Ricci Dale Davis, Jr. v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Jun 02 2015, 9:10 am
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 establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeremy K. Nix Gregory F. Zoeller
Huntington, Indiana Attorney General of Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ricci Dale Davis, Jr., June 2, 2015
Appellant-Defendant, Court of Appeals Case No.
35A02-1411-CR-804
v. Appeal from the Huntington
Superior Court.
State of Indiana, The Honorable Jeffrey R.
Heffelfinger, Judge.
Appellee-Plaintiff.
Cause No. 35D01-1405-FA-128
Riley, Judge
Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015 Page 1 of 19
STATEMENT OF THE CASE
[1] Appellant-Defendant, Ricci Dale Davis, Jr. (Davis), appeals his conviction for
dealing in methamphetamine within 1,000 feet of a youth program center, a
Class A felony, Ind. Code § 35-48-4-1.1(a)(1)(A),(b)(3)(B)(iv) (2013).
[2] We affirm.
ISSUES
[3] Davis raises three issues on appeal, which we restate as follows:
(1) Whether the trial court abused its discretion by failing to instruct the jury on
lesser-included offenses of dealing in methamphetamine;
(2) Whether the trial court abused its discretion by excluding evidence regarding
the accuracy of the State’s measurement of distance between Davis’ house and
two youth program centers; and
(3) Whether Davis’ sentence is inappropriate in light of the nature of the offense
and his character.
FACTS AND PROCEDURAL HISTORY
[4] Shortly before 11:00 p.m. on May 19, 2014, a man called the Huntington
County Sheriff’s Department on its non-emergency line and reported that he
had a warrant and “was strung out on meth and to come get him and take it all
out of his house.” (Tr. p. 99). In response to the call, the Sheriff’s Department
dispatched the Huntington Police Department to 533 East Franklin Street,
Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015 Page 2 of 19
Huntington, Indiana, upon verification that the occupant thereof, Davis, had an
active warrant.
[5] When the police officers arrived at the residence and were positioning
themselves around the property, Greggory Fisher (Fisher) emerged from the
house. Detective Captain (now Chief) Chad Hacker (Chief Hacker) intercepted
him, and Fisher confirmed that Davis was present and indicated that
methamphetamine was being manufactured inside the house. The possibility of
an active methamphetamine lab necessitated special protocol for searching and
evacuating the residence. The officers knocked on the front door, and Joshua
Dyer (Dyer) and Davis’ wife, Melinda Beougher (Beougher), came outside to
speak with the officers. They advised that two young children were asleep in
the living room, so the officers permitted Dyer to return to the house to retrieve
them. During this time, Davis’ roommate, Rachelle Lesh (Lesh), and Vic
Bowling attempted to exit the house through the back door and were corralled
by the police for questioning. Once the first floor had been cleared, the officers
allowed Beougher, at her request, to go back inside to summon Davis from the
second floor.
[6] Fifteen minutes after the police had first knocked on the door, Davis came
downstairs, along with Thomas Hale (Hale) and Amanda (Casto). The officers
escorted him outside, placed him in handcuffs, and administered his Miranda
warnings. Davis indicated that he and Hale had been manufacturing
methamphetamine on the second floor of the house. Davis further stated that
when they heard the officers knocking on the door, Hale began hiding the
Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015 Page 3 of 19
supplies. Thus, Davis offered to accompany the officers inside to show them
where everything was. For safety reasons, the officers would not allow Davis
back into the house, but upon questioning as to whether there was an active lab
that could pose any danger to the officers, Davis assured them that everything
was safe.
[7] As the officers climbed the staircase, they detected the “very distinct,”
“overwhelming chemical” odor associated with manufacturing
methamphetamine. (Tr. pp. 247, 262). The odor was most potent in the
upstairs bathroom, emanating from the toilet and the sink in particular. Once
they confirmed that there was nobody else in the house, the officers went back
outside to retrieve their protective gear. After obtaining consent to search the
home from the landlord, several officers trained in dismantling
methamphetamine labs entered the house to process the scene.
[8] No active methamphetamine lab was discovered, nor did the police officers
recover any finished methamphetamine product. However, spread throughout
nearly every room of the house, the officers found evidence of all of the
ingredients and other equipment necessary to manufacture methamphetamine,
including: numerous empty boxes and blister packs that had contained
pseudoephedrine pills; empty boxes and the water bladders from cold
compresses and the ammonium nitrate that had been extracted therefrom;
lithium batteries and empty battery packages; salt; several bottles of drain
cleaner (lye); Liquid Fire (sulfuric acid); three empty one-gallon containers of
Coleman fuel (an organic solvent); coffee filters; plastic tubing; funnels; Ziploc
Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015 Page 4 of 19
bags; side cutters (for stripping the lithium out of the batteries); gas masks; and
latex gloves. The search also revealed a plastic bag containing a liquid
substance; a bottle that had been used as a “one-pot” (first stage of
methamphetamine manufacturing); at least six bottles that had been used as
hydrochloric gas (HCL) generators (second stage of methamphetamine
manufacturing), one of which was located on the upstairs toilet lid; a cast iron
skillet coated in white powder; a pill crusher; several loose syringes; and
“partial directions on a couple steps of manufacturing methamphetamine.” (Tr.
pp. 206, 211). Testing on the liquid substance indicated the presence of
methamphetamine, but the sample was too diluted to run a confirmatory test.
[9] On May 20, 2014, the State filed an Information, charging Davis with a Class A
felony for dealing methamphetamine within 1,000 feet of a youth program
center. I.C. § 35-48-4-1.1(b)(3)(B)(iv) (2013).1 On October 1 through October
3, 2014, the trial court conducted a jury trial. At the close of the evidence, the
jury returned a guilty verdict. On October 28, 2014, the trial court held a
sentencing hearing. After entering a judgment of conviction on the Class A
felony, the trial court imposed a fifty-year sentence, fully executed in the
Indiana Department of Correction (DOC).
[10] Davis now appeals. Additional facts will be provided as necessary.
1
The evidence established that Davis’ house was 970 feet from the Trinity United Methodist Church, which
housed a preschool and other youth programs, and 940 feet from the Boys & Girls Club of Huntington
County.
Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015 Page 5 of 19
DISCUSSION AND DECISION
I. Jury Instruction
[11] Davis first claims that the trial court erred by refusing to tender his proposed
instruction on lesser-included offenses to the jury. “The manner of instructing a
jury is left to the sound discretion of the trial court.” Albores v. State, 987 N.E.2d
98, 99 (Ind. Ct. App. 2013), trans. denied. A trial court’s decision to give or
refusal to give a jury instruction is subject to review only for an abuse of
discretion. Id.
[12] In this case, Davis tendered a proposed instruction which informed the jury that
if it found him “not guilty of the charged offense then you may consider
whether the Accused is guilty of the included offenses.” (Appellant’s App. p.
44). Specifically, the instruction identified possession of precursors with intent
to manufacture a controlled substance, maintaining a common nuisance, and
possession of methamphetamine as lesser-included offenses of dealing in
methamphetamine. Our supreme court has developed a three-part analysis that
the trial court must engage in when determining whether to include a jury
instruction on a lesser-included offense. See Wright v. State, 658 N.E.2d 563,
566 (Ind. 1995).
[13] First, the trial court must
compare the statute defining the crime charged with the statute
defining the alleged lesser included offense. If
(a) the alleged lesser included offense may be established by “proof
of the same material elements or less than all the material elements”
defining the crime charged, or
Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015 Page 6 of 19
(b) the only feature distinguishing the alleged lesser included offense
from the crime charged is that a lesser culpability is required to
establish the commission of the lesser offense,
then the alleged lesser included offense is inherently included in the
crime charged.
Id. (internal citations and footnote omitted). If an offense is inherently included
in the charged offense, the trial court should proceed directly to the third step of
the analysis. Id. at 566-57.
[14] Second, if the first prong indicates that the alleged lesser-included offense is not
inherently included in the charged offense, then the trial court
must compare the statute defining the alleged lesser included offense
with the charging instrument in the case. If the charging instrument
alleges that the means used to commit the crime charged include all of
the elements of the alleged lesser included offense, then the alleged
lesser included offense is factually included in the crime charged, and
the trial court should proceed to step three below.
Id. at 567 (internal citations omitted). If the alleged lesser offense is neither
inherently nor factually included in the charged crime, the trial court need not
give the requested lesser-included offense instruction. Id.
[15] The third and final step of the analysis provides that
if a trial court has determined that an alleged lesser included offense is
either inherently or factually included in the crime charged, it must look
at the evidence presented in the case by both parties. If there is a
serious evidentiary dispute about the element or elements
distinguishing the greater from the lesser offense and if, in view of this
dispute, a jury could conclude that the lesser offense was committed
but not the greater, then it is reversible error for a trial court not to give
an instruction, when requested, on the inherently or factually included
lesser offense. If the evidence does not so support the giving of a
Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015 Page 7 of 19
requested instruction on an inherently or factually included lesser
offense, then a trial court should not give the requested instruction.
Id. (internal citation and footnote omitted).
[16] On appeal, Davis concedes that possession of methamphetamine is neither
inherently nor factually included in the crime of dealing in methamphetamine.
Accordingly, we will address the other alleged lesser-included offenses in turn.
A. Possession of Precursors with Intent to Manufacture
[17] Davis’ tendered final instruction stated, in part, that
[t]he crime of Possession of Chemical Reagents or Precursors with
Intent to Manufacture Controlled Substances is included in the
charged crime of Dealing in Methamphetamine. . . . If the State did
prove each of the elements of the crime of Possession of Chemical
Reagents or Precursors with Intent to Manufacture Controlled
Substances beyond a reasonable doubt, you may find the accused
guilty of Possession of Chemical Reagents or Precursors with Intent to
Manufacture Controlled Substances, a Class D felony.
(Appellant’s App. pp. 44-45). Davis now contends that possession of precursors
“was necessarily an included offense of the actual manufacture of
methamphetamine.” (Appellant’s Br. p. 11).
[18] According to the test set forth in Wright, we must first compare the two statutes
to determine whether possession of precursors is an inherently lesser-included
offense of dealing in methamphetamine. A person who knowingly or
intentionally manufactures methamphetamine, pure or adulterated, within
1,000 feet of a youth program center commits dealing in methamphetamine as a
Class A felony. I.C. § 35-48-4-1.1(a)(1)(A),(b)(3)(B)(iv) (2013). On the other
hand, “[a] person who possesses two (2) or more chemical reagents or
Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015 Page 8 of 19
precursors with the intent to manufacture a controlled substance commits a
Class D felony.” I.C. § 35-48-4-14.5(e) (2013). This offense is elevated to a
Class C felony if the person who possessed these precursors with an intent to
manufacture did so within 1,000 feet of a youth program center. I.C. § 35-48-4-
14.5(f)(2)(D) (2013). This court has previously determined “that possession of
precursors with intent to manufacture meth is a lesser-included offense of
manufacturing meth.” Fancil v. State, 966 N.E.2d 700, 709 (Ind. Ct. App.
2012), trans. denied. The only issue left to determine is whether there was a
serious evidentiary dispute in the distinguishing element from which the jury
could conclude that the lesser offense was committed but not the greater. See id.
[19] It is well settled that “one may be guilty of possessing chemical precursors with
intent to manufacture without actually beginning the manufacturing process,
whereas the manufacturing process must, at the very least, have been started by
a defendant in order to be found guilty of manufacturing methamphetamine.”
Id. In this case, the undisputed evidence establishes that there was “an
overwhelming chemical smell” emanating from the second floor of the house,
which is associated with cooking methamphetamine. (Tr. p. 262). Davis and
Hale had approximately fifteen minutes to hide and discard evidence while the
police officers cleared the rest of the house, and an HCL generator was found in
the upstairs bathroom where the odor was the strongest. In his initial
conversation with Chief Hacker, Davis stated, “This was going to be the last
time I was going to do this, Hacker.” (Tr. p. 138). Later that night, during his
recorded police interview, Davis explained that people would bring
Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015 Page 9 of 19
pseudoephedrine and other ingredients to the house in exchange for
methamphetamine. Although Davis changed his story several times during his
conversations with the police, the jury heard him admit that he had, at the very
least, assisted both Hale and his former roommate—Donald Parker (Parker)—
to manufacture methamphetamine at 533 East Franklin Street between January
1 and May 20, 2014.
[20] Furthermore, the evidence revealed that Davis and Parker cooked
methamphetamine together in order to pay the rent and other bills. Parker’s
wife, Lesh, explained that she frequently purchased pseudoephedrine and other
supplies because Davis and Parker were cooking methamphetamine “[a]lmost
daily.” (Tr. p. 341). In fact, Lesh specified that Davis had been manufacturing
methamphetamine from 10:00 a.m. to 4:00 p.m. on the date of the officers’
search. Additionally, Fisher testified that after Parker was arrested in April of
2014, Davis continued to cook methamphetamine. Fisher observed Davis
shaking the bottle and could smell the fumes of the cooking process. Casto
testified that she would give Davis pseudoephedrine pills in exchange for
methamphetamine and that she had witnessed him measuring ingredients,
crushing pills, and stripping the lithium out of batteries. In light of all this
evidence, we find that there was no serious evidentiary dispute as to whether
Davis actually manufactured methamphetamine during the relevant time
period. Because a jury could not reasonably have concluded that Davis simply
possessed the precursors but had not begun the manufacturing process, we
Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015 Page 10 of 19
conclude that the trial court properly exercised its discretion in declining to give
Davis’ proffered jury instruction.
B. Maintaining a Common Nuisance
[21] Davis’ proposed jury instruction also stated:
The crime of Maintaining a Common Nuisance is also included in the
charged crime of Dealing in Methamphetamine. . . . If the State did
prove each of the elements of the crime of Maintaining a Common
Nuisance beyond a reasonable doubt, you may find the accused guilty
of Maintaining a Common Nuisance, a Class D felony.
(Appellant’s App. pp. 45-46). To support a conviction of maintaining a
common nuisance, the State must establish that a person
knowingly or intentionally maintains a building, structure, vehicle, or
other place that is used one (1) or more times:
(1) by persons to unlawfully use controlled substances; or
(2) for unlawfully:
(A) manufacturing;
(B) keeping;
(C) offering for sale;
(D) selling;
(E) delivering; or
(F) financing the delivery of;
controlled substances, or items of drug paraphernalia.
I.C. § 35-48-4-13(b) (2013). Davis concedes that maintaining a common
nuisance is not an inherently lesser-included offense because maintaining a
building, structure, vehicle or other place is not an element of dealing in
methamphetamine. Instead, he argues that maintaining a common nuisance is
factually included in the crime of dealing methamphetamine.
Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015 Page 11 of 19
[22] Under the Wright test, we must determine whether the charging instrument
alleges that the means used to commit dealing in methamphetamine include all
of the elements of maintaining a common nuisance. In the Information, the
State charged that between January 1 and May 20, 2014, Davis “knowingly
manufactured methamphetamine, pure or adulterated, and [Davis]
manufactured methamphetamine within one thousand (1,000) feet of a youth
program center.” (Appellant’s App. p. 12). The Information does not charge
that Davis maintained a building, structure, vehicle, or other place to facilitate
the manufacture of methamphetamine. See Sledge v. State, 677 N.E.2d 82, 86
(Ind. Ct. App. 1997) (determining that maintaining a common nuisance was
not a factually lesser-included offense of dealing in cocaine). Thus, the State
was not required to prove that Davis maintained the house at 533 East Franklin
Street. Rather, it was sufficient for the State’s burden of proof to simply
establish that Davis manufactured methamphetamine within 1,000 feet of a
youth program center. We find that—under the facts of this particular case—
maintaining a common nuisance is not factually included in the crime of
dealing in methamphetamine; thus, the trial court properly declined to give this
instruction.
II. Exclusion of Evidence
[23] Davis next claims that the trial court abused its discretion by excluding
evidence that purported to challenge the accuracy of the State’s measurements
between his house and two youth program centers. It is well established that a
trial court has broad discretion in the admission or exclusion of evidence, and
Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015 Page 12 of 19
its rulings are subject to review only for an abuse of that discretion. Charley v.
State, 651 N.E.2d 300, 302 (Ind. Ct. App. 1995). It is an abuse of discretion if
the trial court’s decision is clearly against the logic and effect of the facts and
circumstances before it, or if the trial court misinterprets the law. Keller v. State,
25 N.E.3d 807, 813 (Ind. Ct. App. 2015). Any error in the trial court’s
exclusion of evidence will be disregarded as harmless error unless it affects the
substantial rights of a party. Barnhart v. State, 15 N.E.3d 138, 143 (Ind. Ct.
App. 2014).
[24] The State charged Davis with a Class A felony by alleging that he
manufactured methamphetamine within 1,000 feet of a youth program center.
See I.C. § 35-48-4-1.1(a)(1)(A),(b)(3)(B)(iv) (2013). At trial, the State introduced
evidence demonstrating that Davis’ house was located 970 feet from Trinity
United Methodist Church and 940 feet from the Boys & Girls Club of
Huntington County. These measurements were determined by Huntington
County’s Geographic Information System (GIS) technician, Dathen Strine
(Technician Strine).
[25] Technician Strine testified that his job is to maintain GIS data for Huntington
County and to provide updated information for inclusion on the Beacon
website. The Beacon website, which is maintained by a third party, is
accessible to the public and contains “aerial information, parcel information,”
and various other information gathered from county sources. (Tr. p. 475).
Using aerial photography embedded with GPS data, Technician Strine is
required to create maps that depict 1,000-foot buffers around certain structures
Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015 Page 13 of 19
as prescribed by statute—such as schools. Thus, any individual may access the
Beacon website and view these maps to determine, for example, whether his
house is located within the 1,000-foot range of a school, park, or youth program
center. Upon request, Technician Strine is also able to pinpoint two specific
locations and calculate the distance within a five-foot margin of error using
ArcMap software.
[26] Although Technician Strine used special software to calculate the requested
distances from Davis’ house to the two youth program centers, he relied upon
the same information that is contained on the Beacon website. As such, Davis
sought to introduce the Terms and Conditions of the Beacon website as
evidence that Technician Strine’s calculation could be based on inaccurate data
points. The Terms and Conditions, which a public user must accept prior to
accessing the Beacon website, states:
IMPORTANT DISCLAIMER
By using this site, I agree that I understand and am bound by the
following conditions.
General. The information on this Web Site was prepared from a
Geographic Information System established by Huntington County for
their internal purposes only, and was not designed or intended for
general use by members of the public. Huntington County, its
employees, agents and personnel, makes no representation or warranty
as to its accuracy, and in particular, its accuracy as to labeling,
dimensions, contours, property boundaries, or placement or location
of any map features thereon; nor to the accuracy of any other
information contained thereon.
Disclaimer. Huntington County Digital Data is the property of
Huntington County, Indiana © 2000 Huntington County, IN. All
Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015 Page 14 of 19
graphic data supplied by Huntington County has been derived from
public records that are constantly undergoing change and is not
warranted for content or accuracy. The county does not guarantee the
positional or thematic accuracy of the data. The cartographic digital
file server is not a legal representation of any of the features depicted,
and Huntington County disclaims any assumption of the legal status
they represent. Any implied warranties, including warranties of
merchantability or fitness for a particular purpose, shall be expressly
excluded. The data represents an actual reproduction of data
contained in Huntington County’s computer files. This data may be
incomplete or inaccurate, and is subject to modifications and changes.
Therefore, Huntington County cannot be held liable for errors or
omissions in the data. The recipient’s use and reliance upon such data
is at the recipient’s risk. By using this data, the recipient agrees to
protect, hold harmless and indemnify Huntington County and its
employees and officers. This indemnity covers reasonable attorney
fees and all court costs associated with the defense of Huntington
County arising out of this disclaimer. The recipient may copy this
data into computer memory or onto computer storage devices and
prepare derivative works from it.
(Defendant’s Exh. A). The State objected to the admission of the Terms and
Conditions on grounds that it would be confusing to the jury because the
accuracy of Technician Strine’s measurements—not the accuracy of a member
of the public using the Beacon website to create a measurement—is the relevant
inquiry. Following an offer of proof, the trial court excluded the exhibit from
evidence because “[i]t is a disclaimer of liability . . . . It’s not a declaration as
far as accuracy.” (Tr. p. 516).
[27] Our court has previously determined that “because there is no complex
scientific process necessary to obtain a measurement of distance as distance can
be measured with a yard stick or even a tape measure,” the State need only
“show that the measuring device was accurate and was operated correctly in
Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015 Page 15 of 19
order to allow the admission of the distance as evidence.” Charley, 651 N.E.2d
at 303. Technician Strine testified that he used the aerial imagery and ArcMap
software to calculate the distances, and that he relied upon his years of training
and experience to pinpoint the correct locations. In addition, he explained to
the jury that the company who provides the County with the aerial images
warrants the accuracy of the GPS location of each pixel to within two and one-
half feet. As such, Technician Strine testified that his distance measurements
were correct within a five-foot margin of error, and the determination of
accuracy is ultimately a question for the trier of fact. See id.
[28] In general, evidence is admissible if it is relevant. Ind. Evidence Rule 402.
Relevant evidence is that which “has any tendency to make a fact [of
consequence] more or less probable than it would be without the evidence.”
Evid. R. 401. Even if relevant, the trial court may nevertheless exclude
evidence “if its probative value is substantially outweighed by a danger of one
or more of the following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, or needlessly presenting cumulative evidence.” Evid. R. 403.
Here, the Terms and Conditions do not apply to Technician Strine’s
measurements because he is not a member of the general public accessing the
Beacon website, nor did he even access the Beacon website to make his
calculations. Furthermore, Technician Strine calculated the distances
specifically for the purposes of Davis’ trial; these measurements are not
available on the Beacon website. The aerial photography company warrants
the accuracy of its data to the County—not to a general user of the Beacon
Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015 Page 16 of 19
website who accesses a copy of the aerial image. Similarly, a user who
independently makes a calculation from the aerial images does not receive the
warning about the five-foot margin of error because Technician Strine only
makes that representation when he completes a requested calculation.
Accordingly, we find that any relevancy in the Terms and Conditions as it
purports to challenge the accuracy of the aerial imagery upon which Technician
Strine relied is far outweighed by the likelihood that its admission would simply
mislead the jury. Therefore, we cannot say that the trial court abused its
discretion by excluding the Terms and Conditions from evidence.
III. Appropriateness of Sentence
[29] Lastly, Davis claims that his sentence is inappropriate. The trial court imposed
the maximum sentence of fifty years for a Class A felony, to be fully executed in
the DOC. I.C. § 35-50-2-4 (2013). Even where a trial court has imposed a
sentence that is authorized by statute, our court, “after due consideration of the
trial court’s decision,” may nevertheless revise the sentence if we find that it “is
inappropriate in light of the nature of the offense and the character of the
offender.” Ind. Appellate Rule 7(B). Whether we determine that a sentence is
appropriate “turns on our sense of 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). On
review, we focus on the length of the aggregate sentence and how it is to be
served. Id. Ultimately, our goal is “to attempt to leaven the outliers[] and
identify some guiding principles for trial courts and those charged with
Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015 Page 17 of 19
improvement of the sentencing statutes, . . . not to achieve a perceived ‘correct’
result in each case.” Id.
[30] Looking first to the nature of the offense, we find that Davis was manufacturing
methamphetamine every day for nearly five months in the home that he shared
with his wife (i.e., Beougher), Beougher’s child, and Lesh. He relied upon his
methamphetamine-addicted friends to supply him with ingredients in exchange
for the finished product. Manufacturing methamphetamine is a notoriously
dangerous activity. The combination of toxic chemicals is unsafe to breathe,
and the volatile nature of the ingredients creates a serious risk of a massive
explosion. Yet, Davis chose to manufacture methamphetamine on a daily basis
notwithstanding the fact that he jeopardized numerous human lives each time
he did so. At the time the police officers arrived to execute the arrest warrant,
there were nine other people in the house, including Davis’ wife and two young
children. The fact that the officers recovered two gas masks from the second
floor of the house clearly indicates that Davis was aware of the dangers of
inhaling the methamphetamine fumes, but his manufacturing process was
seemingly undeterred by the two toddlers asleep in the living room. It is
apparent that Davis’ priority was just to feed his own addiction and his friends’
addictions without regard for the consequences.
[31] As to his character, the record reveals that Davis began using illicit drugs at age
fourteen, and was using methamphetamine by age twenty-one. Between the
ages of nineteen and thirty-four, Davis accumulated a significant criminal
history, including six felony and three misdemeanor convictions. His criminal
Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015 Page 18 of 19
resume includes convictions for burglary, theft, forgery, auto theft, possession
of marijuana and methamphetamine, and obtaining a controlled substance by
fraud or deceit. Thus, Davis’ prior incarcerations have clearly been insufficient
to deter him from future criminal conduct. Moreover, Davis has demonstrated
disrespect for the authority of the courts and has rejected the opportunity for
rehabilitation—as evidenced by the fact that his probation was revoked on five
separate occasions, and he failed to successfully complete a drug court program.
At the time of the instant offense, Davis was on probation and had not even
been released from the DOC for a year. Davis is the biological father of one
child. Instead of striving to set a good example for his son and ensuring his
ability to provide support and guidance for his son, Davis rejected prior
opportunities for rehabilitation and chose to maintain his criminal lifestyle. We
cannot say that his sentence is inappropriate.
CONCLUSION
[32] Based on the foregoing, we conclude that the trial court acted within its
discretion in declining to give Davis’ proffered jury instruction on lesser-
included offenses and in excluding the Beacon website’s Terms and Conditions
from evidence. We further conclude that Davis’ sentence is appropriate in light
of the nature of the offense and his character.
[33] Affirmed.
[34] Bailey, J. and Barnes, J. concur
Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015 Page 19 of 19