MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                           Dec 10 2015, 8:24 am

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
David W. Stone, IV                                      Gregory F. Zoeller
Anderson, Indiana                                       Attorney General of Indiana
                                                        Richard C. Webster
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Douglas Allen Bergfeld,                                 December 10, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        48A02-1503-CR-157
        v.                                              Appeal from the Madison Circuit
                                                        Court
State of Indiana,                                       The Honorable Jason Childers,
Appellee-Plaintiff.                                     Judge Pro Tem
                                                        Trial Court Cause No.
                                                        48C01-1303-FD-635 & 48C01-
                                                        1309-FD-1733



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1503-CR-157 | December 10, 2015    Page 1 of 8
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Douglas Bergfeld (Bergfeld), appeals the revocation of his

      probation and the imposition of his previously suspended sentences.


[2]   We affirm.


                                                    ISSUE

[3]   Bergfeld raises one issue on appeal, which we restate as follows: Whether the

      trial court abused its discretion by ordering Bergfeld to serve his previously

      suspended sentence after he violated the terms of his probation.


                             FACTS AND PROCEDURAL HISTORY


[4]   On March 24, 2013, Bergfeld was charged under Cause Number 48C01-1303-

      FD-635 (Cause FD-635) with Count I, operating a motor vehicle while

      intoxicated, a Class A misdemeanor, Ind. Code § 9-30-5-2(b) (2013); and Count

      II, operating a motor vehicle while intoxicated with a prior conviction, a Class

      D felony, I.C. § 9-30-5-3 (2013). On September 13, 2013, Bergfeld was charged

      under Cause Number 48C01-1309-FD-1733 (Cause FD-1733) with theft, a

      Class D felony, I.C. § 34-43-4-2 (2013). On May 13, 2012, Cause FD-635 and

      Cause FD-1733 were joined for the purposes of a plea agreement. On the same

      day, Bergfeld entered a guilty plea to Class D felony operating a vehicle while

      intoxicated with a prior conviction in Cause FD-635, and to Class D felony

      theft in Cause FD-1733. On June 9, 2014, pursuant to the plea agreement, in

      Cause FD-635, the trial court sentenced Bergfeld to the Department of

      Correction (DOC), for thirty months, with twenty-four months in home
      Court of Appeals of Indiana | Memorandum Decision 48A02-1503-CR-157 | December 10, 2015   Page 2 of 8
      detention and six months suspended to supervised probation. In Cause FD-

      1733, the trial court sentenced Bergfeld to thirty months, with twelve months in

      home detention and eighteen months suspended to supervised probation. The

      sentences were to be served consecutively.


[5]   On August 1, 2014, the Office of Madison County Home Detention filed a

      probation violation in both Causes, stating that Bergfeld committed a battery

      and had tested positive for alcohol on July 28, 2014, and on July 29, 2014. On

      August 5, 2014, that probation violation was amended to further state that on

      July 31, 2014, and on August 1, 2014, Bergfeld tested positive for alcohol with a

      BAC of .042% and .064%, respectively. On September 8, 2014, the trial court

      determined that Bergfeld had violated the terms of his probation and sanctioned

      him by placing him on Sobrietor, an alcohol monitoring device. On February

      3, 2015, another probation violation was filed claiming that Bergfeld’s Sobrietor

      test results yielded positive alcohol readings on January 4, 2015, and January

      14, 2015. A urine test that was also conducted on January 14, 2015, tested

      positive for alcohol. In addition, the probation violation stated that on January

      14, 2015, Bergfeld had submitted diluted urine for a drug screen, and on

      January 31, 2015, Bergfeld had committed three new offenses—manufacturing

      methamphetamine, maintaining a common nuisance, and possessing chemical

      reagents or precursors.


[6]   At a revocation hearing held on March 2, 2015, when explaining why he had

      tested positive for alcohol in January 2015, Bergfeld stated that he was sick with

      a cold and was taking “Nyquil and some kind of cough syrup.” (Transcript p.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1503-CR-157 | December 10, 2015   Page 3 of 8
      7). Bergfeld denied adulterating his urine for the alcohol screen or committing

      the new offenses.


[7]   The State presented evidence of Bergfeld’s failed Sobrietor test results, as well as

      the laboratory analysis establishing alcohol in Bergfeld’s urine. With respect to

      the alleged new offenses, the State presented evidence that in the early morning

      hours of January 31, 2015, Bergfeld’s son contacted the Anderson Police

      Department reporting that Bergfeld had requested that he buy ephedrine, which

      is used in the manufacturing of methamphetamine. Officer Daron Granger

      (Officer Granger) and another officer were sent to Bergfeld’s home at 703

      Ruddle Avenue in Anderson, Indiana. Officer Granger testified that upon

      entering Bergfeld’s home, he noticed a strong chemical odor associated with the

      manufacturing of methamphetamine. There was an unidentified female and

      another man, referred to as B.J., present in the home. Officer Granger stated

      that he established that Bergfeld and B.J. were the residents. Bergfeld occupied

      one bedroom, while B.J. occupied the middle bedroom. There was a third

      bedroom, but it remained unoccupied. Officer Granger indicated that the living

      room, kitchen, and bathrooms were common areas.


[8]   A further search revealed remnants of a meth lab in the bathroom and in the

      back of the house. A subsequent search by the Madison County Drug Task

      Force led to the recovery of items associated with the manufacturing of

      methamphetamine in the access panel for the bathroom plumbing pipes.

      Officer Granger testified that Bergfeld had at first denied the operation of a

      meth lab but later admitted that he was aware of it; however, Bergfeld denied

      Court of Appeals of Indiana | Memorandum Decision 48A02-1503-CR-157 | December 10, 2015   Page 4 of 8
       any involvement in the manufacturing of methamphetamine. At the conclusion

       of the hearing, the trial court found that Bergfeld had violated his probation for

       testing positive for alcohol on January 4 and January 14, 2015, and for

       committing new criminal offenses on January 31, 2015. Accordingly, the trial

       court revoked Bergfeld’s supervised probation both in Cause FD-635 and FD-

       1733. For Cause FD-635, the trial court ordered Bergfeld to serve the

       remainder of his 910 days in Madison County Work Release. With respect to

       Cause FD-1733, the trial court ordered Bergfeld to serve the rest of his 910 days

       in the DOC. Bergfeld’s sentences were to be served consecutively.


[9]    Bergfeld now appeals. Additional facts will be provided as necessary.


                                  DISCUSSION AND DECISION

[10]   Bergfeld claims that the trial court abused its discretion by revoking his

       probation. It is well established that probation is a favor granted by the State

       and is not a right to which a criminal defendant is entitled. Sparks v. State, 983

       N.E.2d 221, 224 (Ind. Ct. App. 2013). The decision to revoke probation lies

       within the sound discretion of the trial court. Id. Thus, a trial court’s decision

       to revoke probation and its subsequent sentencing decision are reviewed for an

       abuse of discretion. Id.


[11]   Once a trial court has concluded that probation has been violated, it may

       continue the defendant on probation, extend the probationary period for not

       more than one year beyond the original period, or order all or part of the

       previously-suspended sentence to be executed. Ind. Code § 35-38-2-3 (2014).


       Court of Appeals of Indiana | Memorandum Decision 48A02-1503-CR-157 | December 10, 2015   Page 5 of 8
[12]   Bergfeld alleges that the positive alcohol results were based on his use of cold

       medicine. Even accepting Bergfeld’s explanation, we remain disinclined to

       accept his argument. We note that there are other cold medicines on the

       market that do not contain alcohol, and his attempt to fabricate an explanation

       for his consumption of alcohol through Nyquil or other cold medicines suggests

       a consciousness of guilt and an attempt to conceal the prohibited behavior. The

       terms of Bergfeld’s probation overtly required him not to “consume alcohol . . .

       of any type.” (Appellant’s App. p. 120). On January 4, 2015, and January 14,

       2015, Bergfeld’s Sobrietor tests produced positive alcohol readings. In addition,

       Bergfeld’s urine submitted on January 14, 2015, yielded a positive alcohol

       reading. The affidavit sworn by the toxicologist stated that “Bergfeld would

       have had to use [] or ingest a substance containing ethyl alcohol sometime in

       the five days prior to the urine collection.” (State’s Exh. 1).


[13]   With regards to Bergfeld’s new methamphetamine related offenses, Bergfeld

       argues that two other people lived in his house, and the State had failed to

       present evidence that he constructively possessed the meth apparatus or

       precursors recovered in his home. We disagree. In order to prove constructive

       possession, the State must prove the defendant had the intent and capability to

       maintain dominion and control over the contraband. Lampkins v. State, 682

       N.E.2d 1268, 1275 (Ind. 1997), modified on reh’g on other grounds, 685 N.E.2d

       698 (Ind. 1997). To prove intent to maintain dominion and control, there must

       be additional circumstances supporting the inference of intent. Id. Proximity to

       contraband in plain view is one such circumstance. Id. Constructive possession


       Court of Appeals of Indiana | Memorandum Decision 48A02-1503-CR-157 | December 10, 2015   Page 6 of 8
       may also be proven by a defendant’s incriminating statements, attempted flight

       or furtive gestures, or the comingling of contraband with other items the

       defendant owns. Henderson v. State, 715 N.E.2d 833, 835-36 (Ind. 1999).


[14]   When the officers arrived at Bergfeld’s residence, they noticed a strong

       chemical odor associated with the manufacturing of methamphetamine. The

       record shows that Bergfeld occupied one room, whereas B.J. occupied another.

       One of the bedrooms remained unoccupied. The search revealed items

       associated with the manufacturing of meth in the back of the residence, and that

       part was accessible only from the unused bedroom which was connected to

       B.J.’s bedroom. Even assuming that Bergfeld did not have access to the back of

       the residence, a further search revealed precursors in a crawlspace next to the

       bathroom, and trash indicating the presence of a meth lab. The bathroom was

       a common area, and nothing suggests that Bergfeld did not have access to the

       precursors. Moreover, Bergfeld’s knowledge that his house was being used as a

       meth lab, coupled with the fact that his son suspected and reported to law

       enforcement that he was manufacturing methamphetamine, supports the

       inference that some—if not all—of the precursors found at his residence

       constructively belonged to him.


[15]   Lastly, we recognized the trial court’s leniency in this matter. After Bergfeld

       tested positive for alcohol in 2014, the trial court placed him on an alcohol

       monitoring device. Despite the trial court’s mercy, Bergfeld violated his

       probation again by testing positive for alcohol in January 2015, and for

       committing new offenses. The foregoing facts demonstrate Bergfeld’s disregard

       Court of Appeals of Indiana | Memorandum Decision 48A02-1503-CR-157 | December 10, 2015   Page 7 of 8
       for court orders and the probation system. Accordingly, we affirm the trial

       court’s order revoking Bergfeld’s probation.


                                              CONCLUSION

[16]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion in revoking Bergfeld’s probation.


[17]   Affirmed.


[18]   Brown, J. and Altice, J. concur




       Court of Appeals of Indiana | Memorandum Decision 48A02-1503-CR-157 | December 10, 2015   Page 8 of 8
