Tina R. Like Simmons v. State of Indiana

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:
STEVEN E. RIPSTRA GREGORY F. ZOELLER
Ripstra Law Office Attorney General of Indiana
Jasper, Indiana
GEORGE P. SHERMAN
Deputy Attorney General
FILED
Indianapolis, Indiana
Jun 18 2012, 9:50 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
TINA R. LIKE SIMMONS, )
)
Appellant-Defendant, )
)
vs. ) No. 63A05-1111-CR-615
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE PIKE CIRCUIT COURT
The Honorable Jeffrey L. Biesterveld, Judge
Cause No. 63C01-1001-FB-25
June 18, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issues
Tina R. Like Simmons was convicted after a jury trial of neglect of a dependent
as a Class C felony, possession of methamphetamine as a Class D felony, and
maintaining a common nuisance as a Class D felony. She appeals, raising five issues for
our review, which we consolidated and restate as three: 1) whether the trial court abused
its discretion by allowing the prosecutor’s cross-examination of Michael Marvell; 2)
whether the trial court abused its discretion in admitting Officer Tharp’s testimony as a
skilled witness; and 3) whether the evidence is sufficient to sustain Simmons’s
convictions. Concluding the trial court did not abuse its discretion by allowing the
prosecutor’s cross-examination of Marvell or by admitting Officer Tharp’s testimony,
and that sufficient evidence was presented to support Simmons’s convictions, we affirm.
Facts and Procedural History
After receiving a tip of drug activity, police went to the residence of Michael
Marvell. Todd Marvell, Michael’s son, Jessica Bullock, Lisa Bradley, and Simmons’s
eighteen-month-old-son, R.S., were present in the home. Michael Marvell and Simmons
were not present. After searching the home, police found R.S. lying on a bed in
Michael’s room. Also in Michael’s bedroom, in a closet covered only by a tacked-up
blanket, were several mason jars containing methamphetamine and various paraphernalia,
including aquarium tubing, funnels, a metal strainer, a roll of aluminum foil, pens
modified to snort methamphetamine, multiple packs full of pseudoephedrine pills,1
plastic baggies and digital scales, a pyrex cooking pan, a makeshift pipe, and “liquid
1
Pseudoephedrine is the main ingredient in methamphetamine.
2
lightning” drain opener.2 Other contraband, including pills and a bottle of solvent, were
in the bedroom outside of the closet. Also in the bedroom, police found various
children’s toys, stuffed animals, a toddler chair, a female’s handbag, a jean purse, and a
female’s pocketbook.3 The bedroom was no larger than ten-by-fourteen feet. In the
kitchen, police found a pitcher containing two layers of liquid, the top layer being a
solvent, and a blender containing a white residue.
Simmons was charged with dealing in methamphetamine, a Class B felony;
possession of two or more chemical reagents or precursors with the intent to manufacture
controlled substances, maintaining a common nuisance, possession of methamphetamine,
and neglect of a dependent, all Class D felonies; and possession of paraphernalia, a Class
A misdemeanor. Over Simmons’s objection, the State later amended the neglect of a
dependent charge to a Class C felony. The State also dismissed the charges for
possession of paraphernalia and possession of two or more chemical reagents or
precursors with the intent to manufacture controlled substances.
At trial, the State called Officer Chad Tharp to testify as a skilled witness under
Indiana Rule of Evidence 701. First, the prosecutor asked Officer Tharp about his
experience, and Officer Tharp stated he previously worked on several methamphetamine
laboratory cases, received training on methamphetamine production while at the police
academy, attended a national conference a week before trial to learn about
methamphetamine production, participated in manufacturing methamphetamine as a
2
Liquid lightning is a sulfuric acid and is used in the manufacture of methamphetamine.
3
Although not discussed in detail in the parties’ briefs, based on the record it appears police also found
contraband in another single-wide trailer and shed on the property, but the trial court granted Simmons’s motion to
suppress the evidence found in those locations. However, the trial court’s order granting Simmons’s motion to
suppress the evidence from those two locations did not also suppress evidence found in Marvell’s double-wide
trailer located nearby.
3
training exercise using the “red phosphorous method,” and observed several “Nazi”
methamphetamine laboratories. The prosecutor then asked, “[b]ased . . . on your training
and experience, what percentage of ephedrine or pseudoephedrine . . . can be successfully
converted to methamphetamine using the Nazi method?” Tr. at 277. Simmons objected,
contending Officer Tharp lacked sufficient personal knowledge regarding the Nazi
method because he had never manufactured methamphetamine using the Nazi method.
The prosecutor responded that such personal knowledge is not required when using a
skilled witness. The trial court agreed and overruled Simmons’s objection, allowing
Officer Tharp to testify.
Officer Tharp then answered the State’s prior question: “[u]sing the Nazi method,
you could get, depending on . . . now on the perfect day, the wonderful, most perfect day
that you’ve ever seen, that we’ve never seen, ninety percent (90%). Average. You can
get seventy percent (70%) yield out of a manufacture.” Tr. at 280 (ellipses in original).
Shortly thereafter, after asking other questions about the manufacture of
methamphetamine, the State repeated its question concerning the typical yield of
methamphetamine by posing a hypothetical based on a box of ephedrine: “But in your
experience the typical yield from a two point four (2.4) gram box of ephedrine is
somewhere in the, in the neighborhood of, [sic] of seventy percent (70%) of two point
four (2.4) grams, which is between a gram and a half and two grams?” Id. at 281.
Officer Tharp replied, “What we, normally when we talk, when, if we get someone for
manufacturing, we’ll talk to them. Hey, what do you yield? You know, what, what
percentages do you yield? We’ll talk to them about how they do it. They can yield up to
seventy percent (70%). Most of them.” Id.
4
Todd Marvell’s fiancée testified the residence was occupied by her, Todd, Michael
Marvell, and Simmons and R.S. After the State rested, Simmons called Michael Marvell
to testify. Michael had previously pleaded guilty to criminal charges arising from his
production of methamphetamine. After asking preliminary questions, defense counsel
asked, “[w]ere all the items found . . . in the burn pile and in the . . . residence where you
were staying . . ., that were related to manufacturing or methamphetamine, were those
your items?” Id. at 331. Michael replied, “[y]es,” and defense counsel asked no further
questions. Id. On cross-examination, over Simmons’s repeatedly overruled objections,
the State asked Michael the following questions: whether Simmons lived with him at his
residence; whether Simmons had custody of her son, R.S.; whether Simmons used
methamphetamine with Michael; whether he had ever seen Simmons use a “snort tube,”
pipes, and/or foil to use methamphetamine; whether R.S. slept in Marvell’s bedroom in
the residence; and whether and to what extent Simmons was involved in his
methamphetamine manufacturing.
After a jury trial, Simmons was convicted of neglect of a dependent as a Class C
felony, possession of methamphetamine as a Class D felony, and maintaining a common
nuisance as a Class D felony. She was found not guilty of dealing in methamphetamine.
The trial court sentenced Simmons to six years for neglect of a dependent and one year
each for possession of methamphetamine and maintaining a common nuisance, all
ordered to be served consecutively, for an aggregate sentence of eight years. Simmons
now appeals.
Discussion and Decision
I. The State’s Cross-Examination of Michael Marvell
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Indiana Rule of Evidence 611(b) provides: “Cross-examination should be limited
to the subject matter of the direct examination and matters affecting the credibility of the
witness. The court may, in the exercise of discretion, permit inquiry into additional
matters as if on direct examination.” Our supreme court has previously stated:
The trial court is vested with broad discretion in determining the scope and
extent of cross-examination. . . . The scope of permissible cross-
examination extends to all phases of the subject matter covered in direct
examination and may include any matter which tends to elucidate, modify,
explain, contradict, or rebut testimony given in chief by the witness.
Smith v. State, 765 N.E.2d 578, 588 (Ind. 2002) (citations and quotation omitted).
Simmons contends the State’s cross-examination of Michael Marvell exceeded the
scope of her direct examination, and therefore the trial court abused its discretion by
permitting the State’s questioning. As to whether she was prejudiced by the questions
permitted on cross-examination, Simmons contends she was because there was very little
incriminating evidence other than Michael’s testimony on cross-examination. The State
responds “[t]he prosecutor’s questions were directly related to the issue of whether
Marvell was the only person manufacturing methamphetamine at the residence and
whether all of the items related to manufacturing methamphetamine were solely his, as he
indicated on direct exam.” Brief of Appellee at 6. Further, the State argues “[t]he
questions asked by the prosecutor referenced matters that tended to elucidate, modify,
explain, contradict or rebut the testimony given by Marvell on direct exam.” Id.We cannot conclude the trial court abused its broad discretion by permitting the
State’s questions on cross-examination. The questions asked by the State could
reasonably be determined to be within the scope of Simmons’s questions on direct
examination. Simmons asked Marvell whether all of the contraband discovered in his
6
residence used in manufacturing methamphetamine belonged to him. He replied that it
was, and on cross-examination, the State’s line of questions, as a whole, was directed at
the veracity of Marvell’s response on direct. For example, if Simmons lived in the
residence, used the paraphernalia and methamphetamine discovered in the residence, and
was involved in the manufacturing of methamphetamine, then a fact finder could
conclude Marvell’s answer on direct was not wholly accurate. Further, as the State points
out, Rule 611(b) grants a trial court discretion to allow additional questions on cross-
examination as if the questioning party were asking on direct. Thus, the trial court did
not abuse its broad discretion in permitting the State to cross-examine Marvell as it did.
II. Officer Tharp’s Testimony
The decision to admit or exclude evidence will not be reversed
absent a showing of manifest abuse of discretion resulting in the denial of a
fair trial. An abuse of discretion occurs when a decision is clearly against
the logic and effect of the facts and circumstances before the trial court. In
reviewing the admissibility of evidence, we consider only the evidence in
favor of the trial court’s ruling and any unrefuted evidence in the
appellant’s favor.
State v. Hunter, 898 N.E.2d 455, 457-58 (Ind. Ct. App. 2008) (citations omitted).
Simmons argues Officer Tharp’s testimony regarding the achievable percentage
yield during regular methamphetamine manufacture and methamphetamine manufacture
using the Nazi method should not have been permitted because he did not qualify as a
skilled witness under Indiana Rule of Evidence 701 nor as an expert witness under Rule
702. The State responds Officer Tharp’s testimony was admissible under either Rule 701
or 702.4
4
Because we conclude Officer Tharp’s testimony is admissible under Indiana Rule of Evidence 701, we
need not determine whether his testimony would also be admissible under Rule 702.
7
Rule 701 provides, “[i]f the witness is not testifying as an expert, the witness’s
testimony in the form of opinions or inferences is limited to those opinions or inferences
which are (a) rationally based on the perception of the witness and (b) helpful to a clear
understanding of the witness’s testimony or the determination of a fact in issue.” A
skilled witness is a person with “a degree of knowledge short of that sufficient to be
declared an expert under Rule 702, but somewhat beyond that possessed by the ordinary
jurors.” Mariscal v. State, 687 N.E.2d 378, 380 (Ind. Ct. App. 1997) (quotation omitted),
trans. denied.
Simmons contends Officer Tharp did not qualify under Rule 701 because he
lacked sufficient personal knowledge regarding the Nazi method of manufacturing
methamphetamine. In support of her contention, she points to the facts that Officer Tharp
had not manufactured methamphetamine himself using the Nazi method and that during
his testimony he referred to what defendants tell police they normally yield when
producing methamphetamine. However, under Rule 701, the issue is not whether a
witness has sufficient personal knowledge about the subject matter to which he or she is
testifying, it is whether an opinion or inference given by the witness is “rationally based
on the perception of the witness” and helpful to the jury in understanding the witness’s
testimony. Ind. Evidence Rule 701. Here, Officer Tharp testified he received training on
methamphetamine production, attended at least one conference to learn about
methamphetamine production, participated in a manufacturing training exercise, worked
on several methamphetamine laboratory cases, and observed several Nazi method
methamphetamine laboratories. We cannot conclude the decision to admit Officer
Tharp’s testimony as a skilled witness was against the logic and effect of the
8
circumstances before the trial court. Based on the breadth of experience Officer Tharp
had with methamphetamine manufacturing, including observing the Nazi production
method, the trial court could reasonably conclude his testimony was rationally based on
his prior perceptions of methamphetamine production. That he also relayed information
gleaned from suspects about the details of their methamphetamine manufacturing does
not negate this breadth of experience and personal observations which independently
gave rise to at least part of his testimony.
Further, even if Officer Tharp’s testimony was not rationally based on his
perceptions, Simmons fails to establish how this admission of evidence denied her of a
fair trial, and we will not reverse a trial court’s admission of evidence absent a showing
that such admission was a manifest abuse of discretion resulting in the denial of a fair
trial. Hunter, 898 N.E.2d at 457-58. The only portion of her appellate brief that even
approaches a showing that Simmons was denied a fair trial is the statement:
It was error to allow [Officer Tharp’s] testimony. It was not harmless,
because no other evidence was presented as to the weight of the
methamphetamine. Davis v. State, [948 N.E.2d 843, 848 (Ind. Ct. App.
2011)]. Even though the three convictions do not depend on weight, the
conversion allows the jury to consider that methamphetamine existed
beyond the mere traces found in some of the jars.
Brief of Appellant at 12. This is not an argument that Simmons was denied a fair trial by
the purportedly inadmissible testimony of Officer Tharp, but an argument that the alleged
error of the trial court in admitting Officer Tharp’s testimony was not harmless. In any
event, as Simmons concedes, none of her convictions depended upon the weight of
methamphetamine discovered by police officers, and therefore, Officer Tharp’s
testimony, even if inadmissible, did not deny Simmons of a fair trial.
9
Simmons also argues Halferty v. State, 930 N.E.2d 1149 (Ind. Ct. App. 2010),
trans. denied, applies. There, police officers found .40 grams of methamphetamine and
4.61 grams of ephedrine/pseudoephedrine in Halferty’s apartment. To establish that
Halferty was manufacturing the requisite three grams of methamphetamine to convict
him of Class A felony dealing in methamphetamine, an officer testified that “in general,”
the yield achieved when producing methamphetamine from ephedrine/pseudoephedrine is
“usually right around 70, 80 percent” and that one gram of ephedrine/pseudoephedrine
produces “about” .70 or .80 grams of methamphetamine. Id. at 1151. However, the
officer also testified the yield can fall to below fifty percent, depending on the ability of
the manufacturer.
This court noted that the only evidence presented establishing that Halferty was
manufacturing three grams or more of methamphetamine was the above officer’s
testimony, and we concluded the evidence presented was insufficient to convict Halferty
of dealing in methamphetamine as a Class A felony because “[c]ooking the 4.61 grams of
ephedrine/pseudoephedrine at a yield of fifty percent would create about 2.31 grams of
methamphetamine – an amount that, even when added to the .40 grams of produced
methamphetamine, would produce less than three grams.” Id. at 1153-54. We did not,
however, conclude the officer’s testimony was inadmissible, and Halferty is therefore
inapplicable.
III. Sufficiency of the Evidence
Simmons contends insufficient evidence exists to support any of her three
convictions. Our standard of reviewing the sufficiency of evidence is well-settled:
10
Upon a challenge to the sufficiency of evidence to support a conviction, a
reviewing court does not reweigh the evidence or judge the credibility of
the witnesses, and respects the jury’s exclusive province to weigh
conflicting evidence. We have often emphasized that appellate courts must
consider only the probative evidence and reasonable inferences supporting
the verdict. Expressed another way, we have stated that appellate courts
must affirm if the probative evidence and reasonable inferences drawn from
the evidence could have allowed a reasonable trier of fact to find the
defendant guilty beyond a reasonable doubt.
McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005) (quotations and citations omitted).
A. Neglect of a Dependent
To convict Simmons of neglect of a dependent, the State was required to establish
beyond a reasonable doubt that Simmons knowingly or intentionally placed R.S. in a
situation that endangered the child’s life or health. Ind. Code § 35-46-1-4(a)(1). To
establish the offense as a Class C felony, the State was required to show that the neglect
occurred in a location where a person was also guilty of manufacturing
methamphetamine or that the neglect is the result of the manufacture of
methamphetamine. Ind. Code § 35-46-1-4(b)(1)(B). Simmons contends insufficient
evidence was presented to establish R.S. was exposed to a dangerous situation or
Simmons knowingly placed R.S. in danger.
This court and our supreme court have previously noted “the production of
methamphetamine introduces a high risk of explosion and fire.” Holder v. State, 847
N.E.2d 930, 939 (Ind. 2006). Anyone living in a home where methamphetamine is
manufactured is exposed to the highly flammable and explosive atmosphere in the home.
Id. Thus, Simmons placed R.S. in an environment that endangered the child’s life or
health. Further, Marvell testified he manufactured methamphetamine in the home, which
11
satisfies part (b) of the statute and raises the offense to a Class C felony if all other
elements of the offense are established.
Simmons contends, however, that the State presented insufficient evidence to
prove beyond a reasonable doubt she knowingly or intentionally placed R.S. in a situation
that endangered the child’s life or health. We disagree. The evidence reveals Marvell
was manufacturing methamphetamine in the home, and the tools and ingredients he used
to do so were found in various locations in the home. In the bedroom where Simmons
and Marvell spent most of their time and slept, police found mason jars containing
methamphetamine and various other paraphernalia in a closet with nothing more than a
tacked-up blanket covering it. Also in the bedroom, police found a pill bottle and
container of solution used to manufacture methamphetamine, and a female’s handbag,
purse, and pocketbook. In the kitchen, police discovered a solvent and a blender
containing a white residue. Further, Marvell testified Simmons regularly used
methamphetamine, including that which he manufactured. Marvell also had the
following exchange with the prosecutor while testifying:
Q. And this bedroom is about how big?
A. Ten by ten or ten by twelve.
Q. Small. Correct?
A. Yeah. That stuff . . . wasn’t always in there.
Q. It was on January 2nd, 2010, wasn’t it?
A. Yes. It was on that day.
Q. What was there to keep [R.S.] from getting in those jars? Those Mason
jars in the closet?
A. We was. [sic]
Q. You were. [sic]
A. Well we wasn’t there that day. No.
Q. What precautions did Tina take to keep [R.S] from getting in those jars
in the closet?
A. We had the door shut to that room when we left.
12
Q. Did you tell [the babysitter], we’ve got a lab in that closet and we don’t
want the child in there?
***
A. Yes. We told her to stay out of the room.
***
Q. What makes you think [the babysitter] was aware of it?
A. She knew.
Q. She’d been around when meth was being used, hadn’t she?
A. Yes.
Q. She had used meth there, hadn’t she?
A. Yes.
Q. And she knew what you were up to, didn’t she?
A. I presume. Yes.
Q. And Tina knew what you were up to, didn’t she?
A. Yes. I presume.
Tr. at 346-48.
Reviewing all the probative evidence and reasonable inferences drawn therefrom,
a reasonable finder of fact could conclude Simmons knowingly or intentionally placed
R.S. in an environment where methamphetamine was being manufactured, and thus, in an
environment that endangered R.S.’s health or life.
B. Possession of Methamphetamine
A person who knowingly or intentionally possesses methamphetamine commits
possession of methamphetamine, a Class D felony. Ind. Code § 35-48-4-6.1.
Constructive possession will support a possession conviction if the State
shows that the defendant had both the capability and the intent to maintain
dominion and control over the contraband. Where control is non-exclusive,
intent to maintain dominion and control may be inferred from additional
circumstances that indicate that the person knew of the presence of the
contraband.
White v. State, 772 N.E.2d 408, 413 (Ind. 2002) (citation omitted). Additional
circumstances indicating a person knew of the presence of contraband could include: “(1)
incriminating statements by the defendant; (2) attempted flight or furtive gestures; (3) a
13
drug manufacturing setting; (4) proximity of the defendant to the drugs; (5) drugs in plain
view; and (6) location of the drugs in close proximity to items owned by the defendant.”
Goffinet v. State, 775 N.E.2d 1227, 1230 (Ind. Ct. App. 2002) (quoting Ladd v. State,
710 N.E.2d 188, 190 (Ind. Ct. App. 1999)), trans. denied.
Here, the evidence sufficiently establishes that Simmons knew of the contraband’s
presence, and therefore, it is sufficient to establish her capability and intent to maintain
dominion and control of the contraband. The residence was used as a drug
manufacturing setting. The bedroom where Simmons slept, spent the majority of her
time while in the home, and kept some of her personal belongings is where police
discovered most of the contraband. And, as discussed above, Marvell testified that, at the
very least, he presumed Simmons knew about his manufacturing methamphetamine, and
that she used the methamphetamine he produced. The evidence indicates Simmons knew
of the presence of contraband on the premises. Therefore, the evidence was sufficient for
a reasonable finder of fact to conclude Simmons constructively possessed the contraband.
C. Maintaining a Common Nuisance
To convict Simmons of Class D felony maintaining a common nuisance, the State
was required to show beyond a reasonable doubt that she “knowingly or intentionally
maintain[ed] a building . . . 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; [or] (B) keeping; . . . controlled substances . . . .” Ind. Code § 35-48-4-
13(b). We have previously addressed how to define “maintain” for the purposes of this
statute, and we have concluded, based on common definitions of the word, legal
ownership is not required and the evidence necessary to establish constructive possession
14
is also sufficient to prove a defendant maintained a residence under Indiana Code section
35-48-4-13. Jones v. State, 807 N.E.2d 58, 66-67 (Ind. Ct. App. 2004), trans. denied.
Simmons contends there is insufficient evidence that she knowingly maintained a
building where methamphetamine was being manufactured. As discussed above, we
disagree with her argument that the evidence failed to sufficiently establish she knew
about the manufacture of methamphetamine occurring in the home. Marvell testified
Simmons knew or that he presumed she knew. She used the methamphetamine Marvell
produced. She slept, spent most of her time, and kept some of her personal belongings in
the small bedroom where most of the contraband was found. The home contained a
methamphetamine manufacturing setting. Based on the totality of the circumstances,
sufficient evidence was presented for a reasonable finder of fact to conclude Simmons
knew methamphetamine was being manufactured in the home. Therefore, the evidence is
sufficient to support her conviction for maintaining a common nuisance.
Conclusion
The trial court did not abuse its discretion by allowing the prosecution’s cross-
examination of Michael Marvell or by admitting Officer Tharp’s testimony as a skilled
witness, and the evidence was sufficient to establish Simmons’s convictions. We
therefore affirm.
Affirmed.
BAILEY, J., and MATHIAS, J., concur.
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