Dustin Jack Gifford v. State of Indiana

Oct 10 2013, 5:34 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LEANNA WEISSMANN GREGORY F. ZOELLER
Lawrenceburg, Indiana Attorney General of Indiana
JUSTIN F. ROEBEL
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DUSTIN JACK GIFFORD, )
)
Appellant-Defendant, )
)
vs. ) No. 40A05-1304-CR-197
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE JENNINGS CIRCUIT COURT
The Honorable Jon W. Webster, Judge
Cause No. 40C01-1207-FD-154
October 10, 2013
OPINION - FOR PUBLICATION
CRONE, Judge
Case Summary
Dustin Jack Gifford appeals his conviction for class D felony possession of chemical
reagents or precursors with the intent to manufacture a controlled substance. The sole issue
presented for our review is whether the State presented sufficient evidence to sustain the
conviction. Finding the evidence insufficient, we reverse.
Facts and Procedural History
The facts most favorable to the conviction indicate that, on June 2, 2012, Katrina
Roush and her boyfriend, Jared Bonds, were hanging out with Gifford and Gifford’s father,
Denver, at Gifford’s house in Jennings County. Gifford suggested that the group travel to
Jefferson County to “get boxes” of pseudoephedrine. Tr. at 119. The plan was to eventually
sell the boxes to someone who manufactured methamphetamine, but they didn’t yet “have a
purchaser or nothing.” Id. at 121.
Denver drove the group to Madison in his van. Gifford gave Roush and Bonds money
to buy pseudoephedrine. Denver and Gifford waited in the van while Roush and Bonds went
into a CVS pharmacy and each bought a ninety-six-count package of nasal decongestant
which contained pseudoephedrine. A CVS employee was suspicious regarding the purchases
because Roush and Bonds had driven from a different county just to buy nasal decongestant.
The employee contacted Madison City Police Officer Jonathan Simpson.
Officer Simpson, who was in plain clothes and in an unmarked vehicle, followed the
van from the CVS to the Madison Walmart. He watched as Gifford and another man went
into the store and saw them purchase lithium batteries. The group left Walmart and drove
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into Jennings County, where the van was stopped by uniformed officers for a traffic
infraction. Denver, who was driving, consented to a search of the vehicle. Officers found
one box of pseudoephedrine in Roush’s purse and one box of pseudoephedrine in the driver’s
side rear door. Gifford, who had been sitting in the front passenger seat, told officers that the
batteries he had purchased were “hidden in the dash” on the passenger side of the vehicle.
Id. at 145. Officers discovered lithium batteries “shoved up” behind the door of a fuse box.
Id. Gifford claimed that the batteries were for his camera and that he hid them because “he
knew that it did not look good to have [pseudoephedrine] and lithium batteries in the same
vehicle.” Id. at 146. Bonds revealed to officers that the plan was to “make some calls and
line up a buyer or trade” the pseudoephedrine for “a half a gram of meth.” Id. at 151.
On July 31, 2012, the State charged Gifford with class D felony possession of
chemical reagents or precursors with the intent to manufacture a controlled substance.
Following a trial, the jury found Gifford guilty as charged. This appeal ensued.
Discussion and Decision
Gifford challenges the sufficiency of the evidence to support his conviction. When
reviewing insufficiency of the evidence claims, we neither reweigh evidence nor judge
witness credibility. Mathews v. State, 978 N.E.2d 438, 443 (Ind. Ct. App. 2012), trans.
denied (2013). Instead, we examine the evidence and reasonable inferences most favorable
to the verdict. Id. If there is evidence of probative value from which a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt, we will affirm. Id. Reversal
is appropriate only when reasonable persons would not be able to form inferences as to each
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material element of the offense. Perez v. State, 872 N.E.2d 208, 213 (Ind. Ct. App. 2007),
trans. denied.
To prove that Gifford committed class D felony possession of chemical reagents or
precursors with the intent to manufacture a controlled substance, the State was required to
prove beyond a reasonable doubt that Gifford possessed two or more chemical reagents or
precursors, specifically pseudoephedrine and lithium metal,1 “with the intent to manufacture”
methamphetamine. See Ind. Code § 35-48-4-14.5(e). On appeal, Gifford claims that the
State presented insufficient evidence regarding both his possession and his intent. Because
we find the lack of evidence regarding intent to be dispositive, we need not address the
sufficiency of the evidence regarding possession.
The State concedes that the evidence establishes that Gifford’s undisputed intent was
to eventually sell the pseudoephedrine to someone else who would use it to manufacture
methamphetamine.2 There was no evidence presented that Gifford personally intended to
manufacture methamphetamine. The State recognizes that another panel of this Court has
interpreted the identical language “with the intent to manufacture” methamphetamine in an
analogous provision of Indiana Code Section 35-48-4-14.5 to require proof that the person
charged with possession must personally have the intent to manufacture methamphetamine.
Specifically, in Prater v. State, 922 N.E.2d 746, 749 (Ind. Ct. App. 2010), trans. denied, we
1
Pseudoephedrine and lithium metal are both listed as chemical reagents or precursors. See Ind. Code
§ 35-48-4-14.5(a)(2) and -(a)(8).
2
The State acknowledges that this was the only theory of intent argued by the deputy prosecutor at
trial.
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analyzed that portion of the statute providing that “[a] person who possesses anhydrous
ammonia … with the intent to manufacture methamphetamine” commits a class D felony.
Ind. Code § 35-48-4-14.5(c). We concluded that the plain language used by the legislature,
namely “with the intent to manufacture,” requires that the person who possesses anhydrous
ammonia must also have the personal intent to manufacture methamphetamine. Prater, 922
N.E.2d at 750.
Acknowledging the clear applicability of our decision in Prater, the State urges that
Prater was decided erroneously and that we should reexamine the language “with the intent
to manufacture” and determine that our legislature intended to criminalize mere possession of
chemical reagents or precursors even absent personal intent to manufacture a controlled
substance. We believe that the plain language of the statute is clear, and we decline the
State’s invitation to revisit the issue. As the State presented no evidence to the jury that
Gifford personally intended to manufacture a controlled substance as required by Indiana
Code Section 35-48-4-14.5(e), we reverse his conviction. 3
Reversed.
BARNES, J., and PYLE, J., concur.
3
The State maintains that the jury was free to disregard the deputy prosecutor’s argument that
Gifford’s undisputed intent was to eventually sell the precursors and that the jury could have instead
reasonably inferred that Gifford intended to personally manufacture methamphetamine. However, as stated
above, there was no evidence presented that Gifford intended to personally manufacture methamphetamine.
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