MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             Aug 25 2015, 9:40 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 Jacob Warrum                                        Gregory F. Zoeller
Mt. Vernon, Indiana                                      Attorney General of Indiana

                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Darrell Mattingly,                                       August 25, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         65A01-1501-CR-29
        v.                                               Appeal from the Posey Superior
                                                         Court
State of Indiana,                                        The Honorable S. Brent Almon,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         65D01-1404-FA-99



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 65A01-1501-CR-29 | August 25, 2015     Page 1 of 8
                                             Case Summary
[1]   Darrell Mattingly (“Mattingly”) was convicted of three counts of Dealing in

      Methamphetamine, as Class A felonies, 1 and one count of Maintaining a

      Common Nuisance, as a Class D felony. 2 He now appeals, raising a single

      issue for our review: whether the State introduced evidence sufficient to rebut

      his affirmative defense of entrapment.


[2]   We affirm.



                               Facts and Procedural History
[3]   Mattingly had been friends with Rick Bowman (“Bowman”) during childhood,

      but the two lost touch after high school. Sometime in 2011, however,

      Mattingly and Bowman encountered one another in a tavern in Mount Vernon.

      The two men renewed their friendship, and by this time, both men had become

      involved in using methamphetamine. Bowman would occasionally stop by

      Mattingly’s home unannounced, and the two men would share the drugs.


[4]   During the course of their friendship, Bowman had provided Mattingly with

      materials for the manufacture of methamphetamine. Bowman witnessed




      1
        Ind. Code § 35-48-4-1.1. The Indiana General Assembly enacted substantial revisions to our state’s
      criminal statutes, effective July 1, 2014. We refer throughout to the substantive provisions of our statutes in
      effect at the time of Mattingly’s offenses.
      2
          I.C. § 35-48-4-13.


      Court of Appeals of Indiana | Memorandum Decision 65A01-1501-CR-29 | August 25, 2015                 Page 2 of 8
      Mattingly manufacture the drug using the “shake and bake” or “one pot”

      method, and had also seen Mattingly fail to do so successfully. 3


[5]   In 2012, Bowman became a confidential informant with the Posey County

      Narcotics Task Force and the Federal Bureau of Investigation. As part of this

      work, Bowman agreed to identify individuals he knew to be involved in the

      manufacture and distribution of methamphetamine. Mattingly was one of

      these individuals.


[6]   On February 8, 2013, Bowman contacted Mattingly to inquire about obtaining

      methamphetamine. Mattingly told Bowman that he did not have money to

      purchase all the supplies, and stated specifically that he needed

      pseudoephedrine pills and lithium batteries. Bowman informed his handler,

      Kenneth Rose (“Rose”), an investigator with the Posey County Prosecutor’s

      Office and head of the Posey County Narcotics Task Force, that he had

      arranged for Mattingly to manufacture methamphetamine. Rose provided

      Bowman with the pseudoephedrine pills and lithium batteries Mattingly

      required.


[7]   On February 9, 2013, in the context of a controlled buy monitored by Rose and

      other law enforcement officers, Bowman drove to Mattingly’s home in Mount

      Vernon and provided Mattingly two packages of pseudoephedrine pills and




      3
       The “shake and bake” or “one pot” method involves combining a number of chemicals, including ground-
      up pseudoephedrine tablets and strips of lithium pulled from lithium-containing batteries, into a single vessel.
      Tr. at 247. The vessel is shaken for a portion of the methamphetamine production process.

      Court of Appeals of Indiana | Memorandum Decision 65A01-1501-CR-29 | August 25, 2015                 Page 3 of 8
       some lithium batteries. Mattingly began the manufacturing process and, late in

       the day, contacted Bowman to inform him that the drugs were ready. Bowman

       drove back to Mattingly’s home and retrieved a large portion of the

       methamphetamine. After the transaction was complete, Bowman turned the

       methamphetamine over to Rose. Bowman had been provided with a recording

       device, and Bowman used the device to record audio and video of the portions

       of the transaction when he was present in Mattingly’s home.


[8]    On March 1, 2013, again within the context of a controlled buy, Rose provided

       Bowman with materials for the manufacture of methamphetamine, which

       Bowman again gave to Mattingly. On this occasion, Bowman provided four

       packages of pills, and a larger amount of methamphetamine was produced by

       Mattingly. Mattingly provided a large portion of the drugs to Bowman, and

       told Bowman that the product was of a higher quality than in the previous

       transaction because Mattingly had changed the process he used to dry the drug

       after the manufacturing process was complete.


[9]    After the conclusion of an investigation, on April 3, 2014, the State issued a

       warrant for Mattingly’s arrest. On April 7, 2014, the State filed a charging

       information, which charged Mattingly with three counts of Dealing in

       Methamphetamine and one count of Maintaining a Common Nuisance.


[10]   A jury trial was conducted from November 12 to November 14, 2014. During

       the trial, Mattingly pursued an affirmative defense of entrapment, and the jury




       Court of Appeals of Indiana | Memorandum Decision 65A01-1501-CR-29 | August 25, 2015   Page 4 of 8
       was instructed as to the applicable law. At the conclusion of the trial, the jury

       found Mattingly guilty as charged.


[11]   On December 19, 2014, a sentencing hearing was conducted. The trial court

       entered judgments of conviction against Mattingly at that time, and sentenced

       him to twenty six years imprisonment for each count of Dealing in

       Methamphetamine and twenty months imprisonment for Maintaining a

       Common Nuisance, with all the terms running concurrent with one another.

       This yielded an aggregate term of imprisonment of twenty six years.


[12]   This appeal ensued.



                                  Discussion and Decision
[13]   Mattingly raises for our review the sole question of whether the state adduced

       sufficient evidence to rebut his affirmative defense of entrapment. We review a

       claim of entrapment under the same standard that applies to other sufficiency

       challenges. Griesemer v. State, 26 N.E.3d 606, 608 (Ind. 2015). Thus, we do not

       reweigh evidence or reassess the credibility of witnesses. Id. We look to the

       probative evidence supporting the verdict and the reasonable inferences drawn

       therefrom. Id. If a reasonable trier of fact could infer beyond a reasonable

       doubt that the defendant was guilty, we will affirm the defendant’s conviction.

       Id.


[14]   In Indiana, the affirmative defense of entrapment is defined by statute:

               (a) It is a defense that:
       Court of Appeals of Indiana | Memorandum Decision 65A01-1501-CR-29 | August 25, 2015   Page 5 of 8
                        (1) the prohibited conduct of the person was the product of
                        a law enforcement officer, or his agent, using persuasion or
                        other means likely to cause the person to engage in the
                        conduct; and


                        (2) the person was not predisposed to commit the offense.


               (b) Conduct merely affording a person an opportunity to commit
               the offense does not constitute entrapment.


       I.C. § 35-41-3-9.


[15]   Entrapment need not be formally pled. Griesemer, 26 N.E.3d at 609. “[R]ather,

       it is raised, often on cross-examination of the State’s witnesses, by affirmatively

       showing the police were involved in the criminal activity and expressing an

       intent to rely on the defense.” Id. Once entrapment has been raised, “[t]he

       State then has the opportunity for rebuttal, its burden being to disprove one of

       the statutory elements beyond a reasonable doubt.” Id. There is no entrapment

       if the State shows either (1) there was no police inducement, or (2) the

       defendant was predisposed to commit the crime. Id. The entrapment defense

       exists because “we do not tolerate government activity that lures an otherwise

       law-abiding citizen to engage in crime. After all, the job of law enforcement is

       to catch established criminals, not manufacture new ones.” Id. (citations

       omitted).


[16]   Mattingly contends that there was a failure of proof as to the second element of

       entrapment, predisposition. Whether a defendant was predisposed to commit a

       charged crime is a question for the trier of fact. Turner v. State, 993 N.E.2d 640,
       Court of Appeals of Indiana | Memorandum Decision 65A01-1501-CR-29 | August 25, 2015   Page 6 of 8
       644 (Ind. Ct. App. 2013), trans. denied. “A jury may properly find

       predisposition from such circumstances as familiarity with drug jargon and

       prices, engaging in multiple transactions, and undertaking to arrange future

       transactions.” Id.


[17]   Here, the State produced numerous items of evidence relevant to the question

       of Mattingly’s predisposition. Mattingly twice manufactured

       methamphetamine using supplies provided to Bowman by Posey County law

       enforcement personnel. Video and audio recordings from the transactions on

       February 9 and March 1, 2013 were introduced into evidence; the recordings

       show Mattingly handing over methamphetamine to Bowman without objection

       on both occasions. Bowman testified that when he asked Mattingly for

       methamphetamine, Mattingly requested pseudoephedrine pills and lithium

       batteries for the production process. Mattingly produced the methamphetamine

       outside of Bowman’s presence, and on both occasions Mattingly called

       Bowman several hours after obtaining the supplies to inform Bowman that the

       manufacturing process was complete. Further, during his testimony at trial,

       Mattingly testified to his knowledge of the methamphetamine production

       process; explained how he was able to improve the quality of the

       methamphetamine he produced on March 1, 2013, and stated that he wanted to

       improve the quality of the drug because he wanted to impress Bowman; and

       demonstrated knowledge of terminology related to quantities and prices for

       methamphetamine, as well as knowledge about the salability of poorly

       produced methamphetamine. See id.


       Court of Appeals of Indiana | Memorandum Decision 65A01-1501-CR-29 | August 25, 2015   Page 7 of 8
[18]   Simply put, there was sufficient evidence from which a reasonable jury could

       conclude beyond a reasonable doubt that the State had rebutted Mattingly’s

       claim of entrapment. We accordingly affirm Mattingly’s convictions.


[19]   Affirmed.


       Baker, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 65A01-1501-CR-29 | August 25, 2015   Page 8 of 8
