and the fact that [Fink] was arrested again during
her pretrial release.” Id.
[22] Fink has failed to establish an abuse of discretion. Accordingly, we turn to
Fink’s claim that her ten-year advisory sentence with two years suspended to
probation was inappropriate in light of her character and the nature of the
offense.
[23] Although a trial court may have acted within its lawful discretion in imposing a
sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize
2 The court observed that it was clear Ripperdan was the person “doing the most active manufacturing and that [Fink’s] role in that was minimal.” Transcript at 582. 3 At the sentencing hearing, the trial court observed further:
I take note of the fact that when some people are sitting in your seat they will go back to their job painting houses…and your life is forever changed because of this in a way which is gonna cost you many thousands of dollars and the, your pride and respect in the community. And so I know you’ve already suffered a penalty, which many people would not have suffered at this point. Transcript at 587.
Court of Appeals of Indiana | Memorandum Decision 31A01-1510-CR-1704 | October 19, 2016 Page 11 of 13 independent appellate review and revision of a sentence imposed by the trial
court. Alvies v. State, 905 N.E.2d 57, 64 (Ind. Ct. App. 2009). This appellate
authority is implemented through Indiana Appellate Rule 7(B), which provides:
“The Court may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, the Court finds that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender.” Nevertheless, “we must and should exercise deference to a trial
court’s sentencing decision, both because Rule 7(B) requires us to give ‘due
consideration’ to that decision and because we understand and recognize the
unique perspective a trial court brings to its sentencing decisions.” Stewart v.
State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The appellant bears the
burden of persuading us that her sentence is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
[24] With respect to the character of the offender, Fink notes that she had no prior
criminal history, her conduct was the result an addiction arising out of a painful
medical condition, and she had a low risk of reoffending. This is juxtaposed,
however, with the fact that while the instant case was pending, Fink was
arrested on similar charges, also involving Ripperdan (with whom she had been
ordered to have no contact), in another county in June 2014.
[25] Turning to the nature of the offense, Fink emphasizes her minimal role in the
manufacturing process. While she certainly had a minor role in the actual
manufacturing, the record indicates that she allowed her home to be the setting
of Ripperdan’s drug labs. It is evident that this was not a one-time event, as the
Court of Appeals of Indiana | Memorandum Decision 31A01-1510-CR-1704 | October 19, 2016 Page 12 of 13 home contained drug paraphernalia, items used to manufacture
methamphetamine, marijuana, and methamphetamine in various stages of the
manufacturing process. Further, it can be inferred from the record that Fink
regularly provided Ripperdan with pseudoephedrine used in his manufacturing
activities and may have financed his manufacturing to support her drug habit.
[26] As noted previously, Fink’s sentences were all ordered to be served
concurrently and, with respect to the highest level offense, she received the
advisory sentence, which was partially suspended. Considering Fink’s
character and the nature of her offense, we do not find inappropriate her
aggregate sentence of ten years with two suspended to probation for seven drug-
related counts.
[27] Judgment affirmed.
[28] Bradford, J. and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 31A01-1510-CR-1704 | October 19, 2016 Page 13 of 13