Richard Lynell Pigott v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: October 11, 2023
• Docket: 22A-CR-02999
• Status: Published

Opinion

FILED Oct 11 2023, 8:38 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Justin R. Wall Theodore E. Rokita Wall Legal Services Attorney General Huntington, Indiana Robert M. Yoke Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Richard Pigott, October 11, 2023 Appellant-Defendant, Court of Appeals Case No. 22A-CR-2999 v. Appeal from the Huntington Superior Court State of Indiana, The Honorable Appellee-Plaintiff Amy C. Richison, Magistrate Trial Court Cause No. 35D01-2202-F5-63

Opinion by Judge Vaidik Judge Tavitas concurs. Judge Foley dissents with separate opinion.

Court of Appeals of Indiana | Opinion 22A-CR-2999 | October 11, 2023 Page 1 of 15 Vaidik, Judge.

Case Summary [1] Richard Lynell Pigott was convicted of Level 5 felony dealing in

methamphetamine (possession with intent to deliver) after he was found with

methamphetamine residue on a digital scale. He appeals, arguing there is

insufficient evidence that he (1) possessed the methamphetamine or (2)

intended to deliver it. We find sufficient evidence that Pigott possessed

methamphetamine but insufficient evidence that he intended to deliver it. We

therefore reverse Pigott’s conviction for Level 5 felony dealing in

methamphetamine and remand to the trial court with instructions to enter

judgment of conviction for Level 6 felony possession of methamphetamine and

resentence Pigott accordingly.1

Facts and Procedural History [2] Around 2:50 a.m. on December 4, 2021, several police officers were at a truck

stop in Huntington when they saw the driver and front-seat passenger of an

SUV “acting very suspicious,” both “trying to keep an eye on [the officers], but

also at the same time hide their face[s].” Tr. Vol. II p. 150. One officer

recognized the passenger, believed he had an arrest warrant, and called dispatch

1 Pigott also argues the sentence imposed by the trial court is inappropriate, but because we remand for resentencing, we do not address this argument.

Court of Appeals of Indiana | Opinion 22A-CR-2999 | October 11, 2023 Page 2 of 15 to confirm. Before dispatch could do so, the SUV sped out of the parking lot.

After confirming the warrant, officers caught up to the SUV and pulled it over.

Officers approached the SUV and ordered the front-seat passenger to exit. As he

did, the officers smelled the odor of raw marijuana coming from the SUV. The

officers ordered the driver to exit the SUV and learned he also had a warrant.

[3] Officers then saw Pigott in the back seat “kind of crouching down, hiding his

face, and talking on the phone.” Id. at 153. There was a backpack on the seat

next to Pigott, and Pigott said it belonged to him. Officers ordered Pigott to exit

and then searched the SUV and Pigott’s backpack. Inside the backpack were a

digital scale lined with methamphetamine residue, over $2,600 in cash, spoons,

a jar of marijuana, and Pigott’s wallet. Pigott told police that the marijuana and

cash belonged to him but claimed the scale “shouldn’t be in there” and was not

his. Id. at 169. When police asked Pigott about the residue on the scale, his

behavior changed. He “immediately lessened his eye contact,” “his voice

quivered frequently,” and “he stumbled on his words.” Id. at 170. Pigott

claimed he earned the cash working for a tree company, but he had never

worked for the company. Police also seized and searched Pigott’s phone, and

they found Facebook Messenger conversations indicating that Pigott had been

selling methamphetamine and heroin to various people between about 5:30

p.m. on December 3 and 2:35 a.m. on December 4. Ex. 29.

[4] The State charged Pigott with Level 5 felony dealing in methamphetamine

(possession with intent to deliver), Level 6 felony possession of

methamphetamine, and Class B misdemeanor possession of marijuana. A jury

Court of Appeals of Indiana | Opinion 22A-CR-2999 | October 11, 2023 Page 3 of 15 trial was held in November 2022. Two police officers testified that the smallest

drug amount that is bought and sold is called a “point,” which is 0.1 gram. Tr.

Vol. II pp. 148-49, 230. A forensic scientist from the state crime lab testified that

he scraped some of the methamphetamine residue off the digital scale for

testing, that he left the rest of the residue on the scale, and that the weight of the

residue he scraped off for testing was too small to be measured, meaning it was

less than 0.01 gram.

[5] The jury found Pigott guilty as charged. The trial court merged the

methamphetamine-possession count into the methamphetamine-dealing count

to avoid double jeopardy and entered judgment of conviction on the dealing

and possession-of-marijuana counts. The court imposed concurrent sentences of

four years for dealing in methamphetamine and sixty days for possession of

marijuana.

[6] Pigott now appeals.

Discussion and Decision [7] Pigott contends the evidence is insufficient to support his conviction for Level 5

felony dealing in methamphetamine.2 When reviewing sufficiency-of-the-

evidence claims, we neither reweigh the evidence nor judge the credibility of

witnesses. Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015). We will only

2 Pigott does not challenge his conviction for possession of marijuana.

Court of Appeals of Indiana | Opinion 22A-CR-2999 | October 11, 2023 Page 4 of 15 consider the evidence supporting the judgment and any reasonable inferences

that can be drawn from the evidence. Id. A conviction will be affirmed if there is

substantial evidence of probative value to support each element of the offense

such that a reasonable trier of fact could have found the defendant guilty

beyond a reasonable doubt. Id.

[8] Dealing in methamphetamine is governed by Indiana Code section 35-48-4-1.1,

which provides, in relevant part:

(a) A person who:

(1) knowingly or intentionally:

(A) delivers; or

(B) finances the delivery of;

methamphetamine, pure or adulterated; or

(2) possesses, with intent to:

(A) deliver; or

(B) finance the delivery of;

methamphetamine, pure or adulterated;

commits dealing in methamphetamine, a Level 5 felony[.]

Court of Appeals of Indiana | Opinion 22A-CR-2999 | October 11, 2023 Page 5 of 15 The State charged Pigott under subsection (a)(2)(A), meaning it had to prove

beyond a reasonable doubt that Pigott knowingly or intentionally possessed

methamphetamine with intent to deliver. Appellant’s App. Vol. II p. 86. Pigott

argues that he did not possess methamphetamine and that, even if he did, he

did not intend to deliver it.3

[9] As an initial matter, there is no dispute that the possession at issue in this case is

the possession of the methamphetamine residue found on the digital scale. The

State did not argue at trial and does not argue on appeal that the possession

element can be satisfied by the evidence that Pigott possessed and sold larger

amounts of methamphetamine earlier in the night. To the contrary, during its

closing argument, the State asserted, “So the methamphetamine that was on

that scale was part of his intent to deliver drugs to people in our community.

You should be firmly convinced that that was the Defendant’s intent with the

methamphetamine that was found on the scale in his possession.” Tr. Vol. III

p. 2 (emphasis added). If the evidence of the earlier drug-dealing activity had

been the basis for the prosecution, the State presumably would have charged

3 Pigott also contends that the lab scientist “presumably” removed “as much of the residue as possible, if not all of it,” from the digital scale and that the State “has thus permanently altered the residue evidence in this matter, such that there is no way for Pigott to ever have independent laboratory testing conducted.” Appellant’s Br. pp. 14-15. He continues, “This essentially equates to a spoliation of evidence argument and one that Pigott would ask this Court to hold the State accountable for by finding that due to the State’s actions, Pigott’s conviction for Count I must be reversed pursuant to the holding in [Cahoon v. Cummings, 734 N.E.2d 535 (Ind. 2000)].” Id. at 15. Pigott doesn’t cite anything in the record to support this claim, and the lab scientist testified that when he scraped the scale for testing, he “got as much as [he] was able to while still being able to leave some of the residue behind[.]” Tr. Vol. II p. 206. Moreover, Pigott gives no indication he made this spoliation argument in the trial court or that he asked to conduct independent testing, and he cites no authority applying civil spoliation doctrine in the criminal context. For all these reasons, Pigott waived this argument.

Court of Appeals of Indiana | Opinion 22A-CR-2999 | October 11, 2023 Page 6 of 15 Pigott with actual delivery under subsection (a)(1) of the statute rather than

with possession with intent to deliver under subsection (a)(2). The State likely

chose not to do so because it didn’t have the alleged drugs or buyers. In any

event, the only issues before us now are whether Pigott possessed the

methamphetamine residue on the scale and, if so, whether he intended to

deliver that methamphetamine.4

I. Possession [10] Possession can be actual or constructive. Gray v. State, 957 N.E.2d 171, 174

(Ind. 2011). Actual possession occurs when the person has direct physical

control over the item. Id. Pigott contends that because the methamphetamine

was in a backpack on the seat next to him, he was not in actual possession of it.

The State does not dispute this point.

[11] Pigott also argues he was not in constructive possession of the

methamphetamine. A person constructively possesses an item when the person

has both the capability and intent to maintain dominion and control over it. Id.

Pigott concedes he was capable of maintaining dominion and control over the

methamphetamine but contends there is insufficient evidence he intended to do

4 The dissent takes the position (not advanced by the State) that a person can be convicted of possession with intent to deliver if the person possesses some tiny, unmarketable amount of a drug but has the general intent to acquire and sell a larger amount of the drug at some unknown time in the future. This sounds eerily similar to the plot of the 2002 Steven Spielberg/Tom Cruise science-fiction film “Minority Report,” which depicted a “pre-crime” law-enforcement system in which people are arrested and incarcerated for crimes they have not yet committed. We are confident this is not what our legislature had in mind when drafting the possession-with-intent-to-deliver statutes.

Court of Appeals of Indiana | Opinion 22A-CR-2999 | October 11, 2023 Page 7 of 15 so. We disagree. The intent element can be satisfied by demonstrating a

defendant’s knowledge of the presence and nature of the item, which can be

shown by, among other things, the item’s proximity to the defendant and the

mingling of items with other items the defendant owns. Id. at 174-75. Here, the

methamphetamine was in the backpack right next to Pigott, and the backpack

contained several other items belonging to Pigott, including his wallet. Also,

Pigott acted nervous when asked about the scale and the residue. This evidence

is sufficient to prove constructive possession of the methamphetamine.

II. Intent to Deliver [12] Pigott contends that even if he possessed the methamphetamine residue, there is

insufficient evidence that he intended to deliver it. On this point, we agree with

Pigott. As he notes, the State’s evidence established that the smallest drug

amount that is bought and sold is 0.1 gram and that the weight of the residue on

the digital scale was much lower than that. The State doesn’t direct us to any

evidence that Pigott intended to sell, or to try to sell, the minuscule amount of

methamphetamine found on the scale.5

5 The State repeatedly cites the lab scientist’s testimony that the digital scale had methamphetamine “caked onto it.” Tr. Vol. II p. 205. To the extent the State hopes to create the impression that there was a significant or sellable amount of methamphetamine on the scale, the photos of the scale that were admitted into evidence show otherwise. See Exs. 4, 7, 9. And the scientist’s full description of the residue was as follows: [W]hen I received the item it just had a powdery material kind of caked onto it or lined onto it similar to if you had a bag of flour that -- and then you emptied that bag of flower [sic] into a bowl, you’re still going to kind of get that white kind of -- that’s kind of lining the bag of it. Tr. Vol. II p. 205.

Court of Appeals of Indiana | Opinion 22A-CR-2999 | October 11, 2023 Page 8 of 15 [13] The State cites several possession-with-intent-to-deliver cases where convictions

were affirmed, but all of them involved measurable, sellable quantities of drugs.

See Eaton v. State, 889 N.E.2d 297 (Ind. 2008) (three grams or more of cocaine),

reh’g denied; Adamov v. State, 536 N.E.2d 281 (Ind. 1989) (more than three grams

of heroin); Mason v. State, 532 N.E.2d 1169 (Ind. 1989) (more than three grams

of heroin); Durstock v. State, 113 N.E.3d 1272 (Ind. Ct. App. 2018) (six grams of

fentanyl), trans. denied.

[14] Much of the State’s intent-to-deliver argument focuses on the evidence that

Pigott was dealing drugs in the hours before the traffic stop: the Facebook

messages on his phone and his possession of the digital scale, spoons, and a

large amount of cash. But this evidence only shows, at most, that Pigott had

dealt drugs in the recent past. Pigott was not charged with delivering drugs

under subsection (a)(1) of Section 35-48-4-1.1. He was charged with possessing

the methamphetamine residue on the scale with intent to deliver it under

subsection (a)(2) of the statute. Again, there is no evidence whatsoever that

Pigott was in the business of selling drug residue or that he was going to try to

sell this specific residue, and the State’s own evidence shows that there is no

market for methamphetamine residue.

[15] In sum, the issue here isn’t whether Pigott dealt drugs earlier that night. The

issue is whether the State proved that Pigott intended to deal the

methamphetamine residue found on the digital scale. Not only did the State fail

to prove that, but its own evidence supported the opposite conclusion.

Therefore, we reverse Pigott’s conviction for Level 5 felony dealing in

Court of Appeals of Indiana | Opinion 22A-CR-2999 | October 11, 2023 Page 9 of 15 methamphetamine. However, because there is evidence that Pigott possessed

the residue, we remand the case to the trial court with instructions to enter

judgment of conviction for Level 6 felony possession of methamphetamine and

to resentence Pigott accordingly.

[16] Reversed and remanded.

Tavitas, J., concurs.

Foley, J., dissents with separate opinion.

Court of Appeals of Indiana | Opinion 22A-CR-2999 | October 11, 2023 Page 10 of 15 Foley, Judge, dissent.

[17] I respectfully dissent from Part II of the majority’s opinion. The majority

concludes that the evidence was insufficient to prove that Pigott intended to

deal the methamphetamine residue found on the digital scale. Inherent in the

majority’s holding is that the possession with intent to deliver statute requires a

defendant to intend to deliver a minimal amount of methamphetamine and the

specific methamphetamine found in the defendant’s possession. I view the

majority’s holding to add language to the statute that does not exist.

[18] To convict Pigott of dealing in methamphetamine as a Level 5 felony, the State

was required to prove that he possessed methamphetamine with the intent to

deliver methamphetamine. Ind. Code § 35-48-4-1.1(a)(2). “Intent, being a

mental state, can only be established by considering the behavior of the relevant

actor, the surrounding circumstances, and the reasonable inferences to be

drawn therefrom.” Richardson v. State, 856 N.E.2d 1222, 1227 (Ind. Ct. App.

2006), trans. denied. Circumstantial evidence showing possession with intent to

deliver may support a conviction. Id. The statute does require evidence in

addition to the weight of the drug to prove the elements of intent to deal. 6

However, there is no requirement of proof of a specific amount or minimum

6 “A person may be convicted of an offense under subsection (a)(2) only if: (1) there is evidence in addition to the weight of the drug that the person intended to deliver or finance the delivery of the drug [.]” I.C. 35-48-4- 1.1(b)(1).

Court of Appeals of Indiana | Opinion 22A-CR-2999 | October 11, 2023 Page 11 of 15 amount of methamphetamine a defendant must possess to be convicted. See

I.C. § 35-48-4-1.1(a)(2).

[19] Thus, as there is no statutory minimum amount of methamphetamine required

to prove the elements of the crime for which Pigott was convicted, we must

consider the minimal weight of the methamphetamine in conjunction with the

other evidence of Pigott’s intent to deal. When reviewing sufficiency of

evidence to support a conviction, we consider only the probative evidence and

reasonable inferences supporting the fact-finder’s decision. Parks v. State, 113

N.E.3d 269, 272 (Ind. Ct. App. 2018).

It is the fact-finder’s role, and not ours, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when we are confronted with conflicting evidence, we consider it most favorably to the trial court’s ruling. We affirm a conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence; rather, the evidence is sufficient if an inference reasonably may be drawn from it to support the trial court’s decision.

Id. at 272–73 (internal citations omitted).

[20] Possession of a small quantity of a drug does not mean that the intent to deliver

cannot be established, if there is other evidence of intent to deliver. Here, the

evidence demonstrated that Pigott had possessed and sold methamphetamine to

numerous individuals in the hours before he was arrested, and Pigott’s phone

Court of Appeals of Indiana | Opinion 22A-CR-2999 | October 11, 2023 Page 12 of 15 contained a detailed log of his activities and drug transactions on Facebook

Messenger. In fact, the messages to set up deals went all the way until 2:35

a.m., and it appeared that Pigott was still in the process of setting up

prospective deals at the time of the last message. The evidence clearly indicated

that the methamphetamine residue found on the scale had been part of the

dealing Pigott engaged in prior to the traffic stop and could or would be

commingled with additional methamphetamine for the deals Pigott had

scheduled in the hours after the stop. Further, his possession of the digital scale

and over $2,600 in cash, his change in demeanor when police asked him about

his digital scale, his statement that the scale “shouldn’t be there,” and his

dishonest explanation for how he obtained the large amount of cash all support

the conclusion that Pigott had the intent to deliver methamphetamine despite

only possessing the methamphetamine residue on the scale at the time of his

arrest. Tr. Vol. II pp. 169–70. In determining whether Pigott committed the

offense charged, the jury was free to weigh and consider the minimal amount of

methamphetamine found in Pigott’s possession along with the other evidence of

his intent to deliver methamphetamine. Our standard of review prevents us

from reweighing the evidence or judging the credibility of the witnesses.

[21] Moreover, in finding that the State was required to prove that Pigott intended to

deliver the specific residue found on the scale in order to be convicted, the

majority inserts language into statute that is not present. Statutory

interpretation is a function for the courts, and our goal in statutory

interpretation is to determine, give effect to, and implement the intent of the

Court of Appeals of Indiana | Opinion 22A-CR-2999 | October 11, 2023 Page 13 of 15 legislature as expressed in the plain language of its statutes. Kelley v. State, 166

N.E.3d 936, 937 (Ind. Ct. App. 2021). When a statute is clear and

unambiguous, we apply the rules of statutory construction and interpret

statutory language in its plain, ordinary, and usual sense. Id. We presume that

the legislature intended for the statutory language to be applied in a logical

manner consistent with the statute’s underlying policy and goals. Rodriguez v.

State, 129 N.E.3d 789, 793 (Ind. 2019).

[22] The plain language of the statute requires that a defendant possess

methamphetamine, with no minimum amount necessary, with the intent to

deliver methamphetamine. If our legislature had intended to exclude small

quantities of methamphetamine from forming the basis of criminal liability

under Indiana Code section 35-48-4-1.1(a)(2) or require a defendant specifically

intend to deliver the methamphetamine in his possession, it could have elected

to do so. Other subsections of the same statute contain requirements of

minimum quantities necessary to elevate the offense to a higher level of felony.

See, e.g., I.C. § 35-48-4-1.1(c) (“The offense is a Level 4 felony if: (1) the

amount of the drug involved is at least one (1) gram but less than five (5) grams;

or (2) the amount of the drug involved is less than one (1) gram and an

enhancing circumstance applies.). Because the statute does not contain

language requiring a minimum amount of methamphetamine, the plain

language of the statue required the State to prove that a defendant possess some

quantity of methamphetamine with the intent to deliver methamphetamine.

Court of Appeals of Indiana | Opinion 22A-CR-2999 | October 11, 2023 Page 14 of 15 [23] I conclude that the State presented sufficient evidence to support Pigott’s

conviction for dealing in methamphetamine and would affirm his conviction.

Court of Appeals of Indiana | Opinion 22A-CR-2999 | October 11, 2023 Page 15 of 15