Gregory v. State

• Decision Date: 05 May 2008
• Docket Number: No. 15A01-0708-CR-348.,15A01-0708-CR-348.
• Parties: Robert R. GREGORY, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

885 N.E.2d 697

Robert R. GREGORY, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 15A01-0708-CR-348.

Court of Appeals of Indiana.

May 5, 2008.

Appeal from the Dearborn Circuit Court; The Honorable James D. Humphrey, Judge; Cause No. 15C01-0611-FB-43.

George A. Leininger, Collins, Hensley & Wynn, Madison, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General Indianapolis, IN, Attorneys for Appellee.

OPINION

BAILEY, Judge.

Case Summary

Appellant-Defendant Robert R. Gregory, Jr. ("Gregory") appeals following his convictions and sentence for Dealing Methamphetamine, as a Class B felony, and Conspiracy.¹ We affirm the conviction and sentence for Dealing Methamphetamine and remand with instructions to vacate the conspiracy conviction.

Issues

Gregory raises four issues on appeal, and we raise one issue, sua sponte:

I. Whether Gregory's conviction for Conspiracy to Deal Methamphetamine violates the principles of double jeopardy;

II. Whether the trial court erred in admitting evidence that was discovered during a search by police;

III. Whether sufficient evidence supports the Dealing conviction;

IV. Whether the prosecutor committed misconduct by comments made throughout the course of the trial; and

V. Whether his sentence is inappropriate.

Facts and Procedural History²

Gregory, Ronnie Smith ("Smith"), and Justin Callaway ("Callaway") met while doing demolition work. The three would normally drive together to the work sites and interacted with each other while on the job. One day on their way home from work, the three discussed and agreed to make methamphetamine. The general agreement was that they would cook the methamphetamine at Callaway's mother's home, located in Dearborn County, and that Gregory would be the "cook" while Smith and Callaway would help. At the time, Callaway's mother was out of town. On November 17, 2006, Gregory purchased two packs of Energizer lithium batteries and paper towels at a local Kroger store. Lithium is commonly used in the methamphetamine manufacturing process.

On November 18, 2006, Callaway returned to his mother's home to find Smith and Gregory waiting for him in a truck. Gregory backed the truck into the barn on the property so that they could unload its contents, including a propane tank with an altered valve, lye, two bags of ammonium nitrate fertilizer, plastic bags, Coleman fuel, and crushed pills in a plastic bag. Gregory then told Callaway to boil water and dump it into a cooler. When Callaway returned to the garage with the water he had boiled, Gregory was pouring the fertilizer through an orange funnel into the altered propane tank. Then Smith handed the lye to Gregory to pour into the tank. Once finished pouring, Gregory started shaking the tank.

Later that day, police received information that Gregory was cooking a batch of methamphetamine at the Callaway property. At three in the afternoon, officers began surveillance of the property. A few hours later, three officers went to the residence to ask Callaway some questions about an alleged domestic battery incident involving Callaway and his mother that occurred the prior week. After Callaway answered the door, he permitted the officers to enter the home. Gregory was on a couch in the living room, and during conversation with the officers, Gregory stated that his truck was parked in the barn on the property. While one of the officers was speaking with Callaway, he noticed that Callaway had something in his pocket. The officer inquired about the contents of Callaway's pockets to which Callaway responded by pulling out a couple of knives and a paper towel. The paper towel field-tested positive for methamphetamine.

After the result of the field test, one of the officers, Detective Shane McHenry, left the premises to obtain a search warrant for the property. After obtaining the warrant and having it signed by a local judge at her home, Detective McHenry returned to the Callaway residence at approximately 10:00 p.m. The warrant was executed thereafter.

During the search of the barn and surrounding property, the police recovered two fifty-pound bags of ammonium nitrate fertilizer (one opened and one unopened), two bottles of drain clog remover (lye), a bottle of Liquid Fire, two containers of camp fuel, an empty blister packet for pseudoephedrine pills, a can of acetone, a propane tank with an altered valve covered with a brown sludge, an orange filter with blue residue, a cooler, coffee filters, paper towels, a Kroger receipt for Energizer batteries and paper towels, and several other items. A bucket containing liquid was also found, and the liquid tested positive for methamphetamine and pseudoephedrine.

On November 20, 2006, the State charged Gregory with Dealing Methamphetamine, as a Class B felony, and Conspiracy to Deal Methamphetamine, as a Class B felony. Gregory filed a motion to suppress the evidence recovered from the barn, alleging that the search of the Callaway property was executed before the warrant had been obtained. The motion, supporting memorandum, and the State's response made no mention of the issue of whether Gregory had a legitimate expectation of privacy in the premises searched in order to challenge the search. After a hearing, the trial court denied the motion.

During the trial, Gregory objected to the admission of the evidence obtained in the search of the Callaway property on the same grounds asserted in his motion to suppress. During the sidebar on the objection, the State reiterated its argument asserted at the pretrial hearing and added the argument that Gregory did not have standing to challenge the search. The trial court noted that the lack of standing argument strengthened the State's argument and permitted Gregory by way of counsel to respond with any evidence that would demonstrate that Gregory had a possessory interest in the area or items searched other than being a casual visitor to the Callaway residence. Gregory's counsel replied that there was no such evidence. The trial court overruled the objection and admitted the evidence citing its prior reasoning for denying Gregory's motion to suppress as well as the State's argument of Gregory's lack of standing.

After a jury trial, Gregory was found guilty as charged. Due to double jeopardy concerns, the trial court "merged" the judgment as to conspiracy to deal methamphetamine into the first count for dealing. In sentencing Gregory, the trial court found his criminal history, lack of remorse, and the fact that Gregory committed this offense while out on bond for a similar charge in Union County as aggravating factors. The trial court considered Gregory's claim that imprisonment could pose a hardship on his two children, but declined to find it significant. The trial court sentenced Gregory to twenty years imprisonment. Gregory now appeals.

Discussion and Decision

I. Double Jeopardy

Here, the trial court entered judgments of conviction for both counts. However, the trial court noted in sentencing that due to double jeopardy concerns it would "merge" the conspiracy judgment into the conviction for dealing. App. 12. A trial court's act of merging, without also vacating the conviction, is not sufficient to cure a double jeopardy violation.³ A double jeopardy violation occurs when judgments of conviction are entered and cannot be remedied by the "practical effect" of concurrent sentences or by merger after conviction has been entered. Morrison v. State, 824 N.E.2d 734, 741-42 (Ind.Ct.App. 2005), trans. denied. We therefore remand this cause to the trial court with an order to vacate Gregory's conviction for conspiracy to deal methamphetamine.

II. Admissibility of Evidence

First, Gregory contends that the trial court erred in admitting the evidence recovered in the search of the home and adjacent barn that violated his Fourth Amendment⁴ rights because the search warrant was invalid. The State counters that Gregory does not have standing to challenge the search because he did not have a legitimate expectation of privacy in the areas searched, because Gregory did not have any possessory interest in the premises searched. Gregory responds that the State waived the issue of standing because it did not raise it at the motion to suppress hearing.

A trial court has a broad discretion in ruling on the admissibility of the evidence. Scott v. State, 855 N.E.2d 1068, 1071 (Ind.Ct.App.2006). We will only reverse a trial court's ruling on the admissibility of evidence when the trial court has abused its discretion. Id. A trial court abuses its discretion when its decision is clearly against the logic and effect of the facts and circumstances before the court. Id.

Under the Fourth Amendment, an individual's right against unreasonable searches and seizures is personal. Best v. State, 821 N.E.2d 419, 424 (Ind.Ct.App. 2005), trans. denied. To challenge a search, a defendant must have a legitimate expectation of privacy in the place searched. Id. When the constitutionality of a search is challenged, a defendant has the burden of demonstrating a legitimate expectation of privacy in the premises searched. Matson v. State, 844 N.E.2d 566, 570 (Ind.Ct.App.2006), trans. denied. However, where the state has failed to make any trial court challenge as to whether the defendant has a legitimate expectation of privacy, the state may not raise the issue for the first time one appeal. Armour v. State, 762 N.E.2d 208, 213 (Ind.Ct.App.2002), trans. denied.

Here at the motion to suppress hearing, both the State and Gregory failed to address whether Gregory had a legitimate expectation of privacy in the Callaway property searched. However, the State did raise the issue of whether Gregory had standing to challenge the search when Gregory objected to the admission of the evidence at trial. "[A] ruling on a pretrial motion to suppress is not intended to serve as the final...