Cummings v. State, No. 13A04-0501-CR-43 (IN 5/17/2006), No. 13A04-0501-CR-43

CitationNo. 13A04-0501-CR-43
Case DateMay 17, 2006
CourtSupreme Court of Indiana

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CONNIE CUMMINGS, Appellant-Defendant,
v. [PG] STATE OF INDIANA, Appellee.
No. 13A04-0501-CR-43
Court of Appeals of Indiana.
May 17, 2006

APPEAL FROM THE CRAWFORD CIRCUIT COURT, The Honorable K. Lynn Lopp, Judge, Cause No. 13C01-0302-FA-002.

SUSAN SCHULTZ, Corydon, Indiana, ATTORNEY FOR APPELLANT.

STEVE CARTER, Attorney General of Indiana, NICOLE M. SCHUSTER, Deputy Attorney General Indianapolis, Indiana, ATTORNEYS FOR APPELLEE.

MEMORANDUM DECISION

SULLIVAN, Judge.

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Following a jury trial, Appellant, Connie Cummings, was convicted of Conspiracy to Deal in Methamphetamine, a Class A felony,1 Possession of Methamphetamine, a Class C felony,2 Maintaining a Common Nuisance, a Class D felony,3 and Possession of Chemical Reagents or Precursors with Intent to Manufacture, a Class C felony.4 Upon appeal, Cummings presents six issues for our review, which we consolidate and restate as the following four:

I. Whether the search warrant was supported by probable cause.

II. Whether the trial court erred in denying Cummings's motion for a directed verdict.

III. Whether the evidence is sufficient to support the possession of methamphetamine and conspiracy to deal in methamphetamine convictions.

IV. Whether the convictions for conspiracy and possession of methamphetamine violate double jeopardy principles.

We affirm in part, reverse in part, and remand with instructions.

The facts most favorable to the convictions reveal that on February 18, 2003, Indiana State Police Trooper Mark Green testified at a probable cause hearing and requested the issuance of a search warrant for the residence of Coy and Connie Cummings. At the conclusion of the hearing, the trial court found probable cause and issued a search warrant for the Cummingses' property. Later that same day, Trooper Green and other officers executed the search warrant. After receiving no response to

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their knocks at the back door to the residence, the officers made entry through the door, which happened to be unlocked.5 The officers found Coy asleep on the living room couch and Cummings asleep in the master bedroom. The officers directed Coy and Cummings to have a seat at a table in the kitchen area and then advised them of their Miranda rights and explained that the officers' purpose in the residence was to execute a search warrant. After one of the officers discovered a small amount of marijuana in the master bedroom, the officers placed Coy and Cummings under arrest.

The officers continued with their search of the residence and the premises.6 In the master bedroom, the officers located three baggies of suspected methamphetamine, two handguns, burnt marijuana roaches, $626 in cash, a package of cigarette rolling papers, a billfold which contained a small baggie of suspected methamphetamine and Coy's business card, drug paraphernalia, and a purse which contained a loaded handgun, strips of aluminum foil,7 drug paraphernalia, and Cummings's driver's license. In the living room area of the residence, the officers found a plastic bag containing fifty blister packs of pseudoephedrine, additional drug paraphernalia, and four long guns. In the utility room, the officers discovered a Pledge canister with a screw-off bottom which contained twenty-four baggies of suspected methamphetamine.

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In a small barn located south of the house, the officers located a locked tool box which was emitting an odor of ether or anhydrous ammonia. Coy stated that he did not know where a key to unlock it could be found. Once the troopers broke open the tool box, they found two thermos jugs containing a chemical substance, which upon testing was confirmed to be anhydrous ammonia. In the back of a truck which was registered to the Cummingses, the troopers found seven cans of starting fluid which had been punched and emptied. In a metal pole barn also located on the property, the officers discovered glassware, a container of "liquid fire," digital scales, aluminum foil, measuring spoons, plastic baggies, coffee filters, and starting fluid.

On February 20, 2003, the State charged Cummings with Count I, dealing in methamphetamine, a Class A felony; Count II, attempted dealing in methamphetamine, a Class A felony; Count III, conspiracy to deal in methamphetamine, a Class A felony; Count IV, possession of methamphetamine, a Class C felony; Count V, illegal possession of anhydrous ammonia or ammonia solution, a Class C felony; Count VI, maintaining a common nuisance, a Class D felony; Count VII, possession of marijuana, a Class A misdemeanor; Count VIII, illegal possession of anhydrous ammonia or ammonia solution, a Class C felony; and Count IX, damaging, removing, covering, or altering identification numbers, a Class C felony.

On May 29, 2003, Cummings moved to suppress the evidence seized as a result of the search of her residence. After a hearing held on September 2, 2003, the trial court denied Cummings's motion to suppress on September 9, 2003. Cummings renewed her

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motion at the commencement of the trial and continued to object to the admission of evidence seized pursuant to the search warrant throughout the trial.

Before trial, the State moved to amend several Counts and to dismiss Counts II and IX.8 The case proceeded to a jury trial on August 16, 2004 as to Counts I, III, IV, V, VI, VII, and VIII. After the State presented its case-in-chief, Cummings moved for a directed verdict on all counts. The trial court denied the motion except as to Count VII, which the court dismissed. On August 19, 2004, the jury returned guilty verdicts on Counts III, IV, VI, and VIII, a not-guilty verdict on Count V, and hung on Count I. On September 16, 2004, the trial court sentenced Cummings to an aggregate sentence of twenty years with five years suspended.9 Cummings filed a motion to correct error on October 14, 2004, which the trial court denied on December 14, 2004, after a hearing on the motion held November 18, 2004. Cummings filed the instant appeal on January 7, 2005.

I
Validity of Search Warrant

Cummings first argues that the search warrant was not supported by probable cause, and thus, the evidence seized pursuant to the warrant should not have been admitted at trial. Our standard of review of rulings on the admissibility of evidence is

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effectively the same whether the challenge is made by a pre-trial motion to suppress or by a trial objection. Burkes v. State, 842 N.E.2d 426, 429 (Ind. Ct. App. 2006). We look for substantial evidence of probative value to support the trial court's decision. Id. We consider the evidence most favorable to the court's decision and any uncontradicted evidence to the contrary. Id. See also Kelley v. State, 825 N.E.2d 420, 426 (Ind. Ct. App. 2005) (when ruling upon the admissibility of evidence at trial, the court should consider evidence from a motion to suppress hearing which is favorable to the defendant and which has not been countered or contradicted by foundational evidence offered at trial).

Both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution require that a search warrant be supported by probable cause. The requirement that a warrant be supported by probable cause is also codified at Indiana Code § 35-33-5-1 (Burns Code Ed. Supp. 2005). Probable cause is a fluid concept which has no precise definition. Edwards v. State, 832 N.E.2d 1072, 1077 (Ind. Ct. App. 2005). The determination of probable cause is to be made on a fact by fact basis. Id. The task of the issuing magistrate is to make a practical commonsense decision whether given all the circumstances presented to the magistrate, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Id.; Illinois v. Gates, 462 U.S. 213, 238 (1983). When a defendant questions the validity of a search warrant, the task of the reviewing court is to determine whether the magistrate had a substantial basis for concluding that probable cause existed. Edwards, 832 N.E.2d at 1077. In determining whether a substantial basis existed, the reviewing court must focus

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on whether reasonable inferences drawn from the totality of the evidence support the determination of probable cause while giving significant deference to the magistrate's decision. Id. Reviewing courts should consider only evidence presented to the magistrate and not post hoc justifications for the search. Id.

Cummings contends that the search warrant was invalid for lack of probable cause because the factual basis consisted of totally unsupported hearsay. Cummings's challenge to the search warrant is based upon Indiana Code § 35-33-5-2 (Burns Code Ed. Supp. 2005); she does not assert any claim under either the Fourth Amendment or Article 1, Section 11.

The Indiana legislature has set forth requirements to ensure that hearsay used to support a probable cause finding is reliable. Lloyd v. State, 677 N.E.2d 71, 73 (Ind. Ct. App. 1997), trans. denied. Indiana Code § 35-33-5-2(b) provides that when based upon hearsay, an affidavit must either:

"(1) contain reliable information establishing the credibility of the source and of each of the declarants of the hearsay and establishing that there is a factual basis for the information furnished; or

(2) contain information that establishes that the totality of the circumstances corroborates the hearsay."

In Jaggers v. State, 687 N.E.2d 180, 183 n.3 (Ind. 1997), our Supreme Court noted that Indiana Code § 35-33-5-2 in effect codified changes in Fourth Amendment doctrine on the use of informants to establish probable cause. It has been held that the police, when requesting a search or an arrest warrant, must follow Indiana Code § 35-33-5-2 as it sets forth the minimum information necessary to establish probable cause. Id. See also Esquerdo v. State, 640 N.E.2d 1023, 1029 (Ind. 1994).

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Here, the search warrant was issued based upon the sworn...

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