928 N.E.2d 855 (Ind.App. 2010), 40A01-0907-CR-346, Boggs v. State

Docket Nº:40A01-0907-CR-346.
Citation:928 N.E.2d 855
Opinion Judge:KIRSCH, Judge.
Party Name:Jeffrey D. BOGGS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Attorney:R. Patrick Magrath, Alcorn Goering & Sage, LLP, Madison, IN, Attorney for Appellant. Gregory F. Zoeller, Attorney General of Indiana, Kathy Bradley, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Judge Panel:DARDEN, J., and BAILEY, J., concur.
Case Date:June 15, 2010
Court:Court of Appeals of Indiana
 
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928 N.E.2d 855 (Ind.App. 2010)

Jeffrey D. BOGGS, Appellant-Defendant,

v.

STATE of Indiana, Appellee-Plaintiff.

No. 40A01-0907-CR-346.

Court of Appeals of Indiana.

June 15, 2010

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R. Patrick Magrath, Alcorn Goering & Sage, LLP, Madison, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Kathy Bradley, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

KIRSCH, Judge.

Jeffrey D. Boggs was convicted after a jury trial of attempted dealing in methamphetamine 1 as a Class B felony, two counts of possession of a precursor while in possession of a firearm,2 each as a Class C felony, possession of methamphetamine 3 as a Class D felony, and possession of marijuana 4 as a Class A misdemeanor, and was found to be a habitual offender.5 He was sentenced to a fifteen-year aggregate sentence for the underlying convictions with a twenty-five year enhancement for the habitual offender determination for a total sentence of forty years. Boggs appeals, raising the following restated issues:

I. Whether the trial court abused its discretion in admitting evidence obtained pursuant to a search warrant that was based upon information discovered during an unconstitutional and warrantless search of his vehicle;

II. Whether sufficient evidence was presented at trial to convict him where the State did not present scientific or expert evidence to identify the allegedly illegal substances;

III. Whether sufficient evidence was presented to support his habitual offender determination because the State failed to prove that he had two prior unrelated felony convictions, specifically because a prior federal conviction contained no notation that it was for a felony; and

IV. Whether his aggregate forty-year sentence was inappropriate in light of the nature of the offense and the character of the offender.

We affirm and remand.

FACTS AND PROCEDURAL HISTORY6

On February 11, 2006, sometime after midnight, Detective David Turner of the

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Jennings County Sheriff's Department stopped a vehicle driven by Jessica Driver and arrested her on an outstanding warrant. At the time she was pulled over, Driver had Boggs's minor daughter with her. Although a call by dispatch to Boggs's home had gone unanswered, Deputy Eric Pettit, along with other officers, drove to Boggs's residence in order to determine if he was there and could pick up his daughter. While en route to Boggs's residence, Deputy Pettit was informed by dispatch that there was an outstanding warrant out of Ohio for Boggs's arrest.

Upon arrival, Deputy Pettit parked his police vehicle in Boggs's driveway, walked to the front door, and knocked but received no answer. As he was returning to his vehicle, Deputy Pettit walked past Boggs's Ford Bronco (" Bronco" ), which was parked in the driveway. Deputy Pettit shined his flashlight into the interior of the Bronco in order to determine if anyone was inside because he knew that Boggs drove the Bronco. Tr. at 246, 342-43. When he looked inside the Bronco, Deputy Pettit observed a small propane tank with one end protruding out of a green duffle bag. The end contained the tank fittings, which appeared to be altered from their original state and had a blue/green tint to them. Based upon his experience, Deputy Pettit knew that tanks with altered fittings were often used to steal anhydrous ammonia to manufacture methamphetamine. Id. at 250. Boggs then arrived at his residence, was arrested on the outstanding warrant, and was transported to jail.

Deputy Pettit left to obtain a search warrant for Boggs's residence and property. The basis for the search warrant was not only the observation of the tank inside the Bronco, but also that Deputy Pettit had previously been involved with two other investigations where Boggs was suspected of manufacturing methamphetamine and that police had found digital scales and empty pseudoephedrine blister packs at the earlier traffic stop of a vehicle registered to Boggs and driven by Driver. State's Ex. 1, Hrg. 4-23-07. 7 A search warrant was signed by a judge and executed by police at Boggs's residence.

Among the items found as a result of the search were several receipts for decongestants and cold medicine, bolt cutters, aquarium air line tubing, red high pressure hose, an oxygen tank, a small propane tank with altered fittings, several cans of solvent, coffee filters, burnt aerosol cans, numerous empty burnt pseudoephedrine blister packs, several burnt lithium battery strips and casings, a breathing mask, a plastic bottle containing pink powder, a cigar box containing 252 pills found inside the dryer, two blenders with white powder residue, aluminum foil " boats" 8 with burnt residue, a hollowed-out light bulb with burnt residue, numerous empty decongestant and cold medicine boxes, a plate containing white powder residue, a casino card containing white residue, small bags of marijuana, a box of empty cigarette tubes, and a twelve-gauge shotgun. Tr. at 259-78, 400-10.

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Boggs signed a waiver of rights and was interviewed at the jail. He admitted that he used one of the blenders to crush pills and that the pink substance in the plastic bottle was crushed pills. Id. at 307. He also admitted that the shotgun and tanks found at his house belonged to him and that he cooked methamphetamine. Id. at 301, 310-11, 328. He stated that he had not purchased decongestant pills in awhile, but had others do it for him and that he had others steal anhydrous ammonia for him. Id. at 307, 315. Boggs also told the officers that he usually produced between thirty-five and forty grams of methamphetamine each time he cooked and that he tried to do 400 pills at a time if possible. Id. at 317. He admitted that he was preparing to cook the 252 pills found in the box inside of the dryer. Id. at 321. He stated that he mainly cooked methamphetamine for his own use, but would sometimes sell it for $100 per gram. Id. at 327. He also admitted that the cigarette tubes recovered during the search were used for marijuana. Id. at 329.

On February 15, 2006, the State charged Boggs with attempted dealing in methamphetamine as a Class B felony, two counts of possession of a precursor while in possession of a firearm, each as a Class C felony, possession of methamphetamine as a Class D felony, and possession of marijuana as a Class A misdemeanor. On January 29, 2008, the State filed a motion to amend the information to add a habitual offender enhancement, which the trial court granted. Prior to trial, Boggs filed two motions to suppress, attempting to suppress the evidence discovered at his residence. The trial court denied both motions.

On April 6, 2009, a bifurcated jury trial began, at the conclusion of which, Boggs was found guilty of all the charges and found to be a habitual offender. The trial court sentenced him to fifteen years for the Class B felony attempted dealing in methamphetamine conviction, six years each for the Class C felony possession of precursor convictions, two years for the Class D felony possession of methamphetamine conviction, and one year for the Class A misdemeanor conviction, all to run concurrently to each other. The trial court also sentenced Boggs to twenty-five years for the habitual offender enhancement with the sentence to run consecutively to the other sentences for an aggregate sentence of forty years. Boggs now appeals.

DISCUSSION AND DECISION

I. Admission of Evidence

The admission of evidence is within the sound discretion of the trial court, and we will reverse only on a showing of abuse of discretion. McClendon v. State, 910 N.E.2d 826, 832 (Ind.Ct.App.2009), trans. denied; Goldsberry v. State, 821 N.E.2d 447, 453-54 (Ind.Ct.App.2005). An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and circumstances before the trial court. McClendon, 910 N.E.2d at 832; Goldsberry, 821 N.E.2d at 454.

Boggs argues that all of the evidence obtained pursuant to the search warrant should have been excluded because the warrant was based on Deputy Pettit's observation of the tank inside of the Bronco, which was an unconstitutional search of the vehicle parked in his driveway. He contends that he had an expectation of privacy in his residence and the curtilage surrounding it, which included the driveway and the Bronco parked upon it. Boggs also claims that Deputy Pettit had no legitimate reason for investigating the Bronco because the officer's stated purpose for being at Boggs's residence

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was to see if Boggs was home so he could pick up his daughter and a previous unanswered call to Boggs had shown that he was not home. Further, even if Deputy Pettit's stated reason for going to Boggs's home was genuine, Boggs asserts that, as soon as the officer knocked on the door and received no answer, he was required to leave the property immediately and seek a warrant if he wanted to investigate any further. Therefore, Boggs contends that Deputy Pettit's observation of the tank was a violation of his Fourth Amendment rights and, because this observation was the sole basis for the search warrant, all evidence seized pursuant to such warrant should not have been admitted into evidence at his trial.9

The Fourth Amendment protects persons from unreasonable search and seizure, and this protection has been extended to the states through the Fourteenth Amendment. U.S. Const. amend. IV; Matson v. State, 844 N.E.2d 566, 570 (Ind.Ct.App.2006), trans. denied. Generally, a search warrant is a prerequisite to a...

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