Kenneth Lainhart 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 FILED
Jun 29 2012, 9:26 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KIMBERLY A. JACKSON GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
RYAN D. JOHANNINGSMEIER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KENNETH A. LAINHART, )
)
Appellant-Defendant, )
)
vs. ) No. 24A04-1105-CR-299
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE FRANKLIN CIRCUIT COURT
The Honorable J. Steven Cox, Judge
Cause No. 24C01-1008-FB-46
June 29, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Kenneth Lainhart appeals his convictions and sentence for conspiracy to
manufacture methamphetamine as a class B felony1 and manufacturing
methamphetamine as a class B felony.2 Lainhart raises five issues which we revise and
restate as:
I. Whether Lainhart’s convictions violate the prohibition against
double jeopardy;
II. Whether the trial court abused its discretion and committed
fundamental error by admitting evidence of Lainhart’s uncharged
misconduct;
III. Whether the State failed to establish a proper chain of custody for
certain evidence;
IV. Whether the evidence presented was sufficient to support Lainhart’s
convictions; and
V. Whether Lainhart’s sentence is inappropriate in light of the nature of
the offense and the character of the offender.
We affirm.3
1
Ind. Code § 35-48-4-1.1 (Supp. 2006); Ind. Code § 35-41-5-2 (2004).
2
Ind. Code § 35-48-4-1.1 (Supp. 2006).
3
The State raises the issue on cross-appeal of whether the court erred in concluding that
Lainhart’s offenses constituted a single episode of criminal conduct under Ind. Code § 35-50-1-2(c)(2).
However, we note that the State at sentencing recommended “that this sentence be capped at thirty years
pursuant to the consecutive sentencing statute to treat this as one episode of criminal conduct.” May 4,
2011 Sentencing Transcript at 3. The State reiterated its position that Lainhart’s convictions constituted a
single episode of criminal conduct at the May 18, 2011 sentencing hearing, stating:
[M]y sentencing recommendation today is maximum consecutive sentences on all three
Counts up to thirty years based on the consecutive statute that says that a single episode
of criminal conduct can’t be sentenced about [sic] the advisory for the next highest
offence [sic]. And that would be consistent with your finding in FB-58 that says all the
evidence was found pursuant to one, uh, execution and one search warrant than [sic] it’s
going to be considered one single episode.
May 18 Sentencing Transcript at 5. Accordingly, we conclude that the State has waived its argument on
cross-appeal. Cf. Masterson v. State, 843 N.E.2d 1001, 1004 n.1 (Ind. Ct. App. 2006) (noting that
standing was not an issue on appeal because the State conceded below that the defendant had established
2
The relevant facts follow. On April 17, 2010, Lainhart encountered Kenneth
Marshall, whom he had known for around twenty years, at a store in Everton, and
Lainhart asked Marshall if he “wanted to ride to town with him,” and Marshall agreed.
Transcript at 167. Lainhart took Marshall to the Kroger in Connersville where Marshall
purchased pseudoephedrine for Lainhart using Lainhart’s money. Marshall understood
that the pseudoephedrine was to be used by Lainhart in the manufacture of
methamphetamine. The men next went to Auto Zone where Lainhart purchased ether.
Lainhart then took Marshall back to the Everton store where he told Marshall that
Marshall could later come by Lainhart’s house located on Laurel Road in Franklin,
Indiana. Marshall complied, and once there the two men and a woman named Bonnie
Scarette manufactured methamphetamine on Lainhart’s driveway. Another woman
named Peggy Beeson4 showed up later in the evening. Marshall received a quarter gram
of methamphetamine from Lainhart from the batch.
On June 11, 2010, Indiana State Trooper Jeremy Franklin, assigned to the meth
suppression section, was contacted by Marshall, and Marshall gave Trooper Franklin
information about the methamphetamine production in which he had been involved.
Based upon this conversation, Trooper Franklin conducted pseudoephedrine log checks at
local pharmacies and confirmed that on April 17, 2010, at around 5:30 p.m., Marshall
purchased 2.4 grams of pseudoephedrine at the Kroger Pharmacy in Connersville.
standing), trans. denied.
4
Although the transcript spells Beeson’s name as “Beason,” the charging information and
pseudoephedrine logs admitted into evidence indicate that her name is spelled “Beeson.” State’s Exhibit
6-7.
3
Trooper Franklin also verified, based upon his conversation with Marshall, that ether was
sold from the Auto Zone in Connersville on that same date at 5:47 p.m. by cash purchase.
Also based upon the information provided by Marshall, Trooper Franklin checked
the pseudoephedrine logs at various pharmacies for the names of Lainhart and Peggy
Beeson. The logs indicated that Lainhart purchased pseudoephedrine at the Kroger
Pharmacy in Connersville on April 5, 2010, April 13, 2010, and June 7, 2010, at the CVS
Pharmacy in Connersville on May 30, 2010, and at the Wal-Mart in Connersville on
April 26, 2010, May 9, 2010, and June 9, 2010. In each instance, the logs indicated that
Lainhart’s address was 18022 Laurel Road, Connersville IN, 47331 (the “Laurel Road
property”). The logs also indicated that Beeson purchased pseudoephedrine at Wal-Mart
on May 9, 2010, at the CVS Pharmacy in Brookville on May 20, 2010, and at the Kroger
in Connersville on June 2, 2010.
Trooper Franklin applied for a search warrant of the Laurel Road property listed
by Lainhart in the logs. On June 15, 2010, Trooper Franklin led a team to execute the
search warrant and encountered Beeson on the premises upon execution. Trooper
Franklin began the search in the kitchen and discovered a coffee grinder with a powdery
substance in it. Trooper Franklin also found two packages of unused coffee filters, a
canister of salt, alcohol, a large commercial funnel, glue sticks, a container of lye or
sodium hydroxide, a bottle of sulfuric acid, a large green thermos, a black plastic and
metal strainer, and thirteen glass jars, all of which are used in the production of
methamphetamine. He also discovered six “soiled and twisted” coffee filters which he
sent to the lab for analysis. Id. at 134. In addition to the evidence of methamphetamine
production, Trooper Franklin found an empty package containing hypodermic needles
4
and three used hypodermic syringes, as well as razor blades and “a whole bunch of
portions of aluminum foil with burn marks on the bottom.” Id. at 136.
In the bedroom, Trooper Franklin found “a corner cut sandwich bag” which was
significant because “a common way to package methamphetamine” is by placing it into a
corner of the bag and then cutting “the corner off the bag.” Id. at 137. He also
discovered metal scales which could be used to weigh small amounts of substances and a
leather belt with the belt buckle removed which, based upon his training and experience,
he recognized as significant because such belts are used when injecting drugs using a
syringe. He found an open can of paint thinner, which is used as an organic solvent in the
production of methamphetamine, on the TV stand and also found “two 11 oz. Johnsen’s
ether cans which is the same brand and same size that was sold” to the customer via the
cash transaction at Auto Zone on April 17, 2010. Id. at 139. The cans had holes
“punched” in the bottom, indicating to Trooper Franklin based upon his training and
experience that the cans had been used in the manufacture of methamphetamine. Id. at
140.
Further, he discovered a burn pile containing blue coated gloves, a partially burnt
plastic bottle containing a white crystal substance “consistent with HCL generators” that
he had previously observed and also containing “sludge in the bottom” that was
“consistent with the sludge in [an] HCL generator.” Id. at 140-141. The burn pile also
contained four partially burnt cans of ether which had been punched, portions of
aluminum foil with burn marks, two partially burnt blister packages in which
pseudoephedrine is typically contained, and a light bulb with the filament removed and
residue on the inside. Based upon his training and experience, Trooper Franklin
5
recognized that both the aluminum foil and light bulb are devices which may be used to
smoke methamphetamine. He also found seven razor blades and a pipe which was
threaded on both ends and which could be used to mix various ingredients in the
production of methamphetamine.
That same day, on June 15, 2010, Lainhart was charged with Count I, conspiracy
to manufacture methamphetamine as a class B felony;5 Count II, manufacturing
methamphetamine as a class B felony; and Count III, possession of methamphetamine as
a class D felony. On April 4, 2011, the court held a jury trial in which evidence
consistent with the foregoing was presented. During voir dire, a member of the venire
responded to a question by the prosecutor regarding whether they knew Lainhart by
stating that his niece, Bonnie Scarette, had been “arrested at the time with him.” Id. at
54.
At trial, Trooper Franklin testified that during the search of the property he
discovered two condoms containing numerous prescription pills including muscle
relaxers in the master bedroom. He testified that there were multiple pieces of evidence
indicating Lainhart lived at the Laurel Road property including that Lainhart listed that
address on the pseudoephedrine logs and would have had to use his driver’s license to do
so, that he had previous opportunities to speak with Lainhart at the residence from related
circumstances, and that a month prior he was at the Laurel Road property to speak with
Beeson, and Lainhart was present at that time. On cross examination, Trooper Franklin
5
The original charging information was titled Count I “Manufacture Methamphetamine.”
However, the charging information cites to Ind. Code § 35-41-5-2, which is the conspiracy statute, and it
charges that Lainhart “did . . . conspire to manufacture methamphetamine . . . .” Appellant’s Appendix at
26. On March 29, 2011, the State filed a motion for leave to amend the information and change the title
of Count I to “Conspiracy to Manufacture Methamphetamine” and noted that the amendment “is to form
only and not substantive.” Id. at 41-42.
6
testified that fingerprints and DNA were not collected on the items seized during the
search. He testified on redirect that it was his opinion that methamphetamine had been
manufactured at the Laurel Road property on a date prior to June 15, 2010, when the
search warrant was executed.
Audra Yovanovich, a forensic scientist with the Indiana State Police Laboratory
Division, testified that State’s Exhibit 1, the coffee grinder, was found to contain
ephedrine and/or pseudoephedrine. She testified that State’s Exhibit 2, identified as
coffee filters, similarly tested positive for ephedrine and/or pseudoephedrine. She also
testified that State’s Exhibit 3, which she described as “twenty five pieces of foil
containing residue and a[n] empty blister pack,” tested positive for methamphetamine and
pseudoephedrine. Id. at 111. State’s Exhibits 1, 2, and 3 were admitted into evidence
without objection.
Beeson testified that in January 2010 she lived at the Laurel Road property with
Lainhart and her daughter. She testified that she had previously been married to Lainhart
but that they had divorced four years prior. Beeson testified that in January 2010, she
moved into the Laurel Road property because Lainhart “told [her] he was gunna [sic] go
to jail on an intimidation charge,” and asked her if she “would come out and look after
his house and his dogs while he went away.” Id. at 181. Beeson also testified that she
lived in Cincinnati for a brief time in February and March, but that she “went back” to the
Laurel Road property in April 2010, and that Lainhart was living at the home the entire
time in 2010. Id. Beeson testified that Lainhart’s parents live next door on Laurel Road.
Beeson testified that Lainhart moved out on June 11, 2010, when “he went to the Beacon
House in Indianapolis” which was a rehab facility or halfway house, and that she
7
remained living on Laurel Road until early July. Id. at 183. She testified that she
purchased pseudoephedrine on three occasions between April and June of 2010 so that
Lainhart could manufacture methamphetamine, and that in 2010 Lainhart manufactured
methamphetamine every seven to ten days.
The jury found Lainhart guilty as charged. On May 4, 2011, the court held a
sentencing hearing which was continued so that the parties could prepare memoranda
regarding an argument raised by Lainhart that Counts I and III be vacated pursuant to
double jeopardy principles. On May 18, 2011, the court held a sentencing hearing and
ruled that double jeopardy did not apply to Lainhart’s conviction under Count I but
ordered that Count III be vacated, noting that the State had indicated at the initial
sentencing hearing that Count III was a lesser included offense. The court sentenced
Lainhart to twenty years each on Counts I and II to be served consecutively. The court
also determined that Lainhart’s crimes constituted a single episode of criminal conduct
and capped his sentence at thirty years. Thus, Lainhart was sentenced to an aggregate
term of thirty years in the Department of Correction. Additional facts will be provided as
necessary.
I.
The first issue is whether Lainhart’s convictions violate the prohibition against
double jeopardy. Lainhart argues that the same evidence was used to establish the
essential elements of his convictions under Counts I and II. Specifically, he argues that
“[g]iven the lack of specific evidence as to when all of the methamphetamine allegedly
was produced, possessed, or consumed,” that “methamphetamine on the foil pieces also
could have been the methamphetamine which the jury convicted Lainhart of
8
manufacturing and the methamphetamine which Lainhart and [Beeson] allegedly
conspired to manufacture,” and that “these circumstances demonstrate the jury could
have determined the methamphetamine which Lainhart allegedly conspired with
[Beeson] to manufacture was the same methamphetamine which Lainhart actually
manufactured.” Appellant’s Brief at 16-17.
The Indiana Constitution provides that “[n]o person shall be put in jeopardy twice
for the same offense.” IND. CONST. art. 1, § 14. In Richardson v. State, the Indiana
Supreme Court developed a two-part test for Indiana double jeopardy claims, holding that
“two or more offenses are the ‘same offense’ in violation of Article I, Section 14 of the
Indiana Constitution, if, with respect to either the statutory elements of the challenged
crimes or the actual evidence used to convict, the essential elements of one challenged
offense also establish the essential elements of another challenged offense.” 717 N.E.2d
32, 49 (Ind. 1999).
Initially, we note that under traditional double jeopardy analysis, a conspiracy
prosecution is not barred under the statutory elements test because the conspiracy and the
manufacturing methamphetamine statutes each require proof of a fact which the other
does not. See Boles v. State, 595 N.E.2d 272, 273 (Ind. Ct. App. 1992) (citing
Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180 (1932)). Here, Lainhart
appropriately confines his arguments to the “actual evidence test.” Under the actual
evidence test, the evidence presented at trial is examined to determine whether each
challenged offense was established by separate and distinct facts. Lee v. State, 892
N.E.2d 1231, 1234 (Ind. 2008). To show that two challenged offenses constitute the
“same offense” in a claim of double jeopardy, a defendant must demonstrate a reasonable
9
possibility that the evidentiary facts used by the fact finder to establish the essential
elements of one offense may also have been used to establish the essential elements of a
second challenged offense. Id. The Indiana Supreme Court has determined the
possibility to be remote and speculative and therefore not reasonable when finding no
sufficiently substantial likelihood that the jury used the same evidentiary facts to establish
the essential elements of two offenses. Hopkins v. State, 759 N.E.2d 633, 640 (Ind.
2001) (citations omitted).
The charging information for Count I alleges that Lainhart “did . . . unlawfully,
knowingly or intentionally, conspire to manufacture methamphetamine, with intent to
manufacture methamphetamine, he agreed and conspired with [Beeson] to manufacture
methamphetamine, and he performed an overt act in furtherance of the conspiracy by
purchasing the pseudoephedrine, a key ingredient in the process of manufacturing
methamphetamine.” Appellant’s Appendix at 42. The charging information for Count II
alleges that Lainhart “did . . . unlawfully, knowingly or intentionally, manufacture
methamphetamine or possess with intent to manufacture methamphetamine.” Id. at 27.
First, regarding the conspiracy with Beeson to manufacture methamphetamine
charge, the record reveals that the State presented evidence that Lainhart purchased
pseudoephedrine from various sources on the following dates in 2010: April 5, April 13,
April 26, May 9, May 30, June 7, and June 9. Also, Beeson purchased pseudoephedrine
on May 9, May 20, and June 2, 2010. At trial, Beeson testified that her purchases of
pseudoephedrine were for the purpose of Lainhart manufacturing methamphetamine.
Regarding Count II, manufacturing methamphetamine, the record reveals that the
State presented evidence, including the pseudoephedrine logs, the testimony of Beeson
10
and Marshall, and the condoms filled with prescription pills recovered from the master
bedroom, that Lainhart resided at 18022 Laurel Road, Connersville IN, 47331, which was
searched by Trooper Franklin on June 15, 2010. Trooper Franklin discovered numerous
items throughout the house and in a burn pile evidencing that methamphetamine had been
manufactured on the premises including unused coffee filters, a large commercial funnel,
glue sticks, a container of lye or sodium hydroxide, a bottle of sulfuric acid, a large green
thermos, a black plastic and metal strainer, and thirteen glass jars. Also, he discovered
used coffee filters and a coffee grinder, each of which contained substances which tested
positive for pseudoephedrine, as well as pieces of foil and an empty blister pack which
tested positive for methamphetamine and pseudoephedrine. In addition to this physical
evidence, Marshall testified that on April 17, 2010, he traveled to Connersville and
purchased pseudoephedrine for Lainhart, and Lainhart subsequently invited him to his
house on Laurel Road. Marshall testified that he visited Lainhart’s house that evening
where the men manufactured methamphetamine on Lainhart’s driveway. Lainhart gave
Marshall a quarter gram of methamphetamine as a result of their activities.
Based upon the record, we find that clear and independent evidence was presented
regarding the two crimes for which Lainhart was convicted, and accordingly we cannot
say that there exists a reasonable possibility that the evidentiary facts used by the jury to
establish Lainhart’s conviction under Count I may also have been used to establish the
essential elements of Count II. Simply, there is not a sufficiently substantial likelihood
that the evidence of Beeson’s agreement with Lainhart to manufacture methamphetamine
and Lainhart’s purchasing of pseudoephedrine was used to prove Count II, manufacturing
methamphetamine, which the State proved via the testimony of Marshall and the physical
11
evidence discovered at the Laurel Road property. Thus, we conclude that Lainhart’s
convictions for Counts I and II do not violate Indiana’s prohibition against double
jeopardy.6 See Micheau v. State, 893 N.E.2d 1053, 1066 (Ind. Ct. App. 2008) (holding
that the defendant’s convictions for possession of methamphetamine with the intent to
manufacture and attempting to manufacture more than three grams of methamphetamine
did not violate Indiana’s double jeopardy clause), trans. denied; Storey v. State, 875
N.E.2d 243, 250 (Ind. Ct. App. 2007) (holding that the State “set forth independent
evidence” that the defendant committed the offenses of possession of methamphetamine
in excess of three (3) grams with intent to deliver and manufacturing methamphetamine
in excess of three (3) grams, and the defendant’s convictions did not violate double
jeopardy), trans. denied.
II.
The second issue is whether the court abused its discretion and committed
fundamental error by admitting evidence of Lainhart’s uncharged misconduct.
Specifically, Lainhart contends that the admission of certain evidence violated Ind.
Evidence Rule 404(b).7
6
We note that the Indiana Supreme Court has identified five common law or statutory double
jeopardy categories in addition to the constitutional actual evidence test including incidents in which the
“conviction and punishment for the crime of conspiracy where the overt act that constitutes an element of
the conspiracy charge is the very same act as another crime for which the defendant has been convicted
and punished.” Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002) (emphasis added). Here, the overt
act of Lainhart purchasing pseudoephedrine is not the very same act as Count II, the manufacturing of
methamphetamine.
7
Lainhart also appears to challenge the admission into evidence of a prior conviction for
intimidation as a violation of Ind. Evidence Rule 609. Ind. Evidence Rule 609 provides: “For the purpose
of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or an
attempt of a crime shall be admitted but only if the crime committed or attempted is (1) murder, treason,
rape, robbery, kidnapping, burglary, arson, criminal confinement or perjury; or (2) a crime involving
dishonesty or false statement.” (Emphasis added). However, Lainhart did not testify at trial. Lainhart
12
We review the trial court’s ruling on the admission of evidence for an abuse of
discretion. Noojin v. State, 730 N.E.2d 672, 676 (Ind. 2000). We reverse only where the
decision is clearly against the logic and effect of the facts and circumstances. Joyner v.
State, 678 N.E.2d 386, 390 (Ind. 1997), reh’g denied. Even if the trial court’s decision
was an abuse of discretion, we will not reverse if the admission constituted harmless
error. Fox v. State, 717 N.E.2d 957, 966 (Ind. Ct. App. 1999), reh’g denied, trans.
denied.
However, as Lainhart recognizes, in some instances the challenged evidence was
not objected to when it was presented at trial. To avoid waiver of this issue regarding
such evidence, Lainhart invokes the fundamental error doctrine, which permits appellate
review of otherwise procedurally defaulted claims. See Southward v. State, 957 N.E.2d
975, 977 (Ind. Ct. App. 2011). “The fundamental error doctrine is ‘extremely narrow,’
requiring an error ‘so prejudicial that a fair trial is impossible.’” Id. (quoting Sasser v.
State, 945 N.E.2d 201, 203 (Ind. Ct. App. 2011), trans. denied). “Blatant violations of
basic principles, coupled with substantial potential or actual harm and denial of due
process constitute fundamental error.” Id.; see also Benson v. State, 762 N.E.2d 748, 755
(Ind. 2002) (“To qualify as fundamental error, an error must be so prejudicial to the rights
of the defendant as to make a fair trial impossible. To be fundamental error, an error
must constitute a blatant violation of basic principles, the harm or potential for harm must
be substantial, and the resulting error must deny the defendant fundamental due
process.”).
Ind. Evidence Rule 404(b) provides:
does not point to authority to show that Ind. Evidence Rule 609 applies in this context.
13
Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in order to show action
in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident, provided that upon request by
the accused, the prosecution in a criminal case shall provide reasonable
notice in advance of trial, or during trial if the court excuses pre-trial notice
on good cause shown, of the general nature of any such evidence it intends
to introduce at trial.
Rule 404(b) is “designed to prevent the jury from assessing a defendant’s present guilt on
the basis of his past propensities.” Hicks v. State, 690 N.E.2d 215, 218 (Ind. 1997); see
also Southward, 957 N.E.2d at 977 (“Use of Evid.R. 404(b) evidence carries with it the
risk of the ‘forbidden inference’ that a person’s bad act on a prior occasion shows that the
act now at issue conforms with such person’s propensity to commit said bad acts.”).
“Evid.R. 404(b) evidence is not wholly precluded, however, and may be admissible for
other purposes” as noted in the rule. Southward, 957 N.E.2d at 977. In such cases, the
trial court must find that the Ind. Evidence Rule 404(b) evidence is relevant to an issue
other than propensity, and balance such evidence’s probative value against its prejudicial
effect under Indiana Evidence Rule 403. Id.In making his argument on this point, Lainhart points to three instances from the
jury trial. Specifically, he makes arguments regarding the introduction of his “previous
conviction for Intimidation, his alleged plans to take prescription pills into jail with him,
and his prosecution in another case in which Scarette was involved . . . .” Appellant’s
Brief at 23.
We begin by addressing the first two instances raised by Lainhart regarding the
intimidation conviction and the admission of the two condoms filled with prescription
pills. During the State’s redirect examination of Trooper Franklin, the State moved to
14
admit the condoms discovered in the master bedroom at the Laurel Road property, and
Lainhart objected, arguing that such evidence was more prejudicial than probative under
Ind. Evidence Rule 403 or that it was evidence of uncharged other bad acts. The
prosecutor responded that the evidence was being admitted to prove Lainhart’s residence,
noting that he was “not saying these are illegal,” that he “didn’t even identify them what
they are,” and that he would “tie it together with [Beeson] when she” testified. Transcript
at 159. The court noted Lainhart’s objection and admitted the evidence.
The State subsequently called Beeson who testified regarding her moving into the
Laurel Road property, that Lainhart told her “he was gunna [sic] go to jail on an
intimidation charge, and he ask [sic] me if I would come out and look after his house and
his dogs while he went away, and I said that I would.” Id. at 181. Also, over Lainhart’s
objection, Beeson testified that Lainhart packaged the prescription pills in the condoms
recovered from the bedroom because he “was going to jail and . . . he was going to take”
them into the jail by inserting them into his rectum. Id. at 196.
The court overruled Lainhart’s objection regarding the condoms on the basis that
the evidence was being offered to prove that Lainhart was living at the Laurel Road
property. The court instructed the jury after Beeson’s testimony that her testimony could
be considered only “to show you that she was in a place where he was and that she
observed something that was his . . . . [Y]ou can consider in terms of location.” Id. at
198. The court instructed the jury not to consider the evidence for the purpose that
Lainhart “told her he was going to jail on some unrelated crime, and that he was going to
use these items and this method to get those items into the facility that would hold him
under some unrelated crime.” Id.
15
To the extent that Lainhart objected, we cannot say that the court abused its
discretion in overruling Lainhart’s objection to the admission of the condoms for the
limited purpose of proving Lainhart’s residency. The court properly provided a limiting
instruction telling the jury that it could consider the condoms for the sole purpose of
residency. Further, we cannot conclude under the circumstances that the prejudicial
effect of the testimony of Beeson outweighed its probative value under Ind. Evidence
Rule 403. The admission of this evidence under the circumstances as limited by the trial
court does not require reversal of Lainhart’s convictions. Also, to the extent that Lainhart
challenges the introduction of his intimidation charge, we note that he did not object at
trial to Beeson’s testimony on this point, and also the court as part of its limiting
instruction stated that the jury was not to consider the evidence presented for the purpose
that Lainhart told Beeson that he was going to jail on some unrelated crime.
Accordingly, we cannot say that any error in admitting this evidence was so prejudicial as
to result in a denial of Lainhart’s due process rights, and accordingly find that the
admission of this evidence did not constitute fundamental error.
Finally, Lainhart argues that the court abused its discretion during voir dire and
that the fundamental error doctrine applies. Lainhart draws our attention to the following
colloquy between the prosecutor and a prospective juror, who ultimately did not serve on
the jury panel, during voir dire:
JUROR: I don’t know [Lainhart] personally, but I have a
niece that was arrested at the time with him.
PROSECUTOR: Who is your niece?
JUROR: Do I need to say? Bonnie Scarett [sic].
16
*****
PROSECUTOR: And the niece your [sic] talking about is not this
case.
JUROR: Ok.
PROSECUTOR: But . . . . are . . . . . is that correct?
JUROR: I (inaudible).
PROSECUTOR: You heard the witnesses that the States [sic]
intends to call. That would be Peggy Beeson,
Kenny Marshall, Trooper Franklin and so
Peggy Beeson’s not your niece, so . . . .
JUROR: No.
PROSECUTOR: And you don’t know Kenny Marshall?
JUROR: No.
PROSECUTOR: So if its [sic] got nothing to do with . . . . in the
case were [sic] talking . . . . could you be fair
and impartial and I say only you can decide
that?
JUROR: I’m not sure.
Id. at 54-55.
We note that regarding this colloquy, the State was not presenting evidence but
was merely conducting voir dire. Indeed, Lainhart does not challenge the propriety of the
State’s questioning of the jurors. See Sundling v. State, 679 N.E.2d 988, 994 (Ind. Ct.
App. 1997) (“It is axiomatic that voir dire is not to be used to begin trying the case before
any evidence is taken.”) (citing Robinson v. State, 260 Ind. 517, 297 N.E.2d 409 (1973);
Hopkins v. State, 429 N.E.2d 631 (Ind. 1981)), reh’g denied (Chezem, J., dissenting); see
also Sundling, 679 N.E.2d at 994-995 (“Our supreme court has held that “it is not the
17
function of voir dire examination to ‘inform’ the jurors of anything.”) (quoting Blackburn
v. State, 271 Ind. 139, 390 N.E.2d 653, 656 (1979)) (Chezem, J., dissenting). This
colloquy cannot reasonably be construed as a presentation of evidence by the State, and it
does not constitute fundamental error. The prospective juror made a passing reference to
an arrest involving Lainhart and Bonnie Scarette. The prospective juror did not state
specific charges upon which Lainhart was arrested in this matter. To that end, during the
State’s case-in-chief Marshall testified that Scarette was present with him and Lainhart on
the evening of April 17, 2010, when they cooked methamphetamine on Lainhart’s
driveway. The prospective juror stated that “I don’t know [Lainhart] personally, but I
have a niece that was arrested at the time with him.” Transcript at 54 (emphasis added).
Accordingly, we cannot say that any error in voir dire was so prejudicial as to result in a
denial of Lainhart’s due process rights, and accordingly find no fundamental error.
III.
The third issue is whether the State failed to establish a proper chain of custody for
certain evidence. As noted above, the sufficiency of an evidentiary foundation is a matter
left to the trial court’s sound discretion, and we will reverse only upon a showing of an
abuse of that discretion. Payne v. State, 658 N.E.2d 635, 644 (Ind. Ct. App. 1995), trans.
denied. An abuse of discretion occurs if a trial court’s decision is clearly against the
logic and effect of the facts and circumstances before the court. Roush v. State, 875
N.E.2d 801, 808 (Ind. Ct. App. 2008).
Regarding chain of custody in particular, the Indiana Supreme Court has held:
The requirement that a chain of custody be proven by a party submitting
physical evidence at trial is an attempt to satisfy the goal of assuring the
trial court that the evidence submitted has not been substituted or tampered
18
with. While the State is not required to exclude every possibility of
tampering, the chain of custody must give reasonable assurances that the
property passed through the hands of the parties in an undisturbed
condition.
Johnson v. State, 580 N.E.2d 670, 671-672 (Ind. 1991) (quotation and citation omitted).
Further, “the State need not establish a perfect chain of custody whereby any gaps go to
the weight of the evidence and not to admissibility.” Culver v. State, 727 N.E.2d 1062,
1067 (Ind. 2000), reh’g denied.
Here, we find that the State demonstrated chain of custody for the exhibits in
question. Trooper Franklin testified regarding the coffee grinder, marked as State’s
Exhibit 1, that he placed his initials at the top seal and handwrote the case number, the
item number, the property receipt, his name, the “P number” and the date he packaged the
evidence, and that these notations were recognizable by him as he was handling the
exhibit on the witness stand. Transcript at 132. He testified that after he packaged the
exhibit he “took it into evidence and sent it to the lab” and that after testing “[i]t was
returned to the evidence room and then [he] picked it up from there and brought it here.”
Id. Trooper Franklin also testified that State’s Exhibit 1 looked the same as when he “got
it” except that the powder originally contained inside was missing because it was
removed for testing. Id. Trooper Franklin testified similarly regarding State’s Exhibits 2
(coffee filters) and 3 (portions of aluminum foil displaying burn marks on the bottom).
Yovanovich testified that for items she tests she requests an item from the
evidence clerk who procures it from their “secured vault,” and they will “do a hand to
hand transaction which is pen protected.” Id. at 107. Yovanovich testified that “once the
evidence comes into the laboratory a bar code is put on it with the laboratory file number
19
so [she] can track the evidence from that bar code,” and that “once [she has] opened
evidence [she] will write the . . . . this case number, the item number and [her] initials on
the evidence.” Id. at 107-108.
Regarding State’s Exhibit 1, the coffee grinder, Yovanovich testified that she
could identify it “by the bar code that was placed on” it, that the lab assigns each piece of
evidence a file number and item number which were listed on the bottle, and that her
initials were on the back of the bottle containing the evidence as well as “on the seal at
the bottom right” which were made when she resealed the bottle.8 Id. at 108. Regarding
State’s Exhibit 2, the coffee filters, she testified that the exhibit similarly contained the
file number, was labeled item number 11, displayed a bar code, and that her initials were
on the bag containing the evidence and along the seal at the bottom. Regarding State’s
Exhibit 3, Yovanovich testified that although the laboratory file number and case
numbers appeared to “have been rubbed off,” she was still confident that the exhibit was
in the same package she received from the Indiana State Police because “it still has [her]
markings at the seal, so [she] did open that and reseal it, and it has the same agency case
number on the bar code, and also the internal packaging matches the description of what
[she] did analyze.” Id. at 115.
Based upon our review of the record, we conclude that the State sufficiently
demonstrated chain of custody and the trial court did not abuse its discretion in admitting
the challenged exhibits.
IV.
8
The exhibits pertaining to this case were labeled with the file number “10C130.” Transcript at
108.
20
The fourth issue is whether the evidence presented was sufficient to support
Lainhart’s convictions for conspiracy to manufacture methamphetamine and
manufacturing methamphetamine. When reviewing claims of insufficiency of the
evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v.
State, 656 N.E.2d 816, 817 (Ind. 1995), reh’g denied. Rather, we look to the evidence
and the reasonable inferences therefrom that support the verdict. Id. We will affirm the
conviction if there exists evidence of probative value from which a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. Id. The uncorroborated
testimony of one witness is sufficient to sustain a conviction. Ferrell v. State, 565 N.E.2d
1070, 1072-1073 (Ind. 1991).
The offense of conspiracy to manufacture methamphetamine is governed by Ind.
Code § 35-41-5-2 and Ind. Code § 35-48-4-1.1. Ind. Code § 35-41-5-2 provides that “[a]
person conspires to commit a felony when, with intent to commit the felony, he agrees
with another person to commit the felony[,]” and “either the person or the person with
whom he agreed performs an overt act in furtherance of the agreement.” Ind. Code § 35-
48-4-1.1(a), provides that “a person who: (1) knowingly or intentionally: (A)
manufactures . . . methamphetamine, pure or adulterated; or (2) possesses, with intent to:
(A) manufacture . . . methamphetamine, pure or adulterated; commits dealing in
methamphetamine, a Class B felony . . . .” As noted above, in its charging information
for Count I, the State alleged that Lainhart:
[D]id . . . unlawfully, knowingly or intentionally, conspire to manufacture
methamphetamine, with intent to manufacture methamphetamine, he agreed
and conspired with [Beeson] to manufacture methamphetamine, and he
performed an overt act in furtherance of the conspiracy by purchasing the
21
pseudoephedrine, a key ingredient in the process of manufacturing
methamphetamine.
Appellant’s Appendix at 42. Thus, to convict Lainhart under Count I for conspiracy to
manufacture methamphetamine, the State needed to prove that Lainhart: (1) with intent to
manufacture methamphetamine; (2) agreed with Beeson to commit the felony; and (3) an
overt act was performed by Lainhart in furtherance of that agreement by his purchasing
pseudoephedrine. Further, to convict Lainhart under Count II for manufacturing
methamphetamine, the State needed to prove that Lainhart: (1) knowingly or
intentionally; (2) manufactured or possessed with intent to manufacture; (3)
methamphetamine.
First, Lainhart challenges both of his convictions under the “incredible dubiosity”
rule. Lainhart argues that Beeson’s testimony was coerced because she was facing the
same charges and “in exchange for her testimony, she was allowed to plead guilty to
Maintaining a Common Nuisance, a Class D felony.” Appellant’s Brief at 32. Lainhart
also argues that the State failed to link Lainhart to the three purchases of pseudoephedrine
by Beeson. Lainhart argues that Beeson “certainly had substantial motivation to pin the
blame on Lainhart.”9 Id. Lainhart also argues that “Marshall’s testimony was coerced
because he was able to escape prosecution altogether for his methamphetamine
manufacturing and use by implicating Lainhart.” Id. at 35. He also argues that
9
Lainhart also suggests that Beeson indicated in a letter she wrote to him on December 23, 2010,
that she believed he was innocent of the charges. Lainhart argues that, in the letter, Beeson “wrote that
she was wrong to have allowed ‘Johnny’ to be unsupervised in Lainhart’s house” and that she “chose to
‘look the other way.’” Appellant’s Brief at 33. However, Beeson indicated at trial that, in the letter, she
was talking about leaving Johnny Gibson, who was her daughter’s half brother on her father’s side,
unsupervised in her apartment in Brookville which Trooper Franklin had “busted for meth lab on January
13” of 2010. Transcript at 202.
22
Marshall’s testimony that he went to Trooper Franklin and implicated himself in the
manufacturing activity is wholly improbable.
Initially, to the extent that Lainhart challenges the testimony of Beeson and
Marshall and argues that they testified against him to obtain leniency, we note that if
there is an existing agreement between the State and one of its witnesses, a prosecutor has
a duty to reveal it. Whatley v. State, 908 N.E.2d 276, 283 (Ind. Ct. App. 2009) (citing
Rubalcada v. State, 731 N.E.2d 1015, 1024 (Ind. 2000) (noting that a prosecutor must
disclose “any agreement made with the State’s witness, such as promises, grants of
immunity, or reward offered in return for testimony”)), trans. denied. The purpose of this
rule is to assist the trier of fact in assessing the witness’s credibility. See id. (citing
McCorker v. State, 797 N.E.2d 257, 266 (Ind. 2003)). Here, Beeson testified that she had
been charged with the same crimes as Lainhart but that she pled guilty to a lesser charge
of maintaining a common nuisance in open court, and she indicated that she was not
receiving a benefit in exchange for her testimony on that day. Also, although Marshall
initially testified that neither Trooper Franklin nor the State made any promises in
exchange for his testimony, he later admitted that he was promised that no charges would
be filed against him if he cooperated and testified. Thus, the jury was able to consider
any promises of leniency in considering the testimony of Beeson and Marshall, and
Lainhart’s arguments regarding their testimony on this score amount to an invitation that
we reweigh the evidence, which we cannot do. See Jones v. State, 783 N.E .2d 1132,
1139 (Ind. 2003).
Further, to the extent Lainhart asserts that the incredible dubiosity rule requires
reversal of his convictions under both Counts I and II, we note that the rule applies only
23
in very narrow circumstances. See Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). The
rule is stated as follows:
If a sole witness presents inherently improbable testimony and there is a
complete lack of circumstantial evidence, a defendant’s conviction may be
reversed. This is appropriate only where the court has confronted
inherently improbable testimony or coerced, equivocal, wholly
uncorroborated testimony of incredible dubiosity. Application of this rule
is rare and the standard to be applied is whether the testimony is so
incredibly dubious or inherently improbable that no reasonable person
could believe it.
Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007) (quoting Love, 761 N.E.2d at 810).
Here, Lainhart fails to show that the testimony of either Beeson or Marshall was
inherently contradictory or inconsistent. Indeed, such testimony comported with the
pseudoephedrine logs discovered by Trooper Franklin. Further, we cannot say that the
testimony of either Beeson or Marshall was so inherently improbable that no reasonable
person could believe it. Accordingly, Lainhart does not demonstrate how the testimony
against him was incredibly dubious.
Finally, to the extent that Lainhart argues regarding Count II that the State “never
linked Lainhart to the methamphetamine on the aluminum foil pieces” discovered at the
Laurel Road property and likewise did not sufficiently link Lainhart to the manufacturing
activity on the premises, we note that ample evidence was presented demonstrating that
methamphetamine had been manufactured at the Laurel Road property which was
Lainhart’s residence, including the foil pieces which contained methamphetamine.
Marshall testified that Lainhart manufactured methamphetamine on the premises on April
17, 2010, after the men drove to Connersville to purchase pseudoephedrine and ether for
use in the manufacturing. Beeson testified that Lainhart manufactured methamphetamine
24
every seven to ten days. Lainhart’s arguments are an invitation for us to reweigh the
evidence and reassess the credibility of the witnesses, which we will not do. See Gregory
v. State, 885 N.E.2d 697, 705-706 (Ind. Ct. App. 2008), trans. denied.
V.
The fifth issue is whether Lainhart’s sentence is inappropriate in light of the nature
of the offense and the character of the offender. Ind. Appellate Rule 7(B) provides that
we “may revise a sentence authorized by statute if, after due consideration of the trial
court’s decision, [we find] that the sentence is inappropriate in light of the nature of the
offense and the character of the offender.” Under this rule, the burden is on the defendant
to persuade the appellate court that his or her sentence is inappropriate. Childress v.
State, 848 N.E.2d 1073, 1080 (Ind. 2006). Lainhart argues that his maximum sentence is
inappropriate.
Our review of the nature of the offense reveals that Lainhart manufactured
methamphetamine at the Laurel Road property. He conspired with Beeson to
manufacture methamphetamine, in which Beeson purchased pseudoephedrine on three
occasions pursuant to the conspiracy. Beeson testified at trial that Lainhart manufactured
methamphetamine every seven to ten days. Marshall also testified that he purchased
pseudoephedrine for the purpose of Lainhart manufacturing methamphetamine.
Our review of the character of the offender reveals that Lainhart has a very lengthy
criminal history. As a juvenile, Lainhart was adjudicated delinquent and placed on
probation for two years for charges of theft, possession of marijuana, and illegal
possession of alcohol by a minor. As an adult, Lainhart’s criminal history spans twenty-
five years. In 1985, Lainhart was convicted of illegal possession of hashish and minor
25
consuming alcohol and was sentenced to one year suspended to probation. In 1986,
Lainhart was convicted of driving under the influence and possession of marijuana as a
class D felony and was sentenced to four years with all but thirty days suspended to
probation. As a result, he was found to have violated his 1985 probation. Lainhart was
also convicted in 1986 of minor consuming alcohol. In January 1992, he was convicted
of “Driving Under the Influence Refusal” as a class D felony which was amended to a
class C misdemeanor and he was sentenced to sixty days probation. Appellant’s
Appendix at 139. In October 1992, Lainhart was found guilty of public intoxication as a
class B misdemeanor and was sentenced to 180 days suspended to probation. On
February 28, 1997, he was convicted of carrying a handgun without a license as a class C
felony and criminal recklessness with a deadly weapon as a class D felony and was
sentenced to eight years with four years suspended to probation. That same day, under a
different cause number, Lainhart was sentenced to three years in the department of
correction for battery on a person under the age of fourteen as a class D felony. On
March 4, 2003, Lainhart was sentenced to one year with 355 days suspended to probation
for resisting law enforcement as a class A misdemeanor and 180 days suspended for
reckless driving as a class B misdemeanor. In 2006, Lainhart was sentenced to one year
suspended to probation for possession of precursors as a class A misdemeanor. That
same year, under different cause numbers, Lainhart was sentenced to one year suspended
for fleeing law enforcement as a class D felony and one year with two months suspended
for interference with law enforcement animal as a class A misdemeanor to be served
concurrently, and also one year with two months suspended for failure to appear as a
class A misdemeanor also to be served concurrently. On September 30, 2010, Lainhart
26
was sentenced to one year for intimidation as a class A misdemeanor. Finally, at the time
the presentence investigation report was completed, Lainhart had a pending jury trial for
manufacturing methamphetamine as a class B felony set for June 2011.
After due consideration for the sentence imposed by the trial court, and in light of
Lainhart’s criminal history, we cannot say that Lainhart’s aggregate sentence of thirty
years for conspiracy to manufacture methamphetamine and manufacturing
methamphetamine as class B felonies is inappropriate in light of the nature of the offense
and the character of the offender.
For the foregoing reasons, we affirm Lainhart’s convictions and sentence for
conspiracy to manufacture methamphetamine and manufacturing methamphetamine.
Affirmed.
BAKER, J., concurs.
KIRSCH, J., concurs as to Issues I, III, IV and V, and concurs in result as to Issue II.
27