Bush v. State
| Decision Date | 12 August 2002 |
| Docket Number | No. 69A01-0201-CR-22.,69A01-0201-CR-22. |
| Citation | 772 N.E.2d 1020 |
| Parties | Jeremy BUSH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Ross G. Thomas, Dillon Law Office, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Cecelia K. Hemphill, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Jeremy Bush appeals his convictions for dealing in a schedule II controlled substance, a class B felony, and possession of reagents or precursors with the intent to manufacture methamphetamine, a class D felony. We affirm in part and reverse in part.
The issue Bush raises on appeal is whether there is sufficient evidence to support each of his convictions. We address sua sponte, however, whether Bush's conviction for possession of reagents or precursors with intent to manufacture methamphetamine is a lesser included offense of dealing in methamphetamine by manufacturing it.
The facts most favorable to the judgment are that on June 27, 2000, Indiana State Police Officer Grant Martin obtained a search warrant for Bush's residence to search for evidence of marijuana. Inside the residence, Martin found items associated with the manufacturing of methamphetamine. Martin obtained a second search warrant, pursuant to which the Indiana State Police clandestine lab team searched the residence.
Based on the evidence discovered during the search, the State charged Bush with four counts relating to possession and possession with the intent to deliver controlled substances. The State ultimately dismissed two counts and amended the remaining two, which charged Bush with dealing in a controlled substance and possession of precursors. After a jury trial, Bush was convicted as charged.
When reviewing a claim of insufficient evidence, we consider only evidence that supports the verdict, and draw all reasonable inferences therefrom. Warren v. State, 725 N.E.2d 828, 834 (Ind.2000). We neither reweigh the evidence nor judge the credibility of witnesses. Id. We uphold a conviction if there is substantial evidence of probative value from which a jury could have found the defendant guilty beyond a reasonable doubt. Id. Circumstantial evidence alone is sufficient to sustain a conviction. Id.
Indiana Code Section 35-48-4-2(a)(1) provides that a person is guilty of dealing in a schedule II controlled substance if he knowingly or intentionally manufactures methamphetamine. Bush's argument is based on the fact that the police found no methamphetamine at the scene and no evidence was found directly establishing that methamphetamine had been manufactured at the scene. He maintains that without "proof that the controlled substance methamphetamine had in fact been produced, the evidence was insufficient to sustain the conviction...." Appellant's Br. p. 7. He contends that the proper charge would have been attempt to manufacture.
The police found several items used in the manufacture of methamphetamine, including a can of denatured alcohol, a coffee grinder with white residue in it, empty containers of tincture of iodine and hydrogen peroxide, bottles of mini-thins that contain pseudoephedrine, and a turkey baster. The police also recovered two jars of liquids, both of which contained ephedrine or pseudoephedrine. A forensic scientist with the Indiana State Police testified that the only use for soaking pseudoephedrine pills in alcohol is the manufacture of methamphetamine. The police also found two boxes of nasal decongestants, which held plastic bags of white powder; these also contained ephedrine or pseudoephedrine. In a burn pile in the yard, the police recovered numerous burnt blister packs with pseudoephedrine writing. The police also recovered a notebook containing instructions for extracting pseudoephedrine from mini-thin tablets and purified iodine crystals using tincture of iodine and hydrogen peroxide.
The State's expert testified that this was an "in process lab," meaning that the process of making methamphetamine had begun, but had not been completed. App. pp. 15, 16, 18. Bush admits the State presented "evidence that items found at the scene could be used to make methamphetamine and that some of the steps which could be taken to manufacture methamphetamine were in progress at the scene." Appellant's Br. p. 7.
The evidence presented by the State is sufficient to establish that he was in the process of manufacturing methamphetamine. Indiana Code Section 35-48-1-18 defines "manufacture" as:
the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container.
Clearly, there was evidence that Bush was producing, preparing, and processing methamphetamine, all of which are encompassed in the definition of "manufacture." The statute does not state that the process must be completed or that there must actually be a final product before it applies. When interpreting a statute, we independently review the statute's meaning and apply it to the facts of the case under review. Bolin v. Wingert, 764 N.E.2d 201, 204 (Ind.2002). If a statute is unambiguous, that is, susceptible to but one meaning, we must give the statute its clear and plain meaning. Id. We presume the legislature intended logical application of the language used in the statute, so as to avoid unjust or absurd results. Id.
Common sense dictates that we reach this conclusion to avoid an absurd result. We refer to a plant that makes widgets as a widget manufacturing plant because it is engaged in the process of making them. A person visiting a plant that contains the necessary parts and instructions for making widgets could reasonably conclude that he is visiting a plant that "manufactures" widgets, even if he never actually sees a completed widget. Likewise, a reasonable juror in this case could certainly conclude that Bush manufactured methamphetamine based upon the circumstantial evidence of its production. In fact, there was no other reasonable explanation for the evidence found at the house other than that he was in the process of making methamphetamine. Bush does not deny that. Thus, with these facts, we conclude that there was more than sufficient evidence to establish Bush was in the process of manufacturing methamphetamine, which is proscribed by Indiana Code Sections 35-48-4-2(a) and 35-48-1-18.
Bush next challenges the sufficiency of the evidence supporting his conviction for possession of reagents or precursors with the intent to manufacture methamphetamine. We conclude sua sponte, however, that this offense is necessarily included in Bush's conviction for dealing in methamphetamine by manufacturing it and reverse the possession of precursors conviction on that basis.
Today, we also decide Iddings v. State, 772 N.E.2d 1006, No. 06A04-0107-CR-286 (Ind.Ct.App. August 12, 2002), in which we state as follows:
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