Douglas Allen Bergfeld v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any Dec 10 2015, 8:24 am
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
David W. Stone, IV Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Douglas Allen Bergfeld, December 10, 2015
Appellant-Defendant, Court of Appeals Case No.
48A02-1503-CR-157
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Jason Childers,
Appellee-Plaintiff. Judge Pro Tem
Trial Court Cause No.
48C01-1303-FD-635 & 48C01-
1309-FD-1733
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Douglas Bergfeld (Bergfeld), appeals the revocation of his
probation and the imposition of his previously suspended sentences.
[2] We affirm.
ISSUE
[3] Bergfeld raises one issue on appeal, which we restate as follows: Whether the
trial court abused its discretion by ordering Bergfeld to serve his previously
suspended sentence after he violated the terms of his probation.
FACTS AND PROCEDURAL HISTORY
[4] On March 24, 2013, Bergfeld was charged under Cause Number 48C01-1303-
FD-635 (Cause FD-635) with Count I, operating a motor vehicle while
intoxicated, a Class A misdemeanor, Ind. Code § 9-30-5-2(b) (2013); and Count
II, operating a motor vehicle while intoxicated with a prior conviction, a Class
D felony, I.C. § 9-30-5-3 (2013). On September 13, 2013, Bergfeld was charged
under Cause Number 48C01-1309-FD-1733 (Cause FD-1733) with theft, a
Class D felony, I.C. § 34-43-4-2 (2013). On May 13, 2012, Cause FD-635 and
Cause FD-1733 were joined for the purposes of a plea agreement. On the same
day, Bergfeld entered a guilty plea to Class D felony operating a vehicle while
intoxicated with a prior conviction in Cause FD-635, and to Class D felony
theft in Cause FD-1733. On June 9, 2014, pursuant to the plea agreement, in
Cause FD-635, the trial court sentenced Bergfeld to the Department of
Correction (DOC), for thirty months, with twenty-four months in home
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detention and six months suspended to supervised probation. In Cause FD-
1733, the trial court sentenced Bergfeld to thirty months, with twelve months in
home detention and eighteen months suspended to supervised probation. The
sentences were to be served consecutively.
[5] On August 1, 2014, the Office of Madison County Home Detention filed a
probation violation in both Causes, stating that Bergfeld committed a battery
and had tested positive for alcohol on July 28, 2014, and on July 29, 2014. On
August 5, 2014, that probation violation was amended to further state that on
July 31, 2014, and on August 1, 2014, Bergfeld tested positive for alcohol with a
BAC of .042% and .064%, respectively. On September 8, 2014, the trial court
determined that Bergfeld had violated the terms of his probation and sanctioned
him by placing him on Sobrietor, an alcohol monitoring device. On February
3, 2015, another probation violation was filed claiming that Bergfeld’s Sobrietor
test results yielded positive alcohol readings on January 4, 2015, and January
14, 2015. A urine test that was also conducted on January 14, 2015, tested
positive for alcohol. In addition, the probation violation stated that on January
14, 2015, Bergfeld had submitted diluted urine for a drug screen, and on
January 31, 2015, Bergfeld had committed three new offenses—manufacturing
methamphetamine, maintaining a common nuisance, and possessing chemical
reagents or precursors.
[6] At a revocation hearing held on March 2, 2015, when explaining why he had
tested positive for alcohol in January 2015, Bergfeld stated that he was sick with
a cold and was taking “Nyquil and some kind of cough syrup.” (Transcript p.
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7). Bergfeld denied adulterating his urine for the alcohol screen or committing
the new offenses.
[7] The State presented evidence of Bergfeld’s failed Sobrietor test results, as well as
the laboratory analysis establishing alcohol in Bergfeld’s urine. With respect to
the alleged new offenses, the State presented evidence that in the early morning
hours of January 31, 2015, Bergfeld’s son contacted the Anderson Police
Department reporting that Bergfeld had requested that he buy ephedrine, which
is used in the manufacturing of methamphetamine. Officer Daron Granger
(Officer Granger) and another officer were sent to Bergfeld’s home at 703
Ruddle Avenue in Anderson, Indiana. Officer Granger testified that upon
entering Bergfeld’s home, he noticed a strong chemical odor associated with the
manufacturing of methamphetamine. There was an unidentified female and
another man, referred to as B.J., present in the home. Officer Granger stated
that he established that Bergfeld and B.J. were the residents. Bergfeld occupied
one bedroom, while B.J. occupied the middle bedroom. There was a third
bedroom, but it remained unoccupied. Officer Granger indicated that the living
room, kitchen, and bathrooms were common areas.
[8] A further search revealed remnants of a meth lab in the bathroom and in the
back of the house. A subsequent search by the Madison County Drug Task
Force led to the recovery of items associated with the manufacturing of
methamphetamine in the access panel for the bathroom plumbing pipes.
Officer Granger testified that Bergfeld had at first denied the operation of a
meth lab but later admitted that he was aware of it; however, Bergfeld denied
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any involvement in the manufacturing of methamphetamine. At the conclusion
of the hearing, the trial court found that Bergfeld had violated his probation for
testing positive for alcohol on January 4 and January 14, 2015, and for
committing new criminal offenses on January 31, 2015. Accordingly, the trial
court revoked Bergfeld’s supervised probation both in Cause FD-635 and FD-
1733. For Cause FD-635, the trial court ordered Bergfeld to serve the
remainder of his 910 days in Madison County Work Release. With respect to
Cause FD-1733, the trial court ordered Bergfeld to serve the rest of his 910 days
in the DOC. Bergfeld’s sentences were to be served consecutively.
[9] Bergfeld now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[10] Bergfeld claims that the trial court abused its discretion by revoking his
probation. It is well established that probation is a favor granted by the State
and is not a right to which a criminal defendant is entitled. Sparks v. State, 983
N.E.2d 221, 224 (Ind. Ct. App. 2013). The decision to revoke probation lies
within the sound discretion of the trial court. Id. Thus, a trial court’s decision
to revoke probation and its subsequent sentencing decision are reviewed for an
abuse of discretion. Id.
[11] Once a trial court has concluded that probation has been violated, it may
continue the defendant on probation, extend the probationary period for not
more than one year beyond the original period, or order all or part of the
previously-suspended sentence to be executed. Ind. Code § 35-38-2-3 (2014).
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[12] Bergfeld alleges that the positive alcohol results were based on his use of cold
medicine. Even accepting Bergfeld’s explanation, we remain disinclined to
accept his argument. We note that there are other cold medicines on the
market that do not contain alcohol, and his attempt to fabricate an explanation
for his consumption of alcohol through Nyquil or other cold medicines suggests
a consciousness of guilt and an attempt to conceal the prohibited behavior. The
terms of Bergfeld’s probation overtly required him not to “consume alcohol . . .
of any type.” (Appellant’s App. p. 120). On January 4, 2015, and January 14,
2015, Bergfeld’s Sobrietor tests produced positive alcohol readings. In addition,
Bergfeld’s urine submitted on January 14, 2015, yielded a positive alcohol
reading. The affidavit sworn by the toxicologist stated that “Bergfeld would
have had to use [] or ingest a substance containing ethyl alcohol sometime in
the five days prior to the urine collection.” (State’s Exh. 1).
[13] With regards to Bergfeld’s new methamphetamine related offenses, Bergfeld
argues that two other people lived in his house, and the State had failed to
present evidence that he constructively possessed the meth apparatus or
precursors recovered in his home. We disagree. In order to prove constructive
possession, the State must prove the defendant had the intent and capability to
maintain dominion and control over the contraband. Lampkins v. State, 682
N.E.2d 1268, 1275 (Ind. 1997), modified on reh’g on other grounds, 685 N.E.2d
698 (Ind. 1997). To prove intent to maintain dominion and control, there must
be additional circumstances supporting the inference of intent. Id. Proximity to
contraband in plain view is one such circumstance. Id. Constructive possession
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may also be proven by a defendant’s incriminating statements, attempted flight
or furtive gestures, or the comingling of contraband with other items the
defendant owns. Henderson v. State, 715 N.E.2d 833, 835-36 (Ind. 1999).
[14] When the officers arrived at Bergfeld’s residence, they noticed a strong
chemical odor associated with the manufacturing of methamphetamine. The
record shows that Bergfeld occupied one room, whereas B.J. occupied another.
One of the bedrooms remained unoccupied. The search revealed items
associated with the manufacturing of meth in the back of the residence, and that
part was accessible only from the unused bedroom which was connected to
B.J.’s bedroom. Even assuming that Bergfeld did not have access to the back of
the residence, a further search revealed precursors in a crawlspace next to the
bathroom, and trash indicating the presence of a meth lab. The bathroom was
a common area, and nothing suggests that Bergfeld did not have access to the
precursors. Moreover, Bergfeld’s knowledge that his house was being used as a
meth lab, coupled with the fact that his son suspected and reported to law
enforcement that he was manufacturing methamphetamine, supports the
inference that some—if not all—of the precursors found at his residence
constructively belonged to him.
[15] Lastly, we recognized the trial court’s leniency in this matter. After Bergfeld
tested positive for alcohol in 2014, the trial court placed him on an alcohol
monitoring device. Despite the trial court’s mercy, Bergfeld violated his
probation again by testing positive for alcohol in January 2015, and for
committing new offenses. The foregoing facts demonstrate Bergfeld’s disregard
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for court orders and the probation system. Accordingly, we affirm the trial
court’s order revoking Bergfeld’s probation.
CONCLUSION
[16] Based on the foregoing, we conclude that the trial court did not abuse its
discretion in revoking Bergfeld’s probation.
[17] Affirmed.
[18] Brown, J. and Altice, J. concur
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