Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be                          Feb 20 2014, 6:48 am
regarded as precedent or cited before any
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:

JOHN T. WILSON                                  GREGORY F. ZOELLER
Anderson, Indiana                               Attorney General of Indiana

                                                RYAN D. JOHANNINGSMEIER
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

DAVID HEDGECRAFT,                               )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 48A05-1303-CR-141
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MADISON CIRCUIT COURT
                       The Honorable Thomas Newman, Jr., Judge
                            Cause No. 48C03-1204-FD-733


                                    February 20, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

      Appellant-Defendant, David V. Hedgecraft (Hedgecraft), appeals his conviction for

maintaining a common nuisance, a Class D felony, Ind. Code § 35–48-4-13, and dealing

in methamphetamine, a Class B felony, I.C. § 35–48-4-1.1.

      We affirm.

                                         ISSUE

      Hedgecraft raises three issues on appeal which we state as follows:

      1. Whether there was sufficient evidence to sustain Hedgecraft’s conviction for

          dealing in methamphetamine;

      2. Whether the trial court properly sentenced Hedgecraft; and

      3. Whether the jury reached an inconsistent verdict.

                       FACTS AND PROCEDURAL HISTORY

      On April 17, 2012, Madison County Sherriff’s Deputy Brad Oster (Deputy Oster)

responded to an anonymous tip regarding the manufacturing of methamphetamine in

Hedgecraft’s garage located at 288 East 1100 North, Alexandria, Madison County, Indiana.

Deputy Oster and two other Officers went to the residence to conduct a “stop and knock.”

(Transcript p. 148). Hedgecraft’s daughter opened the door and told the Officers her father

was not at home. Shortly thereafter, Hedgecraft arrived finding the Officers outside his

house. Hedgecraft appeared jittery and shaky, but he consented to a search of his garage.

Hegdecraft’s garage was a two-and-one half car garage with two separate areas inside. The

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first room was a former apartment that contained some workout equipment and was partly

furnished. The other room was a typical garage. The two rooms were separated by a wall

with an entry door. The entry door to the garage was secured with a deadbolt and the door

frame had been reinforced. When the Officers entered the garage, they detected a strong

chemical odor unique to methamphetamine laboratories. The odor was so strong the

Officers asked Hedgcraft to open the overhead garage door so as to ventilate the garage.

Despite the fact that there was no evidence of methamphetamine in Hedgecraft’s garage,

the Officers found several items used in the manufacture of methamphetamine including;

a partially burned plastic bottle, lithium battery casing strips, a bottle converted into a HCL

generator, two cans of Coleman fuel, two vinyl tubing, a blender that contained a white

residue and one pot in the trash. The materials that the Officers found inside the garage

indicated that the “[b]irch [r]eduction [m]ethod” for manufacturing methamphetamine,

commonly called the “one pot version” had been used. (Tr. p. 213). When the Officers

conducted a “drager test” on the partially burned plastic bottle, it tested positive for

ammonia. (Tr. p. 220).

       On April 18, 2012, based on the evidence discovered during the search, the State

filed an Information charging Hedgecraft with Count I, possession of chemical reagents or

precursors with intent to manufacture a controlled substance, a Class D felony, I.C. § 35–

48-4-14.5; and Count II, maintaining a common nuisance, a Class D felony, I.C. § 35–48-

4-3. On September 27, 2012, the State amended the Information and added Count III,

dealing in methamphetamine, a Class B felony, I.C. § 35–48-4-1.1. On February 13


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through February 14, 2013, a jury trial was conducted. At the close of the evidence, the

jury found Hedgecraft guilty as charged on Count II and III but was hung on Count I. On

February 25, 2013,the State dismissed Count I and the trial court sentenced Hedgecraft to

three years on Count II and twenty years on Count III, all to run concurrently.

       Hedgecraft now appeals. Additional facts will be provided as necessary.

                                   DISCUSSION AND DECISION

                              I.      Sufficiency of the Evidence

       Hedgecraft contends that the State did not provide sufficient evidence to support his

conviction for dealing in methamphetamine.

       In reviewing a sufficiency of the evidence claim, this court does not reweigh the

evidence or judge the credibility of the witnesses. Perez v. State, 872 N.E.2d 208, 212–13

(Ind. Ct. App. 2007), trans. denied. We will consider only the evidence most favorable to

the verdict and the reasonable inferences to be drawn therefrom and will affirm if the

evidence and those inferences constitute substantial evidence of probative value to support

the judgment. Id. at 213. Reversal is appropriate only when reasonable persons would not

be able to form inferences as to each material element of the offense. Id.

       Hedgecraft maintains that because he did not have dominion over his garage, he did

not constructively possess the items that were discovered in the garage and were used to

manufacture methamphetamine. Specifically he argues that the garage had been broken

into several times, and was not secure. Additionally, he also alleges that when his son was


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arrested and convicted for manufacturing methamphetamine from his garage, the Drug

Task Force confiscated most of the items and left some items behind.

       In order to prove constructive possession, the State must show that the defendant

has both (1) the intent to maintain dominion and control and (2) the capability to maintain

dominion and control over the contraband. Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999).

To prove the intent element, the State must demonstrate the defendant’s knowledge of the

presence of the contraband, which may be inferred from either the exclusive dominion and

control over the premises containing the contraband or, if the control is non-exclusive,

evidence of additional circumstances pointing to the defendant’s knowledge of the

presence of the contraband. Id. (quoting Taylor v. State, 482 N.E.2d 259, 261 (Ind. 1985)).

Such additional circumstances include, but are not limited to, the following: (1)

incriminating statements by the defendant; (2) attempted flight or furtive gestures; (3)

location of substances like drugs in settings that suggest manufacturing; (4) proximity of

the contraband to the defendant; (5) location of the contraband within the defendant’s plain

view; and (6) the mingling of the contraband with other items owned by the defendant.

Macklin v. State, 701 N.E.2d 1247, 1251 (Ind. Ct. App. 1998).

       Even if we assume other people had access to Hedgecraft’s garage, an assumption

that was not supported by the actual evidence, the additional circumstances presented at

trial support the inference that Hedgecraft intended to maintain dominion and control over

his garage, and that he had actual knowledge of the garage’s illegal character. First, when

Hedgrecraft met the officers at his home, he was jittery. Also, when the Officers entered

Hedgecraft’s garage, they were met with a strong odor, a smell obvious to them that the

                                             5
garage had been used as a methamphetamine lab. Moreover, when the officers searched

the garage, they found items commonly used in the production of methamphetamine in

plain view.

       To prove the capability prong, the State had to show that Hedgecraft had “the power,

by way of legal authority, or in a practical sense, to control the place where, or the item in

which, the substance is found.” Jones v. State, 807 N.E.2d 58, 65 (Ind. Ct. App. 2004).

Here, the record reveals that only Hedgecraft and his son had keys to the garage.

Hedgecraft’s son, who was in prison, had lost his keys, and this only meant that by process

of elimination, Hedgecraft was the only one who had access to the garage. The record

further reveals that the garage door had a deadbolt and was strapped shut, and the overhead

garage door opener had been disabled. For these reasons, we conclude that Hedgecraft

constructively possessed the items found in the garage.

                                       II.    Sentencing

       We have held that, “[a]s long as the sentence is within the statutory range, it is

subject to review only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490

(Ind. 2007), aff’d on reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of discretion occurs if

the decision is clearly against the logic and effect of the facts and circumstances before the

court, or the reasonable, probable, and actual deductions to be drawn therefrom. Id. One

way in which a trial court may abuse its discretion is by failing to enter a sentencing

statement at all. Id. Another example includes entering a sentencing statement that

explains reasons for imposing a sentence, including aggravating and mitigating factors,

which are not supported by the record. Id. at 490–91.

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       Since the trial court no longer has any obligation to weigh aggravating and

mitigating factors against each other when imposing a sentence, a trial court cannot now

be said to have abused its discretion by failing to properly weigh such factors. Id. at 491.

This is so because once the trial court has entered a sentencing statement, which may or

may not include the existence of aggravating and mitigating factors, it may then impose

any sentence that is authorized by statute and permitted under the Indiana Constitution. Id.

This does not mean that criminal defendants have no recourse in challenging sentences

they believe are excessive. Id. Although a trial court may have acted within its lawful

discretion in determining a sentence, Appellate Rule 7(B) provides that the appellate court

may revise a sentence authorized by statute if the appellate court finds that the sentence is

inappropriate in light of the nature of the offense and the character of the offender. Id. It

is on this basis alone that a criminal defendant may now challenge his sentence where the

trial court has entered a sentencing statement that includes a reasonably detailed recitation

of its reasons for imposing the particular sentence that is supported by the record, and the

reasons are not improper as a matter of law. Id.

                                        A. Aggravators

       Hedgecraft argues that the trial court’s consideration of his criminal history as a

single aggravator was improper. We have held that one aggravating factor can be a

sufficient basis to enhance a sentence. Peoples v. State, 649 N.E.2d 638, 640 (Ind. Ct. App.

1995). In the instant case, the record reveals that the trial court relied on the pre-sentence

report which showed that Hedgecraft had several misdemeanor convictions including

criminal conversion, criminal trespass, operating vehicle while intoxicated, burglary

                                              7
resulting in bodily injury, driving while intoxicated and driving while on suspended

license. Therefore, we conclude the trial court properly relied on his criminal history as an

aggravating factor.

                                  B. Inappropriate Sentence

       Hedgecraft next argues that the sentence imposed by the trial court is inappropriate

in light of the nature of the offense and the character of the offender as provided for in

Appellate Rule 7(B). We note that the sentence for dealing in methamphetamine, a Class

B felony, is a fixed term of between six and twenty years, with the advisory sentence being

10 years. See I.C. § 35-50-2-5. Whereas the sentence for maintaining common nuisance,

a Class D felony is a fixed term of between six months and three years, with the advisory

sentence being one and one-half years. The trial court in this instant case sentenced

Hedgecraft to the maximum sentence on both offenses.

       Here, Hedgecraft attempts to discount the seriousness of the nature of his offenses

by claiming he did not any way harm his neighbors. While no evidence was presented at

trial showing Hedgecraft lived in a populated neighborhood thus posing a danger to his

neighbors, we have reason to believe that as a matter of fact it did. The record shows that

the Officers responded an anonymous tip, therefore a reasonable inference can be made

that a concerned neighbor had been affected by Hedgecraft’s manufacturing of

methamphetamine. Moreover, at trial, the Officers testified that even though they did not

find actual methamphetamine, they were certain that the manufacturing process of

methamphetamine had taken place at Hedgecraft’s garage.



                                             8
       On review of the Hedgecraft’s character, the record reveals that he had been

convicted of several misdemeanor convictions and he admitted to being addicted to drugs.

Based on the foregoing, we cannot say that Hedgecraft’s sentence is inappropriate based

on the nature of the offense and his character.

                                  III.   Inconsistent Verdict

       Hedgecraft lastly contends that his conviction for Count III, dealing in

methamphetamine must be vacated because the jury did not convict him of Count I,

possession of chemical reagents or precursor with intent to manufacture. He argues that it

is impossible to convict him of manufacturing methamphetamine without first possessing

the chemical precursors of methamphetamine.

       We note that, both offenses have different elements. I.C. § 35–48–4–2(a)(1)(A)

provides that a person who knowingly or intentionally manufactures a schedule II

controlled substance, which includes methamphetamine, commits a Class B felony.

Whereas, a person who possesses two or more chemical reagents or precursors with the

intent to manufacture methamphetamine commits a Class D felony. See I.C. § 35–48–4–

14.5(b). We have recognized that:

   [t]he sole practical difference between these two offenses is that one may be guilty of
   possessing the chemical precursors with intent to manufacture without actually
   beginning the manufacturing process, whereas the manufacturing process must, at the
   very least, have been started by a defendant in order to be found guilty of manufacturing
   methamphetamine.

Scott v. State. 803 N.E.2d 1231, 1239 (Ind. Ct. App. 2004).

        Here, because the jury was hung on Count I they could not determine whether

Hedgecraft was guilty of possessing chemical precursors of methamphetamine.

                                             9
Nevertheless, the jury found that the State had proved beyond reasonable doubt that

Hedgecraft had knowingly or intentionally manufactured methamphetamine from his

garage.     The evidence presented at trial indicates that Hedgecraft had previously

manufactured methamphetamine in his garage. The record shows that when the Officers

searched Hedgecraft’s garage, they detected a very strong chemical odor indicating that the

garage was as a methamphetamine laboratory. Also, they found equipment used in the

production of methamphetamine including a bottle converted into a HCL generator, two

cans of Coleman fuel, two vinyl tubing, a blender that contained a white residue and one

pot in the trash. At trial, the Officers testified that even though they did not find actual

methamphetamine, they were certain that the manufacturing process of methamphetamine

had started and had recently been completed at Hedgecraft’s garage. (Tr. p. 234). The

evidence presented at trial reasonably leads to the conclusion that actual methamphetamine

had been created in Hedgecraft’s garage. Under these particular circumstances, we cannot

say that because the jury was hung on Count I, it would be proper to vacate Hedgecraft’s

conviction on Count III.

          We therefore conclude that these two offenses, having separate elements, are

independent in nature, and must be proved separately. In this regard, we find that the State

presented sufficient evidence at trial, to permit a reasonable conclusion that Hedgecraft

knowingly and intentionally manufactured methamphetamine in his garage. For this

reason, we find that Hedgecraft’s conviction for dealing in methamphetamine need not be

vacated.

                                     CONCLUSION

                                            10
       Based on the foregoing, we conclude that, 1) there was sufficient evidence to

support Hedgecraft’s conviction for dealing in methamphetamine; 2) the trial court

properly sentence Hedgecraft; and 3) Hedgecraft’s conviction for dealing in

methamphetamine need not be vacated since the State proved the charge beyond a

reasonable doubt, Hedgecraft committed the offense.

       Affirmed.

VAIDIK, C.J. and MAY, J. concur




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