MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jun 04 2015, 10:38 am Memorandum Decision shall not be regarded as precedent or cited before any 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 Paul Stephen Miller Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana Eric P. Babbs Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Renald Williams, Sr., June 4, 2015
Appellant-Defendant, Court of Appeals Case No. 02A04-1409-CR-412 v. Appeal from the Allen Superior State of Indiana, Court Honorable Wendy W. Davis, Judge Appellee-Plaintiff, Cause No. 02D04-1309-FB-166
Robb, Judge.
Case Summary and Issues [1] Following a bench trial, Renald Williams, Sr., was convicted of dealing in
methamphetamine as a Class B felony and possession of chemical reagents or
Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015 Page 1 of 26 precursors with intent to manufacture as a Class D felony. He received an
aggregate sentence of nineteen years.
[2] Williams appeals, raising the following five issues for our review: (1) whether
he voluntarily, knowingly, and intelligently waived his constitutional right to a
jury trial; (2) whether the trial court abused its discretion by admitting evidence
obtained as a result of a warrantless search; (3) whether his convictions violate
federal and state constitutional prohibitions against double jeopardy; (4)
whether the trial court abused its discretion in sentencing him; and (5) whether
his sentence is inappropriate in light of the nature of the offenses and his
character.
[3] Concluding that Williams validly waived his right to a jury trial, that the trial
court did not abuse its discretion by admitting evidence, and that Williams’s
convictions do not violate double jeopardy principles, we affirm his convictions.
Further concluding that the trial court did not abuse its sentencing discretion
and that Williams’s sentence is not inappropriate, we affirm his sentence.
Facts and Procedural History [4] On September 13, 2013, the Fort Wayne Police Department received an
anonymous tip regarding a suspected methamphetamine lab at 1131 Summit
Street in Fort Wayne. Three police officers responded to the call around
midnight. Upon arrival, the officers knocked on the front door of the house.
Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015 Page 2 of 26 When Thomas Hempel answered the door,1 the officers informed him that they
were conducting a drug investigation and asked if they could come inside to
speak with him. Hempel agreed and invited them inside.
[5] Hempel spoke with the officers in the entryway between the living room and
the kitchen. Hempel told the officers that he lived in the apartment, and when
the officers asked if there was anyone else currently in the apartment, he said
that his girlfriend was in the bedroom. He also said they were “free to look
around.” Transcript of Trial at 12. As the officers were speaking with Hempel,
they noticed a pile of salt, latex gloves, and plastic bottles in the kitchen
trashcan—items consistent with the production of methamphetamine.
Suspecting methamphetamine production somewhere in the apartment, they
asked Hempel if they could speak to his girlfriend.
[6] Hempel walked through the kitchen to the bedroom door and pushed the door
slightly open, only “wide enough that he could speak to whoever was inside.”
Id. at 28. Detective Marc Deshaies followed and stood behind him. As
Hempel attempted to tell his “girlfriend” to come out, Detective Deshaies
detected the odor of methamphetamine production and saw that the entire
bedroom was filled with white smoke. Mindful of the dangers of an active
methamphetamine lab, the officers entered the bedroom. A woman was
standing near the doorway, and Williams was crouched in the middle of the
1 The house at 1131 Summit Street is a two-story building that has been divided into separate apartments. Hempel lived in the apartment on the first floor.
Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015 Page 3 of 26 room. Williams was holding a vapor-filled bag, and the smoke appeared to be
coming from his immediate area. A third individual was sitting in an armchair
to the right of Williams.2
[7] The officers promptly evacuated the house, called the fire department, and
requested assistance from the methamphetamine cleanup team. Detective
Robert Kirby interviewed Hempel, who stated that he was renting the
apartment and was the only person named on the lease. When Detective Kirby
asked for consent to search the apartment, Hempel consented to the search.
The search revealed the following items in the bedroom where Williams was
found:
A “one pot meth lab;” A hydrochloric gas generator; “Liquid Fire” drain opener containing sulfuric acid; Coleman fuel, an organic solvent; Canisters of table salt; Unused coffee filters; Six feet of vinyl tubing; Lithium batteries; One zip lock bag containing ammonium nitrate; One “foil boat” with burnt residue; One zip lock bag containing “a white cloudy liquid” that tested positive for methamphetamine; Lye drain opener; An instant cold pack containing ammonium nitrate; A coffee grinder with residue that tested positive for pseudoephedrine;
2 Hempel testified at trial that he did not know the two individuals in the bedroom with Williams.
Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015 Page 4 of 26 One coffee filter that had been used as a strainer; A glass pipe with burnt residue; and Several pairs of pliers, typically used to remove lithium from batteries.
Id. at 39-48. Officers found a second “one pot meth lab” in the freezer in the
kitchen and another hydrochloric gas generator in the kitchen trashcan. Id. at
49.
[8] During an interview a few days after his arrest, Williams admitted that he “was
cooking in the back room” and that he “told Mr. Hempel that he had a female
in the back bedroom to keep Mr. Hempel out of the room.” Id. at 71. Williams
provided “a very detailed description of how he manufactures meth,” id. at 70,
and admitted to selling methamphetamine.
[9] Williams was charged with dealing in methamphetamine as a Class B felony
and possession of chemical reagents or precursors with intent to manufacture as
a Class D felony. During a hearing on March 27, 2014, the following exchange
took place:
[Defense counsel:] Over the weekend I received a letter from Mr. Williams . . . [i]ndicating that he wants me to file a motion to suppress and because we’re up against our trial date which I’m going to be gone next week and the trial date is the week after. He wants to waive his right to a jury trial and set this for a bench trial so we can discuss important issues that may – that may have an effect on this case. . . .
Court: Your attorney is telling me that you would like to waive your right to a jury trial and have this tried to me essentially, is that correct?
[Defendant:] Yes.
Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015 Page 5 of 26 Court: All right. And you understand what that means, that you have a right to a trial by jury and all the other rights attached to a jury trial? Have you discussed the waiver with your counsel?
[Defendant:] Not fully, but I will grant it.
Court: Okay. All right. Any objection from the State?
[Prosecutor:] No, Your Honor.
Court: All right. I will go ahead then and note – note that he has waived his right to a jury trial. Transcript of Hearing at 7-8. Williams did not sign a written waiver.
[10] The parties agreed to set the matter for a combined suppression hearing and
bench trial on April 9, 2014, and the trial court instructed defense counsel to file
a written motion to suppress prior to that date. On July 8, 2014, following
several continuances, Williams sent a letter to the trial court and filed a pro se
motion to suppress. The letter stated in relevant part:
[My attorney] has failed to file the suppression that I’ve asked him to do. . . . The suppression was supposed to be filed prior to our original trial date of April 9, 2014. That was one of the reasons why I waived my jury trial rights on March 27, 2014. I wanted to place myself completely under your discretion versus 12 jurors whom may be ignorant or incompetent to the law. Appendix of Appellant at 68.
[11] The combined suppression hearing and bench trial took place on July 14, 2014.
After hearing the evidence, the trial court denied the motion to suppress and
Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015 Page 6 of 26 found Williams guilty on both counts. The trial court sentenced Williams to
nineteen years for dealing in methamphetamine, with seventeen years executed
in the Department of Correction and two years suspended to probation, to be
served concurrently with a three year executed sentence for possession of
chemical reagents or precursors. Williams now appeals.
Discussion and Decision I. Waiver of the Right to a Jury Trial [12] The right to trial by jury is a fundamental right guaranteed by the Sixth
Amendment to the U.S. Constitution and by Article 1, Section 13 of the
Indiana Constitution. Coleman v. State, 694 N.E.2d 269, 278 (Ind. 1998). A
defendant’s waiver of the right “must be voluntary, knowing, and intelligently
made with sufficient awareness of the relevant circumstances surrounding its
entry and its consequences.” O’Connor v. State, 796 N.E.2d 1230, 1233 (Ind. Ct.
App. 2003) (citation omitted). Williams contends that he did not knowingly
and voluntarily waive his right to a jury trial.
[13] Denying a defendant a jury trial in the absence of a knowing, voluntary, and
intelligent waiver is fundamental error. Johnson v. State, 6 N.E.3d 491, 496 (Ind.
Ct. App. 2014). A valid waiver requires affirmative action by the defendant,
O’Connor, 796 N.E.2d at 1233, and “must be elicited personally from the
defendant, either orally in open court or in writing.” Reynolds v. State, 703
N.E.2d 701, 704 (Ind. Ct. App. 1999). This court has determined:
Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015 Page 7 of 26 A voluntary waiver occurs if the conduct constituting the waiver is the product of a free will; a knowing waiver is the product of an informed will; an intelligent waiver is the product of a will that has the capacity to understand; and a waiver is personal if it is made by the defendant. Id. (citation omitted).
[14] Williams argues that his waiver was not an informed decision for two reasons.
First, at the time of the waiver, Williams told the trial court that he had “not
fully” discussed his rights with counsel. Tr. of Hearing at 8. Second, following
Williams’s statement that he had “not fully” discussed his rights, the trial court
did not conduct an oral advisement of rights. Id. However, there is nothing in
the record to suggest that Williams did not understand his right to a jury trial
and the consequences of waiving that right. Although the defendant’s personal
desire to waive the right must be apparent from the record, there is no
requirement that a trial court orally advise a defendant of his or her right to a
jury trial and the consequences of waiving that right. McSchooler v. State, 15
N.E.3d 678, 682-83 (Ind. Ct. App. 2014). Nor is counsel required “to explain
each and every possible detail concerning a jury trial in order for the defendant
to be sufficiently informed . . . .” Reynolds, 703 N.E.2d at 704.
[15] Williams’s significant criminal history, including six prior felony convictions,
“suggests a high level of familiarity with the judicial process, making it quite
likely that he knew what a ‘jury’ was.” Poore v. State, 681 N.E.2d 204, 207 (Ind.
1997). Williams demonstrated his knowledge in his letter to the trial court
when he stated that a jury would be composed of twelve laypersons. In
addition, Williams was represented by counsel when he waived his right to a
Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015 Page 8 of 26 jury trial. At the hearing on March 27, 2014, Williams’s attorney stated that
Williams wanted to waive his right to a jury trial “so we can discuss important
issues that may . . . have an effect on this case.” Tr. of Hearing at 8. This
statement implies that Williams was acting upon the advice of legal counsel,
and that the decision to waive the right to a jury trial was a strategic one. See
McSchooler, 15 N.E.3d at 683.
[16] The letter that Williams sent to the trial court, read in light of his attorney’s
arguments at sentencing, further suggests that Williams waived his right to a
jury trial for strategic reasons. Williams wrote that the motion to suppress was
“one of the reasons why [he] waived his jury trial rights.” App. of Appellant at
68. He did not trust a jury of his peers—individuals who “may be ignorant or
incompetent to the law”—because his primary defense was alleging a violation
of the Fourth Amendment. Id. At sentencing, his attorney stated as much:
He requested a bench trial so that he could contest what he perceived to be a violation of his Fourth Amendment Rights. We didn’t want to do a jury trial because all along, he . . . accepted the fact that he was caught in the act and . . . there was enough evidence to convict him otherwise. Transcript of Sentencing at 5-6. Evidence of waiver as a deliberate strategy
supports the trial court’s conclusion that Williams made an informed decision
when he waived his right to a jury trial. See McSchooler, 15 N.E.3d at 683.
[17] Williams also contends that the waiver was not voluntary because it was
“conditioned on a motion to suppress being filed,” and “the only suppression
motion was that filed by [Williams] and not his counsel.” Brief of Appellant at
Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015 Page 9 of 26 9. The State argues that “subsequent action or inaction by either party’s
counsel could not undo [the waiver’s] voluntariness.” Brief of Appellee at 13
n.7. We disagree with the State’s proposition. See Williams v. State, 159 Ind.
App. 470, 476-77, 307 N.E.2d 880, 884-85 (1974) (finding an abuse of
discretion when the trial court did not permit the withdrawal of a jury trial
waiver “predicated upon a bargain struck with the prosecution” after plea
negotiations failed). Nevertheless, we conclude that Williams’s waiver was
voluntary.
[18] Williams opted for a bench trial to “contest what he perceived to be a violation
of his Fourth Amendment Rights,” and a motion to suppress was indeed filed
before trial. Tr. of Sentencing at 5. Williams’s statement regarding a motion to
suppress being one of the reasons for waiver reveals his defense strategy. The
statement does not make the waiver conditional, as Williams argues.
[19] Once Williams believed that his attorney would not be filing a motion to
suppress, Williams filed a pro se motion. He at no point requested to withdraw
his waiver, and he did not object when the bench trial was held. See Johnson, 6
N.E.3d at 497 (“[S]ubmission to a bench trial [is] one piece of evidence, among
others, supporting a waiver.”). Although Williams likely did not anticipate
filing the motion to suppress without the assistance of counsel, we have stated
that a “mere allegation” of ineffective assistance is insufficient to invalidate a
jury trial waiver. See Kindle v. State, 161 Ind. App. 14, 22-23, 313 N.E.2d 721,
726-27 (1974).
Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015 Page 10 of 26 [20] In light of all of these factors, we conclude that Williams knowingly,
voluntarily, and intelligently waived his right to a jury trial.
II. Warrantless Search A. Standard of Review [21] Williams next contends that the search of Hempel’s bedroom violated his
Fourth Amendment rights3 because the police obtained invalid consent to
conduct the search. When a defendant challenges the constitutionality of a
search following a completed trial, the issue becomes whether the trial court
abused its discretion by admitting the evidence found during the search.
Bulthuis v. State, 17 N.E.3d 378, 382 (Ind. Ct. App. 2014), trans. denied. The trial
court abuses its discretion only if its decision was clearly against the logic and
effect of the facts and circumstances before it, or if the trial court has
misinterpreted the law. Id. at 382-83.
[22] In reviewing the trial court’s ruling, we do not reweigh the evidence but defer to
the trial court’s factual determinations unless clearly erroneous. Meredith v.
State, 906 N.E.2d 867, 869 (Ind. 2009). We view conflicting evidence most
favorably to the trial court’s ruling. Id. However, we also consider any
undisputed evidence favorable to the defendant. State v. Cunningham, 26
3 Williams’s only reference to the Indiana Constitution is his assertion that “[t]he Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution protect an individual’s privacy and possessory interests by prohibiting unreasonable searches and seizures.” Br. of Appellant at 11. Because Williams “presents no authority or independent analysis supporting a separate standard under the state constitution, any state constitutional claim is waived.” Lockett v. State, 747 N.E.2d 539, 541 (Ind. 2001).
Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015 Page 11 of 26 N.E.3d 21, 25 (Ind. 2015) (citation omitted). Finally, although the trial court’s
factual determinations are entitled to deferential review, the constitutionality of
a search is a question of law that we review de novo. Johnson v. State, 992
N.E.2d 955, 957 (Ind. Ct. App. 2013), trans. denied.
B. Admission of Evidence [23] “To trigger Fourth Amendment protections, a search arises out of an intrusion
by a government actor upon an area in which a person maintains a reasonable
expectation of privacy.” Holder v. State, 847 N.E.2d 930, 935 (Ind. 2006)
(quoting Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring))
(internal quotation marks omitted). Williams contends that he was an
overnight guest with a reasonable expectation of privacy in Hempel’s bedroom.
While it is true that overnight guests may claim the protection of the Fourth
Amendment, we do not believe Williams falls in this category.
[24] The U.S. Supreme Court, in Minnesota v. Carter, distinguished overnight guests
from those who are “merely present with the consent of the householder . . . .”
525 U.S. 83, 90 (1998) (citing Minnesota v. Olson, 495 U.S. 91, 98-99 (1990)).
Our supreme court has similarly distinguished overnight guests from “casual
guests.” See Gray v. State, 593 N.E.2d 1188, 1191 (Ind. 1992). The casual guest
lacks standing to challenge a search because he or she has no legitimate
expectation of privacy in the premises. Id. We believe Williams was a casual
guest.
Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015 Page 12 of 26 [25] In Carter, the U.S. Supreme Court held that a defendant who was in another
person’s apartment for the sole purpose of packaging cocaine was merely a
casual guest. 525 U.S. at 90-91. The defendant had never been to the
apartment before, stayed for less than three hours, and paid the tenant in
cocaine for his use of the apartment. We confronted a similar set of facts in
Gregory v. State, 885 N.E.2d 697 (Ind. Ct. App. 2008), trans. denied. Gregory
agreed to manufacture methamphetamine at his codefendant’s mother’s house.
His codefendant’s mother was out of town at the time, and we held that
Gregory was “just a mere visitor” to the property and lacked standing to
challenge the search that occurred there. Id. at 704. Likewise in Best v. State,
821 N.E.2d 419 (Ind. Ct. App. 2005), trans. denied, the defendant argued that he
was an overnight guest in a camper trailer because he had paid to use it to
manufacture methamphetamine. Best had been to the property where the
camper trailer was parked “a dozen or more times but had never stayed
overnight.” Id. at 422. He had “never used the camper trailer as a dwelling
place, but only for commercial purposes, and he was there only intermittently.”
Id. at 425. We held that Best was never an overnight guest “but was simply
there to do business; that is, to manufacture methamphetamine.” Id.4
4 We further noted in Best that property used for commercial purposes is treated differently from residential property: “‘An expectation of privacy in commercial premises is different from, and indeed less than, a similar expectation in an individual’s home.’ . . . Since the property was being used by Best for purely commercial purposes, it is treated differently than property used for residential purposes.” Id. at 425 (quoting Carter, 525 U.S. at 90).
Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015 Page 13 of 26 [26] On the other hand, in Harless v. State, 577 N.E.2d 245, 247-48 (Ind. Ct. App.
1991), a defendant who “had stayed overnight at [his girlfriend’s] home on
many occasions and on the evening preceding the day on which the search
occurred,” and who “paid several of the household utility bills,” was considered
an overnight guest. Similarly, in Hanna v. State, 726 N.E.2d 384, 387 n.4 (Ind.
Ct. App. 2000), we held that a defendant who had stayed overnight at his
friend’s apartment over twenty times in the few months before the search was
an overnight guest; in that case, the two individuals had been friends for five
years.
[27] We believe that the present case resembles the facts of Carter, Gregory, and Best.
At the time of the search, Hempel had known Williams for less than three
weeks and did not even know Williams’s real name.5 Although Williams had
a key to Hempel’s apartment on the day of the search, Hempel testified that day
was the first and only time he had ever given Williams a key. And Hempel did
not believe that Williams would be staying the night. Hempel thought
Williams would be going to a girlfriend’s house and gave Williams a key so that
Williams could “get cleaned up before he went on down there.” Tr. of Trial at
94. Williams was not an overnight guest. He “was simply there to do business;
that is, to manufacture methamphetamine.” See Best, 821 N.E.2d at 425.
5 Hempel knew Williams as “Twin” at the time of the search. Tr. of Trial at 92.
Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015 Page 14 of 26 [28] In short, Williams cannot challenge the search because he had no legitimate
expectation of privacy in Hempel’s bedroom.6 We therefore hold that the trial
court did not abuse its discretion by admitting evidence obtained as a result of
the search.
III. Double Jeopardy A. Standard of Review [29] Williams also argues that his convictions for dealing in methamphetamine by
manufacturing and possession of chemical reagents or precursors with intent to
manufacture violate federal and state constitutional prohibitions against double
jeopardy. We review whether multiple convictions violate double jeopardy de
novo. Jones v. State, 976 N.E.2d 1271, 1275 (Ind. Ct. App. 2012), trans. denied.
B. United States Constitution [30] The Double Jeopardy Clause of the Fifth Amendment provides that no person
shall “be subject for the same offense to be twice put in jeopardy of life or
6 But even if Williams had been an overnight guest, Hempel had actual authority to consent to the search and provided valid consent. See, e.g., Gado v. State, 882 N.E.2d 827, 831-32 (Ind. Ct. App. 2008), trans. denied. Hempel was the resident of the apartment. He “sometimes” slept in the bedroom, but more often slept on the couch in the living room because the bedroom was quite small. Tr. of Trial at 96. As Hempel explained, the bedroom was “more like a closet for everything.” Id. And notwithstanding frequent nights on the couch, Hempel referred to the bed in the bedroom as his own. Even though Hempel had permitted Williams to use the room on occasion, Hempel could consent to the search in his own right. See Gado, 882 N.E.2d at 832. Williams erroneously suggests that overnight guests have a privacy interest that “cannot be invaded by law enforcement based on a third party’s consent.” Br. of Appellant at 12. In fact, “[i]t is well established that a third party may consent to a search of another’s premises or property if actual authority exists.” Lee v. State, 849 N.E.2d 602, 606 (Ind. 2006) (citing Illinois v. Rodriguez, 497 U.S. 177, 179 (1990)), cert. denied, 549 U.S. 1211 (2007). And the exception articulated in Georgia v. Randolph, 547 U.S. 103 (2006), applies only when a physically present co-occupant objects to a search. Here, Williams did not object.
Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015 Page 15 of 26 limb.” To evaluate Williams’s federal double jeopardy claim, we employ the
well-established test announced in Blockburger v. United States: “[T]he test to be
applied to determine whether there are two offenses or only one, is whether
each provision requires proof of a fact which the other does not.” 284 U.S. 299,
304 (1932). Review is limited to the relevant statutes; the factual elements in
the charging information and the jury instructions are not part of the inquiry.
Berry v. State, 703 N.E.2d 154, 159 (Ind. 1998).
[31] Indiana Code section 35-48-4-1.1(a) (2013) provides, in relevant part: “A person
who . . . knowingly or intentionally . . . manufactures . . . methamphetamine . .
. commits dealing in methamphetamine, a Class B felony . . . .” Indiana Code
section 35-48-4-14.5(e) (2013) provides, in relevant part: “A person who
possesses two (2) or more chemical reagents or precursors with the intent to
manufacture a controlled substance commits a Class D felony.”7
[32] Dealing in methamphetamine by manufacturing and possession of chemical
reagents or precursors with intent to manufacture do not constitute the same
offense under Blockburger because each provision requires proof of a fact which
the other does not. Dealing in methamphetamine by manufacturing requires
that a defendant actually begin the process of manufacturing
methamphetamine, whereas possession of chemical reagents or precursors with
7 “Chemical reagents or precursors” are defined in Indiana Code section 35-48-4-14.5(a) (2013), and include the following: pseudoephedrine, ammonia solution, organic solvents, hydrochloric acid, lithium metal, sulfuric acid, sodium hydroxide (lye), and ammonium nitrate.
Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015 Page 16 of 26 intent to manufacture methamphetamine does not require that the
manufacturing process actually be initiated. Bush v. State, 772 N.E.2d 1020,
1024 (Ind. Ct. App. 2002), trans. denied. A defendant can possess chemical
reagents or precursors with intent to manufacture without taking any steps
toward actually manufacturing. Likewise, possession of chemical reagents or
precursors with intent to manufacture requires proof that a defendant possessed
at least two chemical reagents or precursors, but manufacturing
methamphetamine does not. If, for instance, a defendant was in the late stages
of the process of manufacturing methamphetamine and possessed only empty
containers that had previously contained chemical reagents or precursors, that
defendant would be guilty of manufacturing, but not of possession of chemical
reagents or precursors. There is no federal double jeopardy violation because
each offense requires proof of a fact which the other does not.
C. Indiana Constitution [33] Article 1, Section 14 of the Indiana Constitution provides that “[n]o person
shall be put in jeopardy twice for the same offense.” Our supreme court has
concluded:
[T]wo or more offenses are the same offense in violation of [A]rticle 1, [S]ection 14 if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to obtain convictions, the essential elements of one challenged offense also establish the essential elements of another challenged offense.
Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013) (citing Richardson v. State, 717
N.E.2d 32 (Ind. 1999)). The statutory elements test is the test enunciated in Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015 Page 17 of 26 Blockburger. Brown v. State, 912 N.E.2d 881, 896 (Ind. Ct. App. 2009), trans.
denied. Under the actual evidence test, we examine the evidence presented at
trial to determine whether each offense was established by separate and distinct
facts. Garrett, 992 N.E.2d at 719. To find a double jeopardy violation under the
actual evidence test, we must conclude that there is a reasonable possibility that
the evidentiary facts used to establish the essential elements of one offense may
also have been used to establish all of the essential elements of a second
challenged offense. Id.
[34] In Iddings v. State, 772 N.E.2d 1006 (Ind. Ct. App. 2002), trans. denied, and Bush
v. State, 772 N.E.2d 1020, two cases decided on the same day, we addressed the
circumstances in which a defendant’s conviction for possession of chemical
reagents or precursors would be a lesser included offense of dealing in
methamphetamine by manufacturing. As we explained in Iddings and Bush,
both convictions may stand if the evidence reasonably permits the conclusion
that the defendant committed two independent offenses. In Iddings, the police
recovered completed methamphetamine at the defendant’s residence as well as
precursors of methamphetamine in large quantities. 772 N.E.2d at 1017. We
concluded that the evidence established two independent offenses because the
defendant had already completed the process of manufacturing
methamphetamine and possessed the precursors with intent to manufacture
more methamphetamine. Id. We reached a different conclusion in Bush, where
the defendant’s “conviction for manufacturing methamphetamine was based
exclusively on his possession of the precursors of that drug in circumstances
Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015 Page 18 of 26 suggesting that he was in the process of manufacturing it.” 772 N.E.2d at 1024.
Bush’s possession of precursors was not an independent offense because there
was no evidence that he had succeeded in completing a “batch” of
methamphetamine. Id.
[35] In Scott v. State, 803 N.E.2d 1231, 1240 (Ind. Ct. App. 2004), another case in
which a defendant was convicted of both dealing by manufacturing and
possession of chemical reagents or precursors, we held that the evidence
supported the inference that two independent offenses had occurred, even
though the police did not find completed methamphetamine on the defendant’s
property. Notwithstanding the absence of completed methamphetamine, the
evidence permitted the conclusion that “actual methamphetamine had already
been created.” Id. The defendant stated that he was tired of people calling the
police about the smell of ether emanating from this property, and the police
found “punctured and burned starting fluid cans, empty mineral spirits cans,
stripped out lithium batteries, and two plastic containers that were being used as
[hydrochloric gas] generators” on his property. Id. Citing Iddings, we affirmed
both convictions because the defendant also possessed the chemical reagents
and precursors needed to manufacture additional methamphetamine. Id.
[36] Here, the evidence indicates that Williams had previously manufactured
methamphetamine, had nearly completed another batch when he was
discovered, and possessed materials to produce more methamphetamine.
Williams admitted that he had previously manufactured methamphetamine and
provided a very detailed description of the production process. Williams also
Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015 Page 19 of 26 admitted to selling methamphetamine and even disclosed how much he charges
for the finished product. In addition to the equipment found in the bedroom
where Williams was actively manufacturing, police found a second “one pot
meth lab” in the freezer and another hydrochloric gas generator in the kitchen
trashcan. Tr. of Trial at 49. The bottle of Coleman fuel discovered in the
bedroom tested positive for “a high level of ammonia,” meaning that Williams
had “re-used” the organic solvent. Id. Finally, Williams was at a late stage in
the manufacturing process at the time of the search and had already produced
methamphetamine. Police found liquid methamphetamine base, an
intermediate mixture containing methamphetamine and organic solvents. The
final step in the manufacturing process, known as “salting out” the
methamphetamine, removes the methamphetamine from the solvent in order to
produce the finished powder form. Id. at 84; see also Buelna v. State, 20 N.E.3d
137, 144 (Ind. 2014). The final step requires hydrochloric gas, and police
found two hydrochloric gas generators—one in the bedroom with Williams and
another that had been thrown away in the kitchen trashcan.
[37] At the time of the search, Williams had already produced methamphetamine,
was one step away from a finished product, and possessed chemical reagents
and precursors in addition to what was needed to complete the process. The
evidence supports the inference that two independent offenses occurred. We
therefore conclude that each offense was established by separate and distinct
facts.
Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015 Page 20 of 26 IV. Abuse of Sentencing Discretion [38] Sentencing decisions rest within the sound discretion of the trial court and are
reviewed on appeal only 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. (citation and internal quotation marks
omitted). A trial court abuses its discretion at sentencing if it: (1) fails to enter a
sentencing statement; (2) enters a sentencing statement that explains reasons for
imposing a sentence, but the record does not support the reasons; (3) enters a
sentencing statement that omits reasons that are clearly supported by the record
and advanced for consideration; or (4) gives reasons that are improper as a
matter of law. Id. at 490-91. If we determine that the trial court has abused its
discretion, we will remand for resentencing “if we cannot say with confidence
that the trial court would have imposed the same sentence had it properly
considered reasons that enjoy support in the record.” Id. at 491.
[39] Williams contends that the trial court abused its discretion by entering a
sentencing statement with a reason that was unsupported by the record. The
trial court found the following aggravating circumstances on the written
judgment of conviction: “Criminal history includes 1 misdemeanor, 6 felonies
of which are robbery, unlawful use of a weapon, battery, escape, strangulation
and on parole when he committed this offense.” App. of Appellant at 73.
Williams argues that the trial court abused its discretion by finding that he has a
Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015 Page 21 of 26 prior conviction for robbery as a felony; in fact, Williams has only a juvenile
adjudication for robbery. Yet notwithstanding the mischaracterization of the
juvenile adjudication as an adult conviction on the judgment of conviction, the
trial court’s assertion that Williams has six prior felony convictions was
accurate.
[40] Williams has been convicted of the following felonies as an adult: (1)
possession of a stolen vehicle; (2) unlawful use of a weapon; (3) domestic
battery; (4) escape; (5) strangulation; and (6) possession of methamphetamine.
In addition to his six prior felony convictions as an adult, Williams was
adjudicated delinquent for committing an act that would have been felony
robbery if committed by an adult. At the sentencing hearing, the trial court
listed seven felony-level offenses, but concluded by stating that Williams had
only six prior felony convictions. Because the trial court was permitted to
consider Williams’s history of delinquent behavior,8 and the record supports the
trial court’s statement that Williams has six prior felony convictions as an adult,
we hold that the trial court did not abuse its discretion when it mischaracterized
Williams’s juvenile adjudication as an adult conviction. Cf. Bethea v. State, 983
N.E.2d 1134, 1141 (Ind. 2013) (concluding that the trial’s court’s misstatement
that defendant “had been convicted of possession of cocaine with intent to
distribute, when in fact he had pled guilty to the lesser included offense of
8 Indiana Code section 35-38-1-7.1(a) provides: “In determining what sentence to impose for a crime, the court may consider the following aggravating circumstances: . . . The person has a history of criminal or delinquent behavior.”
Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015 Page 22 of 26 possession of cocaine” was “not significant” because the error “did not change
the fact that [the defendant] had in fact been convicted of a felony for
possessing cocaine, which was also part of a pattern of [the defendant’s]
involvement in criminal activity”).
V. Appropriateness of Sentence [41] Finally, Williams contends that his sentence is inappropriate in light of the
nature of the offenses and his character. Indiana Appellate Rule 7(B) 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.” The defendant bears the burden of persuading this court that his or
her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
2006). Whether we regard a sentence as inappropriate turns on “the culpability
of the defendant, the severity of the crime, the damage done to others, and
myriad other factors that come to light in a given case.” Cardwell v. State, 895
N.E.2d 1219, 1224 (Ind. 2008).
[42] Regarding the nature of the offense, the advisory sentence is the starting point
that the legislature has selected as an appropriate sentence for the crime
committed. Childress, 848 N.E.2d at 1081. Williams was convicted of dealing
in methamphetamine as a Class B felony and possession of chemical reagents
or precursors with intent to manufacture as a Class D felony. A person who
commits a Class B felony is subject to a sentence of six to twenty years, with the
Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015 Page 23 of 26 advisory sentence being ten years. Ind. Code § 35-50-2-5. Likewise, a person
who commits a Class D felony is subject to a sentence of six months to three
years, with the advisory sentence being one-and-a-half years. Ind. Code § 35-
50-2-7.
[43] Here, the trial court sentenced Williams to nineteen years for the dealing
conviction and three years for possession of chemical reagents or precursors, to
be served concurrently. Seventeen of the nineteen years are to be served in the
Department of Correction, followed by two years of probation. 9 Williams told
police that he not only “cooks” but also sells methamphetamine and often
accepts pseudoephedrine as payment. Tr. of Trial at 71-74. Moreover, twenty-
seven-year-old Williams was manufacturing methamphetamine in an apartment
that did not belong him; the apartment belonged to sixty-six-year-old Hempel.
Hempel had known Williams for just over two weeks the day the
methamphetamine lab was discovered. That day, Williams drove Hempel to
Grabill, a small town outside of Fort Wayne. After dropping off Hempel,
Williams went back to Hempel’s apartment to manufacture methamphetamine
while Hempel was away, and when Hempel returned home, Williams told
Hempel “that he had a female in the back bedroom to keep . . . Hempel out of
the room.” Id. at 71. Williams was manufacturing methamphetamine in an
9 Williams argues that we should reduce his sentence because the maximum possible sentence is reserved for the “worst of the worst.” Br. of Appellant at 18. Williams correctly states the law in Indiana. See Hamilton v. State, 955 N.E.2d 723, 727 (Ind. 2011). However, Williams did not receive the maximum sentence on the lead charge, and an “approximation” of the maximum sentence is not the same as the maximum possible sentence. Br. of Appellant at 17.
Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015 Page 24 of 26 apartment that was not his, possibly without the tenant’s knowledge, and in so
doing exposed innocent bystanders to the dangers of an active
methamphetamine lab. See Holder, 847 N.E.2d at 939 (“[T]he production of
methamphetamine introduces a high risk of explosion and fire.”).
[44] Williams acknowledges that manufacturing methamphetamine “creates a
serious and dangerous situation” but argues that his character does not warrant
a nineteen-year sentence. Br. of Appellant at 17. Williams contends that his
sentence should be reduced because “he has an extremely serious drug abuse
problem.” Id. We have previously stated, however, that “substance abuse
reflects poorly upon [a defendant’s] character.” Calvert v. State, 930 N.E.2d 633,
644 (Ind. Ct. App. 2010). Furthermore, in the present case, Williams was
convicted of not merely possession but dealing in methamphetamine, a far more
serious offense that is not directly related to his addiction. As Williams has
never undergone treatment or otherwise addressed his substance abuse, he has
failed to convince us that his addiction merits a reduced sentence.
[45] As to Williams’s character more generally, at twenty-seven-years-old, Williams
has six prior felony convictions. His prior convictions include unlawful use of a
weapon, domestic battery, and strangulation. Williams has been sentenced to
executed time in the Department of Correction for each prior felony conviction
and has continued to reoffend. He was on parole at the time of this offense.
[46] Given the nature of his offenses and his character, we are not persuaded that
Williams’s sentence is inappropriate.
Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015 Page 25 of 26 Conclusion [47] Williams knowingly, voluntarily, and intelligently waived his right to a jury
trial, and the trial court did not abuse its discretion by admitting evidence
obtained pursuant to Hempel’s consent. Williams’s convictions do not violate
double jeopardy principles because each offense requires proof of additional
facts which the other does not, and each was established by separate and
distinct facts. Finally, the trial court did not abuse its discretion in sentencing,
and an aggregate sentence of nineteen years is not inappropriate. Therefore, we
affirm.
[48] Affirmed.
Bailey, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015 Page 26 of 26