Patton v. State

32 N.E.3d 285 (Table)

Dwight PATTON, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 60A01–1403–CR–115.

Court of Appeals of Indiana.

April 29, 2015.

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

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

MEMORANDUM DECISION

PYLE, Judge.

Statement of the Case

[1] Appellant/Defendant, Dwight Patton (“Patton”), appeals his conviction for Class D felony possession of marijuana in an amount greater than thirty (30) grams.¹ His conviction was based on marijuana seized from his barn, a patch beside his barn, and a wagon beside his house. On appeal, he does not challenge the trial court's admission of the marijuana found in the patch or wagon but argues that the trial court abused its discretion in admitting the marijuana seized from his barn because the seizure resulted from a search that he claims violated his constitutional rights under the United States and Indiana Constitutions. He also argues that the State did not produce sufficient evidence that the weight of the marijuana supporting his conviction exceeded thirty (30) grams, as was required to convict him of a Class D felony rather than a Class A misdemeanor. We conclude that the search of Patton's barn and seizure of the marijuana did not violate Patton's rights under the United States Constitution because there were exigent circumstances and the marijuana was in plain view. The search and seizure also did not violate the Indiana Constitution because the State troopers' actions were reasonable. Finally, we conclude that there was sufficient evidence that Patton possessed more than thirty (30) grams of marijuana.

[2] We affirm.

Issues

[3] 1. Whether the trial court abused its discretion in admitting evidence.

[4] 2. Whether the State produced sufficient evidence that Patton possessed more than thirty (30) grams of marijuana.

Facts

[5] On July 14, 2011, Indiana State Police (“ISP”) troopers Tim Cummins (“Trooper Cummins”), Kurt Feather (“Trooper Feather”), Jason Kempf (“Trooper Kempf”), and Tarry Annick (“Trooper Annick”), who are troopers in the ISP Marijuana Eradication Program, flew over Central Indiana in a helicopter trying to spot outdoor marijuana cultivation. They were heading to Hulman Field in Terre Haute to refuel their helicopter when they passed over property that Patton was renting in Owen County (“Patton's Property”).² On the property were a single-story residence, a large vegetable garden to the west of the residence, and a dilapidated barn to the west of the garden. The barn was about fifty yards from the road and 100 yards from the residence.³ Trooper Feather thought that he saw marijuana plants next to the barn and told the other troopers that he wanted to return to the property for further investigation after refueling.

[6] Accordingly, the troopers flew back over the property an hour or two later after refueling. Trooper Cummins observed that there was indeed a patch containing what appeared to be rows of marijuana plants behind Patton's barn. He estimated that there were thirty plants in total. The patch was also partially bordered by eight to twelve foot tall horseweeds, which resemble marijuana.⁴ Trooper Kempf took aerial photographs of the property, including the barn and the marijuana patch.

[7] It was the troopers' normal procedure to mark the locations of marijuana they discovered on a handheld GPS unit so that they could follow up at another time and avoid landing the helicopter. However, they also had a policy that if they observed a person on a property where they had discovered marijuana, they would investigate immediately to avoid potential destruction of evidence. On their second pass around Patton's Property, the troopers noticed a man near the garden. As a result, they decided to land their helicopter and investigate immediately. While they were trying to find somewhere to land, they saw the man, whom they later identified as Patton, in the marijuana patch pulling up the marijuana plants.

[8] Approximately three to four minutes later, the troopers landed directly across the road on the other side of the barn. Trooper Cummins ran to the barn and found Patton inside on his hands and knees. He made Patton stand and noticed that Patton was “[v]ery dirty”, “very hot, ... profusely sweating, [and] ... had mud starting to drip down him.” (Tr. 226). At his request, Patton left the barn and sat on a cinder block in the yard.

[9] Meanwhile, Trooper Feathers ran to the marijuana patch and observed that the dirt in the patch had been disturbed, and only two of the marijuana plants remained. When he told Trooper Kempf that most of the plants were gone, they both attempted to search for the plants in the horseweeds surrounding the marijuana patch. When they did not find any of the plants there, Trooper Cummins told Trooper Kempf about finding Patton in the barn, and Trooper Kempf went to that spot in the barn. He got on his hands and knees—the position in which Trooper Cummins had found Patton—and spotted some marijuana plants through a hole in the barn's floor. He could not reach the plants from the inside of the barn, so he walked outside and was able to retrieve them through another hole on the outside of the barn. In total, he retrieved ten marijuana plants. He observed that they appeared to be “freshly pulled up” and still had dirt and roots attached. (Tr. 330). All of the plants were immature.⁵

[10] While the troopers were at the scene, they searched the immediate area around the marijuana patch, and Patton's wife gave consent for them to search the house. Although they did not find any plants in the house, they did discover a wagon with thirty-eight starter marijuana plants in Styrofoam cups by the backside of the garden, near the house.⁶ Patton talked to Trooper Cummins and admitted that the starter plants were his, although he denied having anything to do with the marijuana plants in the patch and barn. Before leaving, Trooper Feathers went back up into the helicopter to see if he could find any of the remaining eighteen missing plants from the air, but he did not have any success.

[11] Subsequently, Haley Newton (“Newton”), a forensic scientist with the ISP Tab, analyzed the plants obtained from Patton's Property and confirmed they were indeed marijuana plants. She found that the marijuana recovered from the barn and patch weighed 20.47 grams, and the starter marijuana plants from the wagon weighed 14.88 grams. In total, the plant material weighed 35.35 grams.

[12] Thereafter, on July 15, 2011, the State charged Patton with two counts of Class D felony possession of marijuana in an amount over thirty (30) grams, including one count under INDIANA CODE § 35–48–4–11(1) for possessing it and one count under INDIANA CODE § 35–48–11(2) for growing it.⁷ On June 18, 2012, Patton filed a motion to suppress the evidence of the marijuana.⁸ He filed a second motion to suppress on October 3, 2013, in which he argued that the troopers had violated his federal and state constitutional rights to be free from unreasonable search and seizure and that, accordingly, the trial court should suppress the evidence seized from the search of his barn. Notably, he did not argue that the trial court should suppress the evidence of the marijuana found in the patch or the wagon.

[13] On October 7, 2013, the trial court held a hearing on Patton's motion to suppress, which it ultimately denied. The trial court then held a jury trial on October 9–11, 2013. On the first day of the trial, Patton made a motion in limine, again requesting the trial court to suppress the barn marijuana evidence. The trial court denied the motion but showed Patton's continuing objection to any admission of the marijuana into evidence. At trial, the trial court admitted all the marijuana, and at the conclusion of the trial, the jury found Patton guilty as charged. Subsequently, the trial court held a sentencing hearing on November 12, 2013. It merged Patton's convictions and sentenced him to 1,095 days, with 180 days executed on home detention and the rest suspended to probation. Patton now appeals.⁹

Decision

[14] On appeal, Patton argues that the trial court abused its discretion in admitting the evidence of the marijuana seized from his barn because the troopers' search of the barn was unconstitutional under both the United States and Indiana constitutions. Alternately, he asserts that the State did not produce sufficient evidence that the marijuana he possessed weighed more than thirty (30) grams, as was required to convict him of a Class D felony as opposed to a Class A misdemeanor. We will address each of these arguments in turn.

1. Constitutional Claims

[15] First we will consider the trial court's admission of the evidence of the marijuana seized from Patton's barn. Because Patton did not seek an interlocutory appeal of his motion to suppress evidence, we consider the trial court's admission of the evidence at trial rather than its denial of his motion to suppress. Carpenter v. State, 18 N.E.3d 998, 1001 (Ind.2014). We review a trial court's decision to admit evidence for an abuse of discretion, which we will find if the court's decision is clearly against the logic and effect of the facts and circumstances before it, and the error affects a party's substantial rights. Id. In making this determination, we do not reweigh the evidence, and we consider conflicting evidence in the light most favorable to the trial court. Weddle v. State, 989 N.E.2d 371, 375 (Ind.Ct.App.2013), aff'd on reh'g, trans. denied. We review any questions of law, such as the ultimate determination of the constitutionality of a search and seizure de novo. Carpenter, 18 N.E.3d at 1001.

[16] Patton's admissibility argument is founded on his assertion that the troopers conducted an unconstitutional search of the inside of his barn and that the evidence they discovered as a...