Opinion

Robert W. Evans v. State of Indiana

Court: Indiana Court of Appeals
Filed: May 1, 2014
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 33.0%

“In order to prove constructive possession, the State must show that the defendant has both (1) the intent to maintain dominion and control and (2) the capability to maintain dominion and control over the contraband.” (citation omitted)

How later courts described this case

“In order to prove constructive possession, the State must show that the defendant has both (1) the intent to maintain dominion and control and (2) the capability to maintain dominion and control over the contraband.” (citation omitted)

Written by the judges who cited it.

The opinion

Pursuant to Ind.Appellate Rule 65(D),

this Memorandum Decision shall not be

regarded as precedent or cited before any

court except for the purpose of May 01 2014, 8:58 am

establishing the defense of res judicata,

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

TIMOTHY P. BRODEN GREGORY F. ZOELLER

Lafayette, Indiana Attorney General of Indiana

RYAN D. JOHANNINGSMEIER

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

ROBERT W. EVANS, )

)

Appellant-Defendant, )

)

vs. ) No. 79A04-1308-CR-386

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE TIPPECANOE SUPERIOR COURT

The Honorable Thomas H. Busch, Judge

Cause No. 79D02-1211-FA-16

May 1, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Chief Judge

Case Summary

Robert Evans appeals his conviction for Class A felony dealing in

methamphetamine. He argues that the trial court improperly admitted evidence regarding

the results of a Draeger pump instrument test, which tests for the presence of ammonia,

without first establishing the test’s reliability. Additionally, Evans claims that the trial

court erred in refusing to instruct the jury on his proposed jury instruction on constructive

possession. We find that the test results were properly admitted and the court did not err

in refusing to give Evans’s tendered jury instruction. We therefore affirm the trial court.

Facts and Procedural History

On an evening in November 2012, Pam Smith and Evans decided to make

methamphetamine together. Evans and Pam went to Evans’s mother’s house to gather

ingredients and tools to make methamphetamine. Tr. p. 231. The items were gathered and

placed inside two backpacks, a black1 backpack and a pink backpack. There was a green

two-liter bottle inside the black backpack. Id. at 189.

After Evans’s mother’s house, Pam and Evans went to Kelley Brickey’s house. The

group ingested methamphetamines before deciding to take a taxi cab to Pam’s house, which

was located at 1533 N. 17th Street in Lafayette, Indiana (“the Smith Residence”), to make

methamphetamine. Evans, Pam, and Brickey went into the house through the back door.

Charles Hill, who lived directly behind the Smith Residence, saw Pam walking around the

There is conflicting testimony as to whether the backpack carried by Evans was green or black.

Compare Tr. p. 50 with Tr. p. 235. However, it is undisputed that Evans was carrying a dark-colored

backpack when he entered the Smith Residence.

side of her house with a man and a woman that he did not recognize. Id. at 41. Pam and

the man were carrying backpacks on their shoulders. Id. at 41, 50.

Once inside the house, Brickey, Pam, and Evans went down into the basement. Pam

and Evans gathered all of the supplies to begin the process of making methamphetamine.

Brickey saw Evans putting pills in the green two-liter bottle. Meanwhile, Pam lit incense

and hung blankets on the windows and at the basement entrance to prevent the smell from

traveling into the other parts of the house.

Meanwhile, Hill went to the Smith Residence to retrieve four movies that he had

lent to one of the occupants of the house. He noticed that the smell inside was a “deadly

chemical smell.” Id. at 44. He grabbed his movies and ran out of the house. Id. at 45.

Once outside, he fell to the ground because he could not stop coughing. Id. After he

returned to his house, he called the police because he “knew [the odor] was something

dangerous.” Id.

Lafayette Police Department Officers Bernard Myers and Ryan French were

dispatched to the Smith Residence in response to Hill’s call. When the officers arrived,

they walked around the house, and Officer Myers noticed that a vent pipe was emitting

exhaust from the furnace that smelled like ammonia—a common smell during the process

of making methamphetamine. The officers then knocked on the door and spoke to

Elizabeth Smith, the primary leaseholder of the house. Elizabeth allowed the officers into

the house to investigate.

The officers asked if there was anyone else in the house, and Elizabeth responded

that her father was upstairs but she did not think anyone else was home. She then checked

the basement door, but it was locked. Elizabeth called out to ask if anyone was in the

basement. Pam, Elizabeth’s daughter, responded, and Elizabeth told Pam that the police

were in the house. About a minute later, Pam emerged from the basement.

Officer Myers noticed that the smell of ammonia was coming from the basement.

Both officers went into the basement to investigate. Before going into the basement, the

officers asked if anyone else was there. No one responded. As the officers walked down

the basement stairs, Officer Myers noticed a blanket covering the threshold of the

basement. Once he pushed aside the blanket, he experienced an overwhelming smell of

ammonia. The smell was so overpowering that it was nearly impossible to breathe. Both

officers coughed and their throats burned from the smell. The police saw Evans sitting on

a chair and Brickey sitting on the bed.

Officer Myers asked both Evans and Brickey to come to him because the odor of

ammonia was so overwhelming. Officer Myers handcuffed Evans, and Officer French

escorted Brickey up the stairs. Pam was also handcuffed. The officers did not search the

basement or collect any evidence because it was unsafe to do so. Id. at 65. After exiting

the basement, the officers called the fire department, emergency medical services, and the

Indiana State Police Lab Team. Evans, Brickey, and Pam were arrested that evening for

their involvement in the production of methamphetamine.

Indiana State Police Trooper Ryan Royer, a member of the Indiana State Police

Clandestine Laboratory Response Team, was dispatched to the Smith Residence and

arrived around 1:00 a.m. with Troopers Sean Schaffer and Kent Wainscott. Trooper Royer

found several items that were associated with manufacturing methamphetamine, including

Rooto drain opener, lithium batteries, aluminum foil, coffee filters, Coleman camp fuel,

salts, and cold packs containing ammonium nitrate. Id. at 120, 124-125, 139.

Trooper Royer also found a green soda bottle that he believed was the reaction

vessel used to produce methamphetamine. He performed a Draeger test2 to confirm that it

was used to produce methamphetamine,3 and the bottle tested positive for ammonia or

another basic amine.4 According to Trooper Royer, one can distinguish between ammonia

and other basic amines based on differences in odor and temperature. Although Trooper

Royer was not able to observe these differences because he was wearing gloves and a mask,

Trooper Schaffer removed his personal protection equipment just as Trooper Royer was

completing the Draeger test on the green bottle and noticed that it smelled like ammonia.

Trooper Royer also examined a bottle cap from the basement and found methamphetamine

residue on it. Id. at 171. Based on the items found, his observations in the basement, and

the tests performed, Trooper Royer concluded that methamphetamine was being produced

in the basement.

The State charged Evans with Class A felony dealing in methamphetamine, Class

C felony possession of a Schedule II controlled substance, and Class B felony possession

of methamphetamine.5 Appellant’s App. p. 82-84.

A Draeger test is a test where a tube is used to test for the presence and concentration of a particular

chemical compound. Tr. p. 130.

Trooper Royer tested the two-liter bottle for ammonia because anhydrous ammonia is one of the

ingredients necessary to make methamphetamine. Tr. p. 112.

The tube labeled “ammonia” will test positive if ammonia or other basic amines are present in the

chemical compound that is tested.

Evans was charged with Class A felony dealing in methamphetamine instead of Class B felony

dealing in methamphetamine because the Smith Residence is within 1000 feet of a public park. See Ind.

Code § 35-48-4-1(b)(3)(B)(ii).

Just before trial, Evans filed a motion to suppress the results of the Draeger test

because the State did not establish the test’s reliability. Id. at 71. The trial court held a

hearing on the motion to suppress. At the hearing, Trooper Royer testified that he used the

Draeger test to determine if ammonia was present in the reaction vessel. The trial court

decided to withhold judgment until a chemist could testify about whether the Draeger test

is sufficiently reliable. Tr. p. 26-27.

The following day, Hailey Newton, an employee of the Laboratory Division of the

Indiana State Police, testified outside the presence of the jury. She explained that she

conducted a validation study of the Draeger test. According to Newton, there were no

instances of false positives or false negatives. Id. at 86. The results of her study were also

presented before the Clandestine Laboratory Investigating Chemist Association, and she

was not familiar with any studies indicating that Draeger tests are unreliable. Id. at 87.

The test is also used by the Drug Enforcement Agency and the Occupational Safety and

Health Administration. Id.

Newton explained that a positive result on an ammonia Draeger tube indicates that

ammonia or another basic amine is present. Moreover, that information combined with

other observations, such as odor, temperature, or appearance of the chemical, can help one

determine whether the substance tested was ammonia or another basic amine. Id. at 88,

90-91.

Officers must go through an annual eight-hour refresher course, which includes

training on how to conduct a Draeger test. Ultimately, Newton stated that she believed the

Draeger test is reliable. Id. at 86, 95-96.

After Newton’s testimony, the trial court concluded:

The fact that ammonia or another basic amine was present in the bottle, I

think is the sort of thing that is generally accepted in the scientific community

as the proper use of a Draeger test and there is no evidence that it isn’t reliable

and there is the evidence presented today that it is reliable. The---and

especially in the context of how the jury should interpret the smell of

ammonia that one or more witnesses will---at least two witnesses will testify

to, the fact that there is a particular bottle which tested to have contained a

basic amine is going to be, again, useful information that they won’t be able

to deduce from their own experience, so that as a skilled witness, not as a

scientist, the officer can testify as to what the results of his test were to the

extent of presence or absence. So the motion in limine is overruled.

Id. at 100-101. The trial court also distinguished the facts in this case from those in West

v. State, 805 N.E.2d 909 (Ind. Ct. App. 2004), trans. denied. In that case the trial court

excluded the results of the Draeger test because an officer provided only an overview of

his training and how the Draeger test functions. Here, however, a chemist specifically

testified about the reliability of the Draeger test. Id. at 101.

At the conclusion of the jury trial, Evans proposed a constructive-possession-in-a-

home instruction, which stated:

Possession of something may take two forms. One can possess an

item directly, meaning that he/she has actual physical control over the item.

Or, one can possession [sic] something constructively, meaning that he/she

has the capability and intent to possess the item, even though actual physical

control is absent. Evidence has been presented that other individuals may

have visited at, or resided in, Elizabeth Smith’s home. As such, possession

of those premises was not exclusive to her. When possession of the premises

on which drugs or their precursors is not exclusive, the inference of intent to

maintain dominion and control over the items must be supported by

additional circumstances pointing to the accused’s knowledge of the nature

of the drugs and/or precursors and their presence in her home. These

additional circumstances can include incriminating statements the accused

made, attempted flight or furtive gestures, proximity of the substances to the

accused, location of the substances within the accused’s plain view, and the

combining of the substances with other items that the accused owned.

Appellant’s App. p. 59. The trial court denied Evans’s request because the instruction was

already covered by the trial court’s constructive-possession instruction and because it

unnecessarily emphasized that Elizabeth was the primary leaseholder of the Smith

Residence. Tr. p. 317. Instead, the trial tendered Instruction No. 14.156 of the Indiana

Pattern Jury Instructions on possession:

The word “possess” means to own or to exert control over. The word

“possession” can take on several different, but related meanings.

There are two kinds of “possession”: actual possession and

constructive possession. A person who knowingly has direct physical control

of a thing at a given time is then in actual possession of it. A person who,

although not in actual possession, knowingly has both the power and the

intention at a given time to exercise control over a thing, either directly or

through another person or persons, is then in constructive possession of it.

Possession may be sole or joint. If one person alone has actual or

constructive possession of a thing, then possession is sole. If two or more

persons share actual or constructive possession of a thing, then possession is

joint.

Possession may be actual or constructive, and either alone or jointly

with others.

Appellant’s App. p. 32-33; see also Indiana Pattern Jury Instruction No. 14.156—Criminal

(3d ed. 12/2003).

The jury found Evans guilty of all charges. At the sentencing hearing, the trial court

merged Evans’s convictions for Class C felony possession of a Schedule II controlled

substance and Class B felony possession of methamphetamine into his Class A felony

dealing-in-methamphetamine conviction. Tr. p. 378-79. The trial court then sentenced

Evans to forty years in the Department of Correction.

Evans now appeals.

Discussion and Decision

Evans raises two issues on appeal. First, he asserts that the trial court erred in

admitting the results of the Draeger test. Second, he argues that the trial court erred in

refusing to give his proposed jury instruction on constructive possession.

I. Admission of the Draeger Test Results

Evans first contends that the trial court erred in admitting the results of the Draeger

test under Indiana Rule of Evidence 702. We review the trial court’s decision to admit

evidence based on a scientific process under an abuse of discretion standard. Doolin v.

State, 970 N.E.2d 785, 787 (Ind. Ct. App. 2012), trans. denied. An abuse of discretion

occurs where the decision is clearly against the logic and effect of the circumstances. Id.

Under Indiana Rule of Evidence 702(b), expert scientific testimony is admissible

only if reliability is demonstrated to the trial court. Id. Indiana Evidence Rule 702 provides

that:

(a) If scientific, technical, or other specialized knowledge will assist the trier

of fact to understand the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training, or education,

may testify thereto in the form of an opinion or otherwise.

(b) Expert scientific testimony is admissible only if the court is satisfied that

the scientific principles upon which the expert testimony rests are reliable.

In determining whether scientific evidence is reliable, “the trial court must determine

whether such evidence appears sufficiently valid—or, in other words, trustworthy—to

assist the trier of fact.” West, 805 N.E.2d at 913. In so doing, the trial court must make a

preliminary assessment of whether the reasoning or methodology underlying the testimony

is scientifically valid and whether that reasoning or methodology can properly be applied

to the facts in issue. Id.

There is no specific test that must be considered in order to satisfy Rule 702(b). Id.

The reliability of such evidence may be established “by . . . a sufficient foundation to

persuade the trial court that the relevant scientific principles are reliable.” Bond v. State,

925 N.E.2d 773, 779 (Ind. Ct. App. 2010), trans. denied.

Our Supreme Court has explained that the factors enumerated in Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), are helpful in determining whether

evidence is admissible under Indiana Evidence Rule 702(b). Turner v. State, 953 N.E.2d

1039, 1050 (Ind. 2011). The Daubert factors include “whether the scientific theory or

technique (1) can be and has been tested; (2) has been subjected to peer review and

publication; (3) has a known or potential error rate; (4) is governed by maintained standards

controlling its operation; and (5) has gained widespread acceptance in a relevant scientific

community.” Bond, 925 N.E.2d at 779 (citing Daubert, 509 U.S. at 593-94). While all of

these factors and additional factors may be relevant, none alone is dispositive, and not all

of these factors must be present for a trial court to find certain evidence reliable. Id.; see

also McGrew v. State, 682 N.E.2d 1289, 1292 (Ind. 1997). “‘The adoption of Rule 702

reflected an intent to liberalize, rather than to constrict, the admission of reliable scientific

evidence.’” Turner, 953 N.E.2d at 1050 (quoting Sears Roebuck & Co. v. Manuilov, 742

N.E.2d 453, 460 (Ind. 2001)). However, the proponent of the scientific evidence bears the

burden of persuading the trial court that it is more likely than not that the scientific

principles upon which the evidence relies are reliable. Burnett v. State, 815 N.E.2d 201,

209 (Ind. Ct. App. 2004).

Turning to this case, the State established a sufficient foundation to show that the

Draeger test was reliable. Hailey Newton, an employee of the Laboratory Division of the

Indiana State Police, testified that she conducted a validation study involving the Draeger

test. Tr. p. 81-82. In her study, she tested the instrument for cross-reactivity with over

sixty different types of chemicals and each test produced the expected result. Id. at 86.

She never obtained a false positive, and her results did not differ from the manufacturer’s

own documented testing.6 Id. at 85-86. Newton’s study was presented to the Clandestine

Laboratory Investigating Chemist Association. Id. at 87. Additionally, Newton testified

that the test has been in existence since 1937 and that she was not familiar with any studies

indicating that the test is unreliable. Id. Both Newton and Trooper Royer testified that the

test is used by the Drug Enforcement Agency and the Occupational Safety and Health

Administration. Id. at 18, 87.

We find this case distinguishable from West. In West, this Court determined that

the foundational requirements for the reliability of a Draeger test were not established when

an officer only testified about his training in administering the test and general information

about how he performed the test. West, 805 N.E.2d at 913. Here, however, Newton

testified to additional information regarding the Draeger test’s reliability, including a

validation study she performed and that in every instance the Draeger test results were

exactly as expected. Additionally, she testified that she was not familiar with any study

The manufacturer reports that a Draeger test has a standard deviation of ten to fifteen percent, but

this refers to the amount of concentration of the chemical tested. Tr. p. 89. The Draeger test in this case

was used to determine whether the chemical was present in the reaction vessel, not how much of it was

present.

since the test was created in 1937 that indicated that the test is unreliable. Her testimony

focused on the reliability of the Draeger test while the officer’s testimony in West did not.

Evans also contends that the State failed to lay a foundation for the specific

instrument used. Appellant’s Br. p. 7. We note that Evans waived this claim because he

did not object to the fact that Trooper Royer never identified the specifications of the

instrument he used to test the green two-liter bottle. Instead, he only objected to the

reliability of the test itself. Tr. p. 5-6; Appellant’s App. p. 71-72. A defendant may not

argue one ground for objection at trial and then raise a new ground for objection on appeal.

Turner, 953 N.E.2d at 1058. Waiver notwithstanding, Trooper Royer testified that each

instrument comes with specific manufacturer instructions. Officers who use the Draeger

test device are trained in accordance with those instructions. Tr. p. 82. Trooper Royer

testified that he followed the manufacturer’s instructions in performing the test. Id. at 133.

Therefore, Trooper Royer’s failure to identify the specifications of the instrument did not

affect the reliability of the test.

Even if the trial court erred by admitting the Draeger test, that error would have

been harmless. An error in the admission of evidence is harmless “when the conviction is

supported by such substantial independent evidence of guilt as to satisfy the reviewing

court that there is no substantial likelihood that the questioned evidence contributed to the

conviction.” Lafayette v. State, 917 N.E.2d 660, 666 (Ind. 2009). There was overwhelming

evidence that ammonia existed in the reaction vessel. Both Officer Myers and Officer

French smelled ammonia coming from the vent pipe outside the house. Both officers also

testified to an overwhelming smell of ammonia. There were also several independent

pieces of evidence that proved Evans was manufacturing methamphetamine, including the

testimony of both Brickey and Pam. Brickey testified that she saw Evans put pills in the

green two-liter bottle and shake it. Tr. p. 192. Pam also testified that she saw Evans

crushing and using the pills. Id. at 261. Additionally, Pam testified that she saw Evans

“burping” the two-liter bottle. Id. at 246, 277. She also saw Evans strip the batteries and

use the cold packs, lye, mason jar, and Coleman camp fuel to make methamphetamine. Id.

at 247-48.

Even without the results of the Draeger test, we are confident that there was

sufficient independent evidence of guilt that a jury still would have found Evans guilty of

Class A felony dealing in methamphetamine for manufacturing methamphetamine within

one-thousand feet of a public park. Appellant’s App. p. 82.

II. Refusal to Tender Jury Instruction

Evans also contends that the trial court erred in refusing to tender his requested jury

instruction. We will only reverse a trial court’s refusal to give a jury instruction if doing

so amounts to an abuse of discretion. O’Connell v. State, 970 N.E.2d 168, 172 (Ind. Ct.

App. 2012).

We note that the purpose of jury instructions is “‘to inform the jury of the law

applicable to the facts without misleading the jury and to enable it to comprehend the case

clearly and arrive at a just, fair, and correct verdict.’” Id. (quoting Munford v. State, 923

N.E.2d 11, 14 (Ind. Ct. App. 2010)). In determining whether the trial court abused its

discretion by failing to give an instruction, we consider “‘(1) whether the tendered

instruction correctly states the law; (2) whether there was evidence presented at trial to

support giving the instruction; and, (3) whether the substance of the instruction was

covered by other instructions that were given.’” Kane v. State, 976 N.E.2d 1228, 1230-31

(Ind. 2012) (quoting Mayes v. State, 744 N.E.2d 390, 394 (Ind. 2001)). We will only

reverse based upon an instructional error if the defendant affirmatively demonstrates that

the error prejudiced his substantial rights. Washington v. State, 840 N.E.2d 873, 888 (Ind.

Ct. App. 2006), trans. denied.

The trial court tendered Instruction No. 14.156 of the Indiana Pattern Jury

Instructions on possession:

The word “possess” means to own or to exert control over. The word

“possession” can take on several different, but related, meanings.