Paul F. McGiffen v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 4, 2016
• Docket: 42A01-1505-CR-463
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 04 2016, 8:13 am

this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court 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 Christopher A. Ramsey Gregory F. Zoeller Ramsey Law Office Attorney General of Indiana Vincennes, Indiana Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Paul F. McGiffen, April 4, 2016 Appellant-Defendant, Court of Appeals Case No. 42A01-1505-CR-463 v. Appeal from the Knox Superior Court State of Indiana, The Honorable Ryan D. Appellee-Plaintiff Johanningsmeier Trial Court Cause No. 42D02-1402-CM-87

Mathias, Judge.

Court of Appeals of Indiana | Memorandum Decision 42A01-1505-CR-463 | April 4, 2016 Page 1 of 9 [1] Paul F. McGiffen (“McGiffen”) was convicted in the Knox Superior Court for

Class B misdemeanor visiting a common nuisance. McGiffen appeals and

argues that his conviction is not supported by sufficient evidence.

[2] We affirm.

Facts and Procedural History

[3] At 2:10 a.m. on January 16, 2014, Trooper Bill Gadberry (“Trooper Gadberry”)

summoned Trooper William Campbell (“Trooper Campbell”) to a house on

702 West Third Street in Bicknell, Indiana. Tr. p. 3-4. Trooper Gadberry was in

the middle of executing a search warrant, and he needed Trooper Campbell’s

help transporting occupants to jail and searching the premises pursuant to the

search warrant. Id.

[4] The house was the residence of Ron Chambers, for whom an arrest warrant had

been issued. Id. at 4. The house was also the subject of a drug investigation in

which the search warrant had been issued. Id. When Trooper Campbell arrived,

Trooper Gadberry, another officer, and U.S. Marshalls had detained five people

in the front room of the house. Id. at 4-5; 7. One of the detainees was McGiffen.

Id. at 8.

[5] While standing in the front room, Trooper Campbell observed a chemical odor,

drug paraphernalia, and foils with burn marks. Id. at 4, 6. Based on his training

in investigation of clandestine methamphetamine laboratories, Trooper

Campbell opined that the odor was associated with methamphetamine

Court of Appeals of Indiana | Memorandum Decision 42A01-1505-CR-463 | April 4, 2016 Page 2 of 9 manufacturing and believed the foils were used to heat methamphetamine. See

id. at 6–7.

[6] Trooper Campbell took McGiffen and other detainees into custody. Id. at 8.

Trooper Campbell was told that all detainees were given their Miranda

warnings before Trooper Campbell arrived, but Trooper Campbell did not

know who gave the warnings. Id. at 10. While driving to jail, Trooper Campbell

asked the group how long they had been at the house and what they had been

doing that night. Id. at 10. The detainees responded that they were hanging out

and that they had been there all night. Id. McGiffen stated that he had been

there all day and that he “just came out all day and evening.” Id. at 10.

[7] After transporting McGiffen and his companions to the jail, Trooper Campbell

returned to the house and assisted in the search. Id. at 9. The search team found

several “one pot” methamphetamine labs,1 drug paraphernalia, marijuana, and

a synthetic drug. Id. at 9. Trooper Campbell also saw the methamphetamine

labs placed near the back door, but he did not know whether a search team

member or another individual placed them there. Id. at 9. The record does not

establish where within the house the search team found the drug paraphernalia,

marijuana, and the synthetic drug.

[8] On February 3, 2014, McGiffen was charged with Class B misdemeanor

visiting a common nuisance. A bench trial was held on February 23, 2015, and

1 Trooper Campbell testified that “one pot” is “typically . . . a 20 ounce pop bottle.” Id. at 9.

Court of Appeals of Indiana | Memorandum Decision 42A01-1505-CR-463 | April 4, 2016 Page 3 of 9 McGiffen was convicted as charged. Id. at 21. At the sentencing hearing on

April 21, 2015, McGiffen was sentenced to 180 days in jail, which was

suspended to 365 days of supervised probation with 180 days of electronic

home monitoring, and was assessed a $25.00 fine plus court costs. McGiffen

now appeals, claiming that the State had insufficient evidence to convict him.

Standard of Review

[9] When a party challenges the sufficiency of the evidence, we neither reweigh the

evidence nor judge the credibility of witnesses. Chappell v. State, 966 N.E.2d

124, 129 (Ind. Ct. App. 2012) (citing McHenry v. State, 820 N.E.2d 124, 126

(Ind. 2005)), trans denied. Rather, we recognize the exclusive province of the

trier of fact to weigh any conflicting evidence, and we consider only the

probative evidence supporting the conviction and the reasonable inferences to

be drawn therefrom. Id. If there is not substantial evidence of probative value

from which a reasonable trier of fact could have drawn the conclusion that the

defendant was guilty of the crime charged beyond a reasonable doubt, then the

judgment will be disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind.

Ct. App. 2008).

Discussion and Decision

[10] Indiana Code section 35-48-4-13(a) provides that “[a] person who knowingly or

intentionally visits a building, structure, vehicle, or other place that is used by

any person to unlawfully use a controlled substance commits visiting a common

nuisance, a Class B misdemeanor.”

Court of Appeals of Indiana | Memorandum Decision 42A01-1505-CR-463 | April 4, 2016 Page 4 of 9 [11] In challenging the sufficiency of the evidence, McGiffen makes two arguments.

First, he argues that the State did not establish that he knew he was visiting a

place where unlawful substances were used. Appellant’s Br. 2-3. Second, he

argues that the State did not prove that the house was a “common nuisance.”

Id. at 2. We address each argument in turn.

A. Knowledge of Unlawful Use

[12] To sustain a conviction for visiting a common nuisance, the State must prove

that the individual knows that the place visited was used for the unlawful use of

a controlled substance. See, e.g., Bass v. State, 512 N.E.2d 460, 461–63 (Ind. Ct.

App. 1987). The defendant’s knowledge may be inferred from the surrounding

circumstances. See Zuniga v. State, 815 N.E.2d 197, 200 (Ind. Ct. App. 2004).

The presence of drug paraphernalia is probative of the unlawful use of an

uncontrolled substance but is not probative of defendant’s knowledge of such

unlawful use. Bass, 512 N.E.2d at 463. Therefore, the State must present

evidence beyond paraphernalia to infer knowledge. Id.

[13] McGiffen relies on Bass in support of his argument. In that case, the defendants

entered the residence at approximately 1:15 a.m. Id. at 461. The police,

responding to a noise complaint, arrived at the residence at about 2:37 a.m. Id.

The police officer peered through the door and saw defendants sitting on the

couch in front of a coffee table. Id. A bong, a pill bottle, and scissors containing

a burnt segment of a small white object were on the table. Id. At trial, Bass

testified that no one had smoked marijuana or hashish while she was there and

Court of Appeals of Indiana | Memorandum Decision 42A01-1505-CR-463 | April 4, 2016 Page 5 of 9 that she could not see the bong or the pill bottle because the table was so

crowded with other items. Id. at 464. A chemist at trial testified that burnt

residue from the bong contained THC but could not discern whether it

contained marijuana even under a microscope. Id. at 461. Further, the pill bottle

contained 0.8 grams of hashish and cigarettes with an undetermined amount of

marijuana. Id.

[14] The police officer testified that the bong was not hot when he picked it up and

that none of the adults seemed to be under the influence. Id. Considering all the

evidence, our court could not infer that there was a marijuana or hashish odor

present. Id. at 464. Even though there were trace amounts of drugs present, our

court concluded the evidence was insufficient to infer defendants’ knowledge of

unlawful use. Id.

[15] In contrast to Bass, the court in Zuniga concluded sufficient evidence supported

the defendant’s conviction of visiting a common nuisance. The defendant in

Zuniga went to pick up her child’s father and waited in his garage for fifteen

minutes. 815 N.E.2d at 198-99. After receiving complaints and conducting

surveillance on the home, the police raided the residence. Id. at 199. The

detective reported the strong smell of marijuana emanating from the garage. Id.

at 200. The police found drug paraphernalia and residue in the garage.

However, the court acknowledged that paraphernalia alone is not enough to

infer knowledge and instead focused on the strong smell. Id. The strong smell

itself was sufficient to infer knowledge. Id. (“[W]e can infer beyond a

reasonable doubt that based upon the strong smell of burnt marijuana Zuniga Court of Appeals of Indiana | Memorandum Decision 42A01-1505-CR-463 | April 4, 2016 Page 6 of 9 knew that the residence was used for the unlawful use of a controlled

substance.”).

[16] The mere presence of drugs can also support an inference of knowledge. See

Frye v. State, 757 N.E.2d 684, 691 (Ind. Ct. App. 2001). In Frye, the police

observed a residence suspected to be involved with drug activity and arrested a

man who admitted to buying cocaine at the particular residence. Id. at 687.

Soon after, the police approached two men in the front yard, one of whom was

Frye. Id. After identifying themselves as police officers, Frye ran into the house

and the police followed him. Id. While rounding up all of the house’s

occupants, the police found marijuana, marijuana and cocaine pipes, and other

drug paraphernalia. Id. Frye was found with cocaine in his possession. Id. The

court noted Frye’s possession of cocaine but also emphasized the “sheer

quantity of illegal drugs and drug paraphernalia around the house” to support

the inference of knowledge. Id. at 691.

[17] In the case before us, ample evidence supports the inference that McGiffen

knew the house he visited was used for unlawful use of a controlled substance.

Trooper Campbell smelled a chemical odor in the house. The odor alone is

sufficient to infer McGiffen’s knowledge of illegal activity on the premises. See

Zuniga, 815 N.E.2d at 200.

[18] Moreover, the State presented additional evidence that supports the inference

that McGiffen knew the house was used for unlawful use of a controlled

substance because the troopers discovered not just one, but several, “one pot”

Court of Appeals of Indiana | Memorandum Decision 42A01-1505-CR-463 | April 4, 2016 Page 7 of 9 methamphetamine labs, marijuana, and a synthetic drug.2 See Frye, 757 N.E.2d

at 691.

[19] Lastly, we note the length of time in which McGiffen was in the house. He

stated that he was there all day until the troopers arrived at 2:10 a.m. Although

the time period is not dispositive, the fact that McGiffen was in the house for

several hours supports the inference that he knew the house was used for

unlawful drug consumption.

B. Common Nuisance

[20] The State is also required to prove that the place defendant visited was used

more than once for unlawful use. Bass, 512 N.E.2d at 465 (citing Wells v. State,

351 N.E.2d 43 (1976)). A “common nuisance . . . necessarily requires proof of

a continuous or recurrent violation.” Hale v. State, 785 N.E.2d 641, 643 (Ind. Ct.

App. 2003).

[21] “[T]he existence of paraphernalia may be probative of the issue of whether

controlled substances were used in the building. Such evidence, however, does

not conclusively establish use and therefore cannot, in and of itself, conclusively

establish repeated use.” Bass v. State, 512 N.E.2d 460, 461–63 (Ind. Ct. App.

1987). However, the presence of both drug paraphernalia and drugs may be

2 The record is silent concerning the initial location of the drugs within the house.

Court of Appeals of Indiana | Memorandum Decision 42A01-1505-CR-463 | April 4, 2016 Page 8 of 9 sufficient. Traylor v. State, 817 N.E.2d 611, 620 (Ind. Ct. App. 2004), overruled on

other grounds by Buelna v. State, 20 N.E.3d 137 (Ind. 2014).

[22] In Traylor, police responded to an anonymous tip regarding a strong odor

coming from a mobile home. Id. at 614. The police found an HCI generator,

which is used to manufacture methamphetamine, sitting on the gas grill by the

back door. Id. Additionally, the police found a briefcase in the garage that

contained a baggie of methamphetamine and a glass pipe, as well as other glass

pipes with burnt residue throughout the mobile home. Id. at 620. Based on these

facts, our court held that the evidence was sufficient to infer repeated use. Id.

[23] Likewise, in the instant case, sufficient evidence establishes that the house

McGiffen visited was a common nuisance. The police in this case found several

“one pot” methamphetamine labs, marijuana, and a synthetic drug. The

combination of the drugs and drug paraphernalia constitutes sufficient evidence

to infer that the house was a common nuisance. See Traylor, 817 N.E.2d at 620.

[24] For all of these reasons, we conclude that sufficient evidence infers that

McGiffen knowingly visited a common nuisance, and we therefore affirm

McGiffen’s conviction.

[25] Affirmed.

Kirsch, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 42A01-1505-CR-463 | April 4, 2016 Page 9 of 9