Wilhelmus v. State

• Decision Date: 23 March 2005
• Docket Number: No. 74A01-0405-CR-221.,74A01-0405-CR-221.
• Parties: John E. WILHELMUS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

824 N.E.2d 405

John E. WILHELMUS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 74A01-0405-CR-221.

Court of Appeals of Indiana.

March 23, 2005.

John Burley Scales, Frank R. Hahn, Law Office of John Burley Scales, Boonville, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Stephen Tesmer, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

CRONE, Judge.

Case Summary

John Wilhelmus appeals his convictions and sentences for attempted dealing in methamphetamine¹ and dealing in methamphetamine,² both class A felonies. We affirm.

Issues

Wilhelmus presents three issues for our review, which we restate as:

I. Whether the trial court properly granted the State's Indiana Criminal Rule 4(D) motion to continue the jury trial II. Whether the trial court abused its discretion under Indiana Evidence Rule 404(b) by admitting evidence of Wilhelmus's prior arrest; and

III. Whether the trial court violated Indiana Code Section 35-38-1-6 by entering judgments of conviction and sentences on both attempting to manufacture and manufacturing methamphetamine.

Facts and Procedural History

The facts most favorable to the convictions indicate that on December 11, 2003, Tony Weaver's home security company called the Spencer County Sheriff's Department to report a possible breaking and entering at Weaver's property. Specifically, a motion sensor on the east doors of Weaver's barn had been activated. James Taggart, a Spencer County deputy sheriff, was dispatched to the scene where he began to check the perimeter of the barn and heard noise from within. As he continued around the barn, Taggart heard a door open and saw Wilhelmus exit the barn. Upon learning that an alarm had been tripped, Wilhelmus stated that he must have activated the alarm. He further explained that he was authorized to be in Weaver's barn and showed Taggart his access card for the alarm system. Wilhelmus also volunteered that no one else was around. Taggart then asked Wilhelmus for permission to check around the barn to ensure that everything was okay. Wilhelmus replied, "Sure." Tr. at 38.

Taggart entered the barn and noticed a light coming from a loft area reached by two flights of stairs. Upon climbing the stairs, Taggart discovered an operating methamphetamine laboratory. Taggart then exited the barn, saw Wilhelmus smoking a cigarette, and placed him under arrest. Additional officers arrived on the scene to investigate. Shortly thereafter, Weaver and his girlfriend, Jana³ Small, returned to the home. Police arrested them as well.

A search warrant was obtained. Within the barn, police found methamphetamine as well as chemical solvents containing methamphetamine still in the manufacturing process. Just a sampling of the items included: ephedrine/pseudoephedrine, anhydrous ammonia, lithium, toluene, muriatic acid, sulfuric acid, ether, naphtha fuel, sodium chloride, glassware, plastic tubing, coffee filters, paper towels, painted propane tanks, funnels, air pumps, rubber gloves, battery strippings, battery hulls, blister packs, and miscellaneous tools.⁴ See Appellant's App. at 455. Due to the sheer size of the laboratory and the substantial amount of chemicals, the Indiana State Police lab team responded to collect evidence and dispose of hazardous materials. Daniel Colbert, a criminal analyst with the state lab, arrived and observed that of the more than four hundred methamphetamine labs that he had investigated, it was either the largest or second largest operation. A later search of a safe within Weaver's home uncovered numerous documents, items, and a handgun belonging to Wilhelmus.

On January 7, 2004, the State charged Wilhelmus with conspiracy to commit dealing methamphetamine, a class A felony; possession of pseudoephedrine, a class D felony; illegal possession of anhydrous ammonia, a class D felony; possession of chemical reagents, a class D felony; possession of paraphernalia, a class A misdemeanor; maintaining a common nuisance, a class D felony; and possession of marijuana, a class A misdemeanor. Also on that date, the court granted Wilhelmus's previously filed⁵ motion for a speedy trial and set a jury trial date of March 9, 2004. On March 5, 2004, the State filed a Criminal Rule 4(D) motion requesting a continuance. Appellant's App. at 324-30.

On March 8, 2004, Wilhelmus filed a written objection to the State's March 5 continuance motion, and the State filed its "Supplemental Filing in Support of State's Motion for Continuance." Id. at 314-17; 319-23. On that same day, the court issued an order stating: "After having read and considered the flurry of recent filings in this cause, the court finds that the State is entitled to a short continuance under CR 4(D). The Court reassigns trial by jury for April 12, 2004 at 9:00 A.M." Id. at 313. Also on March 8, 2004, the State amended the information by dismissing the six counts and charging Wilhelmus with the following two class A felonies: attempted dealing (manufacturing) methamphetamine in an amount of more than three grams, and dealing (manufacturing) methamphetamine in an amount of more than three grams. On March 9, 2004, Wilhelmus filed a written objection to a trial setting beyond the seventy-day Criminal Rule 4(B)(1) limit. On March 15, 2004, Wilhelmus filed a motion to dismiss for delay in trial.

Additional hearings were held on various matters before the three-day trial began. On April 14, 2004, a jury convicted Wilhelmus on both counts. On May 13, 2004, the court ordered thirty-year sentences on each count to be served concurrently.

Discussion and Decision

I. Criminal Rule 4(D)

Wilhelmus contends that the trial court took no evidence before granting the State's motion for a Criminal Rule 4(D) continuance and that the record contains "no evidence that could have `satisfied' the trial court that the State's motion had merit." Appellant's Br. at 8. To the contrary, Wilhelmus asserts that the "evidence identified by the State was actually available by the time the motion was granted, or clearly would not be available (the encrypted computer files) within the short delay that the State sought." Id.

When, as here, a defendant moves for a speedy trial, he invokes the procedures and deadlines of Criminal Rule 4(B)(1), which provides in relevant part:

If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar.

Our supreme court has noted that "[t]he purpose served by Crim. R. 4(B) is to prevent a defendant from being detained in jail for more than 70 days after requesting an early trial." Williams v. State, 631 N.E.2d 485, 486 (Ind.1994). However, Criminal Rule 4(D) provides for an extension of this seventy-day period. See Griffin v. State, 695 N.E.2d 1010, 1013 (Ind.Ct.App.1998). Specifically,

If when application is made for discharge of a defendant under this rule, the court be satisfied that there is evidence for the state, which cannot then be had, that reasonable effort has been made to procure the same and there is just ground to believe that such evidence can be had within ninety (90) days, the cause may be continued, and the prisoner remanded or admitted to bail; and if he be not brought to trial by the state within such additional ninety (90) days, he shall then be discharged.

Ind.Crim. Rule 4(D). Moreover,

[a]ny exigent circumstances may warrant a reasonable delay beyond the limitations of Crim. R. 4, due deference being given to the defendant's speedy trial rights under the rule. The reasonableness of such delay must be judged in the context of the particular case, and the decision of the trial judge will not be disturbed except for an abuse of discretion. The purpose of Crim. R. 4(B) is to assure a speedy trial. This purpose is well served if the State must bring a defendant to trial within seventy days or show compelling reasons for the failure to do so. The rule was designed to assure criminal defendants speedy trials, not to provide them with a technical means of avoiding trial.

Smith v. State, 802 N.E.2d 948, 951 (Ind. Ct.App.2004); see also Lockhart v. State, 671 N.E.2d 893, 897 (Ind.Ct.App.1996) (noting abuse of discretion standard).

The State filed its request for Criminal Rule 4(D) continuance on March 5, 2004, the Friday before the trial was scheduled to begin on March 9, a Tuesday. In its lengthy March 5 motion, the State detailed the following reasons for its request:

1. A computer seized from Weaver's residence and believed to contain evidence of Wilhelmus's participation in the crimes had been sent to an expert for analysis. The expert recently notified the State that it had been unable to decrypt certain files on the computer despite four days of continuous attempt. The State could not locate and hire another expert and obtain the results prior to the March 9 trial date.

2. Although the State Lab was notified of the trial date in a timely manner, it had not yet completed the analysis and testing of the chemicals and compounds from the vast methamphetamine lab.

3. On March 1, 2004, the State discovered the necessity of Jail Commander William Coy's testimony; upon subpoenaing him two days later, the State learned that he would be in Florida during the week of trial. His attached affidavit confirmed this fact.

4. The State also learned within forty-eight hours prior to filing its request that key witness Daniel Colbert would not be able to testify if the trial were postponed just one week as he would be testifying in another trial and in training.

5. That same week, the State learned of inappropriate

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