                                                                           Oct 10 2013, 5:34 am




FOR PUBLICATION

ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

LEANNA WEISSMANN                             GREGORY F. ZOELLER
Lawrenceburg, Indiana                        Attorney General of Indiana

                                             JUSTIN F. ROEBEL
                                             Deputy Attorney General
                                             Indianapolis, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

DUSTIN JACK GIFFORD,                         )
                                             )
     Appellant-Defendant,                    )
                                             )
            vs.                              )       No. 40A05-1304-CR-197
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff.                     )


                  APPEAL FROM THE JENNINGS CIRCUIT COURT
                       The Honorable Jon W. Webster, Judge
                          Cause No. 40C01-1207-FD-154



                                  October 10, 2013


                            OPINION - FOR PUBLICATION


CRONE, Judge
                                     Case Summary

       Dustin Jack Gifford appeals his conviction for class D felony possession of chemical

reagents or precursors with the intent to manufacture a controlled substance. The sole issue

presented for our review is whether the State presented sufficient evidence to sustain the

conviction. Finding the evidence insufficient, we reverse.

                             Facts and Procedural History

       The facts most favorable to the conviction indicate that, on June 2, 2012, Katrina

Roush and her boyfriend, Jared Bonds, were hanging out with Gifford and Gifford’s father,

Denver, at Gifford’s house in Jennings County. Gifford suggested that the group travel to

Jefferson County to “get boxes” of pseudoephedrine. Tr. at 119. The plan was to eventually

sell the boxes to someone who manufactured methamphetamine, but they didn’t yet “have a

purchaser or nothing.” Id. at 121.

       Denver drove the group to Madison in his van. Gifford gave Roush and Bonds money

to buy pseudoephedrine. Denver and Gifford waited in the van while Roush and Bonds went

into a CVS pharmacy and each bought a ninety-six-count package of nasal decongestant

which contained pseudoephedrine. A CVS employee was suspicious regarding the purchases

because Roush and Bonds had driven from a different county just to buy nasal decongestant.

The employee contacted Madison City Police Officer Jonathan Simpson.

       Officer Simpson, who was in plain clothes and in an unmarked vehicle, followed the

van from the CVS to the Madison Walmart. He watched as Gifford and another man went

into the store and saw them purchase lithium batteries. The group left Walmart and drove


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into Jennings County, where the van was stopped by uniformed officers for a traffic

infraction. Denver, who was driving, consented to a search of the vehicle. Officers found

one box of pseudoephedrine in Roush’s purse and one box of pseudoephedrine in the driver’s

side rear door. Gifford, who had been sitting in the front passenger seat, told officers that the

batteries he had purchased were “hidden in the dash” on the passenger side of the vehicle.

Id. at 145. Officers discovered lithium batteries “shoved up” behind the door of a fuse box.

Id. Gifford claimed that the batteries were for his camera and that he hid them because “he

knew that it did not look good to have [pseudoephedrine] and lithium batteries in the same

vehicle.” Id. at 146. Bonds revealed to officers that the plan was to “make some calls and

line up a buyer or trade” the pseudoephedrine for “a half a gram of meth.” Id. at 151.

       On July 31, 2012, the State charged Gifford with class D felony possession of

chemical reagents or precursors with the intent to manufacture a controlled substance.

Following a trial, the jury found Gifford guilty as charged. This appeal ensued.

                                  Discussion and Decision

       Gifford challenges the sufficiency of the evidence to support his conviction. When

reviewing insufficiency of the evidence claims, we neither reweigh evidence nor judge

witness credibility. Mathews v. State, 978 N.E.2d 438, 443 (Ind. Ct. App. 2012), trans.

denied (2013). Instead, we examine the evidence and reasonable inferences most favorable

to the verdict. Id. If there is evidence of probative value from which a reasonable trier of

fact could find the defendant guilty beyond a reasonable doubt, we will affirm. Id. Reversal

is appropriate only when reasonable persons would not be able to form inferences as to each


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material element of the offense. Perez v. State, 872 N.E.2d 208, 213 (Ind. Ct. App. 2007),

trans. denied.

         To prove that Gifford committed class D felony possession of chemical reagents or

precursors with the intent to manufacture a controlled substance, the State was required to

prove beyond a reasonable doubt that Gifford possessed two or more chemical reagents or

precursors, specifically pseudoephedrine and lithium metal,1 “with the intent to manufacture”

methamphetamine. See Ind. Code § 35-48-4-14.5(e). On appeal, Gifford claims that the

State presented insufficient evidence regarding both his possession and his intent. Because

we find the lack of evidence regarding intent to be dispositive, we need not address the

sufficiency of the evidence regarding possession.

         The State concedes that the evidence establishes that Gifford’s undisputed intent was

to eventually sell the pseudoephedrine to someone else who would use it to manufacture

methamphetamine.2 There was no evidence presented that Gifford personally intended to

manufacture methamphetamine. The State recognizes that another panel of this Court has

interpreted the identical language “with the intent to manufacture” methamphetamine in an

analogous provision of Indiana Code Section 35-48-4-14.5 to require proof that the person

charged with possession must personally have the intent to manufacture methamphetamine.

Specifically, in Prater v. State, 922 N.E.2d 746, 749 (Ind. Ct. App. 2010), trans. denied, we


         1
         Pseudoephedrine and lithium metal are both listed as chemical reagents or precursors. See Ind. Code
§ 35-48-4-14.5(a)(2) and -(a)(8).
         2
             The State acknowledges that this was the only theory of intent argued by the deputy prosecutor at
trial.


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analyzed that portion of the statute providing that “[a] person who possesses anhydrous

ammonia … with the intent to manufacture methamphetamine” commits a class D felony.

Ind. Code § 35-48-4-14.5(c). We concluded that the plain language used by the legislature,

namely “with the intent to manufacture,” requires that the person who possesses anhydrous

ammonia must also have the personal intent to manufacture methamphetamine. Prater, 922

N.E.2d at 750.

       Acknowledging the clear applicability of our decision in Prater, the State urges that

Prater was decided erroneously and that we should reexamine the language “with the intent

to manufacture” and determine that our legislature intended to criminalize mere possession of

chemical reagents or precursors even absent personal intent to manufacture a controlled

substance. We believe that the plain language of the statute is clear, and we decline the

State’s invitation to revisit the issue. As the State presented no evidence to the jury that

Gifford personally intended to manufacture a controlled substance as required by Indiana

Code Section 35-48-4-14.5(e), we reverse his conviction. 3

       Reversed.

BARNES, J., and PYLE, J., concur.




       3
          The State maintains that the jury was free to disregard the deputy prosecutor’s argument that
Gifford’s undisputed intent was to eventually sell the precursors and that the jury could have instead
reasonably inferred that Gifford intended to personally manufacture methamphetamine. However, as stated
above, there was no evidence presented that Gifford intended to personally manufacture methamphetamine.

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