Lainhart v. State, 24A04–1105–CR–299.

• Decision Date: 29 June 2012
• Docket Number: No. 24A04–1105–CR–299.,24A04–1105–CR–299.
• Parties: Kenneth A. LAINHART, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

970 N.E.2d 269

Kenneth A. LAINHART, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 24A04–1105–CR–299.

Court of Appeals of Indiana.

June 29, 2012.

Appeal from the Franklin Circuit Court; The Honorable J. Steven Cox, Judge; Cause No. 24C01–1008–FB–46.

Kimberly A. Jackson, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

BROWN, Judge.

Kenneth Lainhart appeals his convictions and sentence for conspiracy to manufacture methamphetamine as a class B felony ¹ 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

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 pseudoephedrme for Lainhart using Lainhart's money. Marshall understood that the pseudoephedrme 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 Beeson ⁴ 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 pseudoephedrme 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. 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 pseudoephedrme logs at various pharmacies for the names of Lainhart and Peggy Beeson. The logs indicated that Lainhart purchased pseudoephedrme 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 pseudoephedrme 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 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 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 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.⁸Id. 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 remained...