Harrison v. State

32 N.E.3d 240

Brian L. HARRISON, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 74A01–1407–CR–328.

Court of Appeals of Indiana.

April 21, 2015.

Steven E. Ripstra, Ripstra Law Office, Jasper, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorney for Appellee.

Opinion

MATHIAS, Judge.

[1] Brian Lee Harrison (“Harrison”) was convicted in Spencer Circuit Court of Class B felony dealing in methamphetamine, Class D felony illegal possession of anhydrous ammonia, Class D felony possession of chemical reagents or precursors with the intent to manufacture methamphetamine, and Class A misdemeanor possession of paraphernalia. Harrison also admitted to being an habitual offender and was sentenced to an aggregate term of thirteen years of incarceration. Harrison appeals and presents seven issues, which we reorder and restate as:

I. Whether the State presented sufficient evidence to support Harrison's convictions;

II. Whether Harrison's convictions for possession of ammonia and possession of precursors are lesser-included offenses of the greater offense of manufacturing methamphetamine;

III. Whether the trial court abused its discretion in admitting into evidence information from a mobile phone the police seized from Harrison's car;

IV. Whether the trial court abused its discretion in refusing to give Harrison's proffered jury instruction on an alibi defense and in instructing the jury with regard to the charged offense of possession of precursors;

V. Whether the trial court abused its discretion by admitting evidence regarding certain telephone calls, one of which was made by Harrison while he was in jail;

VI. Whether the trial court abused its discretion in permitting the prosecuting attorney to read language from a published opinion of this court during the State's closing argument; and

VII. Whether the trial court abused its discretion when it admitted evidence of Harrison's nickname, “Bam Bam.”

[2] We reverse Harrison's convictions for possession of anhydrous ammonia and possession of precursors as they constitute lesser-included offenses of the greater offense of manufacturing methamphetamine but affirm Harrison's convictions for manufacturing methamphetamine and possession of paraphernalia.

Facts and Procedural History

[3] On January 28, 2013, Spencer County Sheriff's Deputy Jim Taggart (“Deputy Taggart”) was driving his patrol car on a county road when he saw two vehicles, a black Pontiac and a white pickup truck, stopped in the road. The two vehicles drew Deputy Taggart's attention, as he thought that the truck may have collided with the rear-end of the Pontiac. Instead, the pickup drove away and turned right at a nearby stop sign. Deputy Taggart drove past the Pontiac and observed it in his rear-view mirror. As he did so, the Pontiac quickly accelerated in reverse up a hill. The driver of the Pontiac lost control of the car, drove it into a ditch, and hit a log, which bounced the car into the air. The car then came to a stop in the ditch. Deputy Taggart turned his patrol car around to approach the crashed Pontiac.

[4] A passenger in the car, later identified as Jason Gee (“Gee”), exited the car, ran across the road, and disappeared into a wooded area. The driver of the car, later identified as Harrison, managed to climb out of the driver's side door, which was wedged against the ditch, and also fled into the wooded area.

[5] Deputy Taggart exited his patrol car, walked toward the Pontiac, and saw smoke coming from the front passenger floorboard. He then saw a small fire located next to a tank in the car and a clear container with a white powder inside. Deputy Taggart put out the fire. He then noticed that a mobile phone, located in the console, had been ringing. Deputy Taggart opened the phone and read to dispatch the numbers that had been calling the phone in the car. Deputy Taggart also looked through the text messages on the phone.

[6] Deputy Taggart then began to search the vehicle, where he found a bag containing a scale and a leather wallet. The wallet contained an Indiana identification card, an Indiana Department of Correction card, a debit card, a casino card, and a resort card, all of which identified Harrison. A spoon and cigarette rolling papers were also found in the car.

[7] Indiana State Police Trooper Ted Clamme (“Trooper Clamme”) of the clandestine laboratory clean-up team was dispatched to the scene. Trooper Clamme described what he saw in the vehicle as a “very early stage” methamphetamine lab, using the “Nazi method.” Tr. P. 209. Trooper Clamme found in the car several items used in the manufacture of methamphetamine, including: 24.31 grams of pseudoephedrine, crushed pseudoephedrine pill powder, a tank of ammonia, a bottle of “Heet” (an isopropyl alcohol-based antifreeze agent), syringes, a glass jar, plastic tubing, and a measuring spoon. Trooper Clamme explained that every item needed for the manufacture of methamphetamine was present, save lithium. However, he explained that the lithium could have been destroyed in the fire.

[8] In the meantime, Kati Richard (“Richard”), the 911 director for the Spencer County Sheriff's Department, was at home when she received a telephone call from dispatch to warn her that her house was near the area where the suspects in the Pontiac had fled. Shortly thereafter, Richard's dog began to bark; she looked outside and saw Harrison sitting in the woods near her house.¹ Richard then called dispatch to tell them she had found one of the potential suspects. However, Harrison was not apprehended at that time.

[9] Gee was taken into custody later that day. Harrison was arrested at a later date and eventually charged with Class B felony manufacture of methamphetamine, Class D felony illegal possession of anhydrous ammonia, Class D felony possession of precursors with intent to manufacture methamphetamine, and Class A misdemeanor possession of paraphernalia. The State also alleged that Harrison was an habitual offender.

[10] At trial, the State introduced into evidence, over Harrison's objection, a recorded telephone conversation he had with Gee while in jail. In the call, Harrison stated, “I'm kind of hurt, man but—got f* *king ammonia. I think I have ammonia in my lungs.” Appellant's App. p. 243. Harrison was also occasionally referred to at trial by his nickname, “Bam Bam.” Tr. pp. 7, 9, 152, 166–68, 170–71. Harrison objected to some of these references but not all. See Tr. pp. 152, 170–71. At the close of the evidence, the trial court read the pattern jury instruction regarding the charged crime of possession of precursors, to which Harrison objected. The trial court also refused to read to the jury Harrison's tendered alibi instruction. During the State's closing argument, the trial court overruled Harrison's objection to the prosecuting attorney reading a portion of this court's opinion in Dawson v. State, 786 N.E.2d 742 (Ind.Ct.App.2003), which dealt with the definition of manufacturing methamphetamine. The jury found Harrison guilty as charged, and the trial court subsequently sentenced Harrison to an aggregate term of thirteen years of incarceration.² Harrison now appeals.

I. Sufficiency of the Evidence

[11] Harrison first claims that the evidence is insufficient to support his conviction for manufacturing methamphetamine.³ When reviewing a claim that the evidence is insufficient to support a conviction, we neither reweigh the evidence nor judge the credibility of the witnesses; instead, we respect the exclusive province of the trier of fact to weigh any conflicting evidence. McHenry v. State, 820 N.E.2d 124, 126 (Ind.2005). We consider only the probative evidence supporting the verdict and any reasonable inferences which may be drawn from this evidence. Id. We will affirm if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Id.

A. Manufacturing Methamphetamine

[12] The statute defining the crime of manufacturing methamphetamine provides in relevant part that “(a) A person who ... knowingly or intentionally ... manufactures ... methamphetamine, pure or adulterated ... commits dealing in methamphetamine, a Class B felony[.]” Ind.Code § 35–48–4–1.1(a).⁴

[13] Harrison claims that he was never found in actual possession of any of the items found in the car and that the State therefore was required to prove constructive possession. Harrison, however, was not charged with or convicted of possession of methamphetamine under section 35–48–4–1.1(a)(2) ; he was charged with and convicted of manufacturing methamphetamine under section 35–48–4–1.1(a)(1). See Appellant's App. p. 13 (“Harrison did knowingly or intentionally manufacture methamphetamine[.]”); Appellant's App. p. 216 (final instruction setting forth elements of manufacturing methamphetamine).

[14] Indiana Code Section 35–48–1–18 defines “manufacture” as:

the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container.

No statutory requirement states that the manufacturing process must be completed or that a final product must be present before it applies. Vanzyll v. State, 978 N.E.2d 511, 518 (Ind.Ct.App.2012) ; Bush v. State, 772 N.E.2d 1020, 1022–23 (Ind.Ct.App.2002).

[15] Here, Harrison's mobile phone, wallet, and identification were located inside the car. The police found in the car a total of 24.31 grams of pseudoephedrine, crushed pseudoephedrine pill powder, a tank of ammonia, a bottle of “Heet,” syringes, a glass jar, plastic tubing, and a measuring spoon, constituting every...