Speer v. State

• Decision Date: 31 May 2013
• Docket Number: No. 79A02–1209–CR–748.,79A02–1209–CR–748.
• Citation: 995 N.E.2d 1
• Parties: Kevin SPEER, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

995 N.E.2d 1

Kevin SPEER, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 79A02–1209–CR–748.

Court of Appeals of Indiana.

May 31, 2013.

David T.A. Mattingly, Mattingly Legal, LLC, Lafayette, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MAY, Judge.

Kevin Speer appeals his convictions of and sentences for Class B felony conspiracy to manufacture methamphetamine,¹ Class B felony manufacturing methamphetamine,² Class D felony possession of methamphetamine,³ Class A misdemeanor possession of paraphernalia, ⁴ Class D felony possession of two more chemical reagents or precursors with the intent to manufacture a controlled substance,⁵ and Class D felony maintaining a common nuisance.⁶ He presents six issues for our review:

1. Whether the evidence from Speer's traffic stop was obtained in violation of his rights under the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution;

2. Whether the evidence obtained as a result of the search warrant was seized illegally;

3. Whether the trial court abused its discretion when it denied Speer's motion for mistrial;

4. Whether the State presented sufficient evidence Speer committed the crimes with which he was charged;

5. Whether Speer's convictions of Class B felony manufacturing a methamphetamine and Class D felony possession of two more chemical reagents or precursors with the intent to manufacture a controlled substance subject Speer to double jeopardy because the State used the same evidence to prove Speer committed both crimes; and

6. Whether Speer's sentence was inappropriate based on his character and the nature of the offense.

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

FACTS AND PROCEDURAL HISTORY

On September 25, 2011, Detective Chad Robinson of the Lafayette Police Department was conducting surveillance at the residence of David Balsar, who was suspected of participation in drug activity. Around 10:00 p.m., a red truck with an attached trailer left the residence. Detective Robinson followed the vehicle and noticed the license plates on both the trailer and the truck were partially obscured. He initiated a traffic stop.

Speer who was driving the vehicle and Jason Ferguson was his passenger. Detective Robinson discovered the plates on the truck were registered to a different vehicle. Back-up officers arrived at the scene, and Detective Robinson told Speer he would be conducting a dog sniff investigation of the vehicle. The dog alerted for the presence of narcotics near the driver's door.

Detective Robinson searched the cab of the truck and found a black pouch containing syringes, methamphetamine, and digital scales; a bag of syringes; two glass smoking pipes; and a device for smoking marijuana. He also found plastic aquarium tubing, more syringes, a funnel, measuring cups, Heet starting fluid, lithium batteries, coffee filters, and pseudoephedrine pills. The officers on scene recognized an odor consistent with that of a methamphetamine manufacture lab. Detective Robinson filed an affidavit in support of a search warrant, which was issued, and the rest of the truck and trailer were searched. The subsequent search yielded additional items that could be used to manufacture methamphetamine.

The State charged Speer with Class B felony conspiracy to manufacture methamphetamine, Class B felony manufacturing a methamphetamine, Class D felony possession of methamphetamine, Class A misdemeanor possession of paraphernalia, Class D felony possession of two or more chemical reagents or precursors with the intent to manufacture a controlled substance, and Class D felony maintaining a common nuisance. The State also alleged Speer was an habitual substance offender. After a jury trial, Speer was convicted on all counts and found to be an habitual substance offender. The trial court sentenced Speer to an aggregate sentence of thirty-three and one-half years incarcerated.

DISCUSSION AND DECISION

1. Admission of Evidence

Speer did not seek interlocutory review of the denial of his motion to suppress but instead appeals following trial. This issue is therefore “appropriately framed as whether the trial court abused its discretion by admitting the evidence at trial.” Lundquist v. State, 834 N.E.2d 1061, 1067 (Ind.Ct.App.2005). Our review of rulings on the admissibility of evidence is essentially the same whether the challenge is made by a pre-trial motion to suppress or by trial objection. Id. We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court's ruling. Id. However, we must also consider the uncontested evidence favorable to the defendant. Id.

Speer argues the search of his vehicle violated the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. Although the Fourth Amendment and Article 1, Section 11 are textually similar, each must be separately analyzed. State v. Washington, 898 N.E.2d 1200, 1205–06 (Ind.2008), reh'g denied.

a. Fourth Amendment

Speer argues Detective Robinson did not have reasonable suspicion to stop his vehicle, and thus the ensuing search violated Speer's Fourth Amendment rights. We disagree.

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Under the Fourth Amendment, a police officer may stop a vehicle if he has reasonable suspicion a traffic law has been violated or other criminal activity is taking place. Meredith v. State, 906 N.E.2d 867, 869 (Ind.2009). “An officer's decision to stop a vehicle is valid so long as his on-the-spot evaluation reasonably suggests that lawbreaking occurred. This discretion, however, does not extend to an officer's mistaken belief about what constitutes a violation as a matter of law.” Id. at 870.

Detective Robinson testified he stopped Speer's vehicle because its license plate was not properly displayed. Indiana law requires:

(a) License plates shall be displayed ...

(1) For a ... trailer ... upon the rear of the vehicle ...

* * * * * *

(3) For every other vehicle, upon the rear of the vehicle ...

* * * * * *

(b) A license plate shall be securely fastened, in a horizontal position, to the vehicle for which the plate is issued:

(1) to prevent the plate from swinging;

(2) at a height of at least twelve (12) inches from the ground, measuring from the bottom of the license plate;

(3) in a place and position that are clearly visible;

(4) maintained free from foreign materials and in a condition to be clearly legible; and

(5) not obstructed or obscured by tires, bumpers, accessories, or other opaque objects.

Ind.Code § 9–18–2–26. Detective Robinson testified he “was unable to read the, clearly read the plate that was attached to the trailer. It was partially obstructed, uh, either by a bumper or the rear light.” (Tr. at 4–5.) Detective Robinson's testimony demonstrates he had a reasonable suspicion Speer had committed a traffic violation pursuant to Ind.Code § 9–18–2–26(b)(5). Speer's arguments to the contrary are invitations to reweigh the evidence and judge the credibility of witnesses, which we cannot do. See Lundquist, 834 N.E.2d at 1067 (appellate court does not reweigh evidence or assess credibility of witnesses).

b. Article 1, Section 11

Article 1, Section 11 provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

In resolving challenges involving this section, we consider the circumstances presented in each case to determine whether the police behavior was reasonable. Saffold v. State, 938 N.E.2d 837, 840 (Ind.Ct.App.2010). The State has the burden of showing the intrusion was reasonable under the totality of the circumstances. Id. In determining reasonableness under Section 11, we recognize Indiana citizens are concerned not only with personal privacy but also with safety, security, and protection from crime. Id.

Under Section 11, a police officer may stop a vehicle when he has reasonable suspicion the motorist has committed a traffic violation. Mitchell v. State, 745 N.E.2d 775, 787 (Ind.2001). Detective Robinson testified the license plate on Speer's trailer was not properly displayed pursuant to Ind.Code § 9–18–2–26(b)(5), and thus he had reasonable suspicion to stop Speer's truck. Speer's arguments to the contrary are invitations for us to reweigh the evidence, which we cannot do. See Lundquist, 834 N.E.2d at 1067 (appellate court does not reweigh evidence or assess credibility of witnesses).⁷

2. Search Warrant

Speer argues the trial court abused its discretion when it admitted evidence found as a result of the search warrant because the affidavit on which the search warrant was based was defective. Speer did not object to the admission of the evidence found as a result of the search warrant. “Failure to object to the admission of evidence at trial normally results in waiver and precludes appellate review unless its admission constitutes fundamental error.” Whatley v. State, 908 N.E.2d 276, 280 (Ind.Ct.App.2009), trans. denied. “The standard for fundamental error is whether the error was so prejudicial to the rights of the defendant that a fair trial was impossible.” Boatright v. State, 759 N.E.2d 1038, 1042 (Ind.2001).

Pursuant to Ind.Code § 35–33–5–2, before a warrant can be issued, an affidavit...