Opinion
No. 35A02-1106-CR-588
12-12-2011
DOUGLAS GARWOOD, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT : JEREMY K. NIX Matheny, Hahn, Denman & Nix, L.L.P. Huntington, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana ERIC P. BABBS Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
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:
JEREMY K. NIX
Matheny, Hahn, Denman & Nix, L.L.P.
Huntington, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
ERIC P. BABBS
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE HUNTINGTON SUPERIOR COURT
The Honorable Jeffrey R. Heffelfinger, Judge
Cause No. 35D01-1012-FB-310
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN , Judge
Douglas Garwood appeals his convictions and sentence for attempted dealing in methamphetamine as a class B felony and possession of precursors with intent to manufacture methamphetamine as a class D felony. Garwood raises two issues which we revise and restate as:
Ind. Code § 35-48-4-1.1(a)(1)(A) (Supp. 2006); Ind. Code § 35-41-5-1 (2004).
Ind. Code § 35-48-4-14.5(e) (Supp. 2006).
I. Whether the evidence was sufficient to sustain his convictions; andWe affirm in part and reverse in part.
II. Whether his sentence is inappropriate in light of the nature of the offense and the character of the offender.
The facts most favorable to the convictions follow. On December 20, 2010, Garwood and Jeffrey Denton began communicating by phone and text message about procuring "boxes of Sudafed" that Garwood could use to manufacture methamphetamine. Transcript at 43-44. Specifically, Garwood told Denton by text that they needed "two (2) cookies," which was a slang term for boxes of Sudafed, and asked Denton if "Jerry" could help obtain the same. Id. at 47. Garwood asked Denton to "[k]eep trying bro," and told Denton that "we'll have our cookies in the morning and our spot. Get this s---rolling," which meant to Denton that Garwood had Sudafed and that "he has got the spot that he needs to cook at and he's ready to start cooking" methamphetamine. Id. at 49-50.
On December 21, 2010, Garwood texted Denton that it was "[t]ime to do the dougie," which meant to Denton that it was "time to go cook a batch" of methamphetamine, and that they were going to "make it snow at dudes," which meant to Denton that Garwood planned to manufacture methamphetamine at the home of Jared Oden, with whom Garwood had been living. Id. at 54. Garwood also asked Denton to bring a two-liter bottle to use in the cooking process. That same day, Denton gave Garwood two boxes of "Sudafedrin [sic]." Id. at 56. Also, on December 22, 2010, Garwood texted Denton to "get at Josh," meaning that Garwood wanted Denton to set up a meeting with Josh, who was "supposed to be buying some Methamphetamines [sic] from" Garwood. Id. at 57.
We note that the drug Sudafed contains pseudoephedrine, which is a precursor of methamphetamine. See Transcript at 160-162 (reciting the testimony of Sergeant Mike Toles as follows: "This [PowerPoint presentation] shows how the drug Ephedrine or Sudafedrin [sic] is changed from its form into the Methamphetamine. . . . Typically what we find here in Indiana, Sudafed or any kind of over-the-counter nasal decongestant that contains Sudafedrin [sic] is utilized"); Appellant's Appendix at 9 (charging Garwood under Ind. Code § 35-48-4-14.5(e) and stating that he "possessed two (2) or more chemical reagents or precursors, namely: . . . pseudoephedrine . . . with the intent to manufacture a controlled substance"); see also Ind. Code § 35-48-4-14.5(a)(2).
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On December 23, 2010, Garwood and Oden picked Denton up in Oden's truck and traveled to Wal-Mart in Huntington, Indiana, to "gather[] the things that they needed from the store," and then they proceeded to Walgreens where Denton purchased a box of Sudafed with money from Garwood. Id. at 62-63. After leaving Walgreens, Garwood accused Oden of "stealing his dope," and began "stabbing" Oden's car seats, and Garwood asked Denton if he could help to move his possessions out of Oden's house. Id. at 68. Oden drove the three men back to his house, and Garwood began packing his possessions. At some point while Garwood was packing, Oden's father arrived at the house and told Garwood and Denton that they "needed to leave the property immediately before he called the police." Id. at 71. Garwood continued to yell at Oden about stealing from him and accused Oden of being a "snitch," and was "waiving [a] knife around," and Oden's father again asked the men to leave. Id. at 71-72. Garwood and Denton then left, with Denton carrying a "white trash bag full of toys and clothes and stuff like that" and a "red duffel bag," and Garwood carried a bag of trash so that "he could have a free hand to use his phone" and "call and get [the men] a ride." Id. at 72-73. The men then walked to the Hoosier Drive-In restaurant.
While Garwood and Denton waited in the parking lot at the restaurant, Detective Chad Hacker of the Huntington Police Department, who was off duty and in plain clothes, and another officer approached the men, and Detective Hacker could see through the trash bag what Garwood was carrying "fairly easy" and noticed "a red bottle that looked like Liquid Fire" and "a box of cold packs," both of which he "recognized to be used in the manufacturing of Methamphetamine." Id. at 109. Detective Hacker asked the men to set the bags down, asked what the contents of the bags were, and asked them to step away from the bags. Detective Hacker read Garwood the Miranda warning and waiver, and Garwood indicated that he would speak to him and told him that the bags contained his clothes. Detective Hacker asked Denton about the bags, and Denton replied that "[h]e didn't know what was in them" and that "[t]hey weren't his bags . . . ." Id. at 116. Detective Hacker asked Garwood if he could search the trash bag, and Garwood consented and signed a Consent to Search document. Detective Hacker asked Garwood if he could search the other bags and Garwood replied that they were not his, and then Detective Hacker asked Denton if he could search the bags and Denton complied and signed a consent form.
The officers told the two men that they were not free to leave and to sit down on a curb, and Garwood informed Denton that the trash bag had contraband inside. Denton told Garwood that "you know . . . that's your trash . . . and you need to man up and tell them," Garwood replied to Denton that "he was going to basically put it on Jared Oden and say that Mr. Oden had packed the bags . . . ." Id. at 75.
The other officer called for the Indiana State Police Meth Suppression Team to be dispatched to the scene, and upon their arrival the bags were separated and contents inventoried. The following items relevant to the investigation were discovered inside the red duffel bag: latex gloves; a plastic funnel; forty white Sudafed tablets; Liquid Fire drain cleaner containing sulfuric acid with a pH of 0; lithium batteries; Walgreens cold packs containing ammonium nitrate; Coleman camp fuel; Roto drain cleaner with sodium hydroxide aka lye; coffee filters; Morton's sea salt; vinyl tubing; a digital scale; two pairs of pliers; a butane torch; and a bag containing coffee filters that field tested positive for methamphetamine. The duffel bag also contained a black satchel which contained, among other things, a CD-R that had "Doug" written on it in green marker. Also, the trash bag that Garwood had been carrying contained the following items: two hydrochloric gas generators; two empty Walgreens cold packs; one empty bottle of Liquid Fire drain cleaner; one empty lithium battery pack; one empty bottle of Coleman fuel; two empty bottles of lye drain cleaner; a plastic bag containing battery strippings and casings; a Ziploc bag containing corrosive residue with a pH of 0; and a two-liter plastic bottle "filled with a white granular material" which tested positive for ammonia with a pH of 9.
Garwood and Denton were transported to the police department where Detective Sergeant Matthew Hughes interviewed Garwood while Detective Hacker interviewed Denton. Detective Hughes noticed that the tops of Garwood's hands were "really, really red," which "almost looked like a rash," and which was a red flag because "[d]uring the process of cooking the Meth it is really easy to chemically burn yourself . . . ." Id. at 219. During the interview, Garwood indicated to Detective Hughes that he had stolen a four-pack of size double-A lithium batteries from Wal-Mart and that he had purchased "some cold packs and a drink of tea" at Walgreens. Id. at 215. Garwood also told Detective Hughes that he had purchased Sudafed boxes, and that he had "been involved in smoking the dope off," which referred "to a stage of manufacturing Methamphetamine . . . ." Id. at 212-213. Later in the interview, Garwood told Detective Hughes that the lithium batteries, the Sudafed, and the cold packs "were for a cook for Meth" which was "supposed to happen on that day and that he was supposed to get a portion from that cook that night." Id. at 228. Garwood also stated to Detective Hughes that he was "a dope fiend." Id. at 214.
On December 23, 2010, the State charged Garwood with Count I, attempted dealing in methamphetamine as a class B felony, and Count II, possession of precursors with intent to manufacture methamphetamine as a class D felony. On May 13, 2011, a bench trial was held and evidence consistent with the foregoing was presented. Denton, when asked by the prosecutor why he allowed law enforcement to view the text messages on his phone, replied that Garwood "was not going to take responsibility for" what was in the bags, and that Denton told Garwood that he was not going to take "the case for him," and that he was "going to be truthful and tell them exactly what happened." Id. at 78. Detective Hacker testified that he decided to observe Garwood and Denton because he was aware of them and "[s]eeing them stand out by the street at that time of day with trash bags and a duffel bag just kind of got [his] attention." Id. at 106. Also, Sergeant Mike Toles of the Indiana State Police, who works as a supervisor in the Meth Suppression Team, testified that the red duffel bag contained "everything necessary to manufacture Methamphetamine," and he testified as to the methamphetamine manufacturing process, noting where the various items involved are utilized. Id. at 181.
The court found Garwood guilty as charged. On June 14, 2011, the court held a sentencing hearing and sentenced Garwood to sixteen years for attempted manufacturing of methamphetamine and three years for possession of precursors with intent to manufacture methamphetamine and ordered that the sentences be served concurrently.
I.
The first issue is whether the evidence is sufficient to sustain Garwood's convictions for attempted dealing in methamphetamine and possession of precursors with intent to manufacture methamphetamine. When reviewing the sufficiency of the evidence to support a conviction, we must consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess witness credibility or reweigh the evidence. Id. We consider conflicting evidence most favorably to the trial court's ruling. Id. We affirm the conviction unless "no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt." Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). It is not necessary that the evidence overcome every reasonable hypothesis of innocence. Id. at 147. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict. Id. A. Attempted Dealing in Methamphetamine
The offense of dealing in methamphetamine is governed by Ind. Code § 35-48-4-1.1(a)(1)(A), which provides that "[a] person who . . . knowingly or intentionally . . . manufactures . . . methamphetamine, pure or unadulterated . . . commits dealing in methamphetamine, a Class B felony . . . ." Ind. Code § 35-48-1-18(1) defines "manufacture" as "the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis . . . ." An attempt is defined by Ind. Code § 35-41-5-1, which states in part that "[a] person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime. An attempt to commit a crime is a felony or misdemeanor of the same class as the crime attempted." A "substantial step" toward the commission of a crime, for purposes of the crime of attempt, is any overt act beyond mere preparation and in furtherance of intent to commit an offense. Hughes v. State, 600 N.E.2d 130, 131 (Ind. Ct. App. 1992). Whether a defendant has taken a substantial step toward the commission of the crime, so as to be guilty of attempt to commit that crime, is a question of fact to be decided by the trier of fact based on the particular circumstances of the case. Id. Thus, to convict Garwood of attempted dealing in methamphetamine as a class B felony, the State needed to prove that Garwood: (1) knowingly or intentionally; (2) took a substantial step; (3) toward manufacturing methamphetamine.
Garwood argues that the items in the trash bag he was carrying when he was approached by Detective Hacker "were empty" and therefore "could not be used to take a substantial step towards the manufacture of methamphetamine." Appellant's Brief at 8. Garwood argues that although Denton was carrying a duffel bag containing items which "could be used to manufacture methamphetamine," the State did not "prove that Garwood constructively possessed those items." Id. Garwood argues that "[e]ven if [he] constructively possessed the duffel bag, the possession of the items themselves did not constitute a substantial step toward manufacturing methamphetamine, but simply constituted possession of chemical reagents or precursors with the intent to manufacture methamphetamine under I.C. 35-48-4-14.5(e)," and that "[t]o find that the simple possession of chemical reagents or precursors is sufficient for a conviction of Attempted Dealing of Methamphetamine by Manufacturing would erase the practical difference between the two offenses." Id. at 10-11.
The State argues that its "evidence was more than sufficient to prove a substantial step," noting that Garwood, "[i]n the days prior to December 23, 2010, [] conversed with Denton about plans to 'cook' methamphetamine" and "[o]n December 23, the two met up, together with Oden, and embarked on a spree to buy or steal ingredients . . . ." Appellee's Brief at 12. The State argues that "[a]fter Garwood was arrested, he admitted that the 'cook' was to happen later in the day on the 23rd." Id. The State argues: "Thus, Garwood did much more than possess two precursors; he had a complete working meth kit at the time the officers apprehended him," referring to the red duffel bag. Id. at 13. The State argues that "[w]hat is most telling is that Garwood did more than possess the individual items: he possessed all of them together in one place, so as to be immediately capable of 'cooking' methamphetamine." Id. The State also argues in its brief that the evidence revealed "Garwood actually possessed . . . his red duffel bag" in that he packed the bag and moved it outside of Oden's residence and then Denton "assisted Garwood by carrying the red duffel bag to the Hoosier Drive-In . . . ." Id. at 9. The State also argues that Garwood constructively possessed the duffel bag, noting that "at least three 'additional circumstances' are present: Garwood's proximity to the contraband, his incriminating statements, and mingling of the contraband with at least one item owned by Garwood." Id. at 10.
A person constructively possesses contraband when the person has (1) the capability to maintain dominion and control over the item; and (2) the intent to maintain dominion and control over it. Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997), modified on reh'g, 685 N.E.2d 698 (Ind. 1997). Evidence that the defendant is able to reduce the contraband to the defendant's personal possession is sufficient evidence to establish the defendant had the capability to maintain dominion and control over the item. Grim v. State, 797 N.E.2d 825 (Ind. Ct. App. 2003). Regarding the intent element, where possession is not exclusive, the State must demonstrate the presence of additional circumstances pointing to the defendant's knowledge of the presence and the nature of the item. Gee v. State, 810 N.E.2d 338, 340 (Ind. 2004). We have previously identified some possible examples, including (1) a defendant's incriminating statements; (2) a defendant's attempting to leave or making furtive gestures; (3) the location of contraband like drugs in settings suggesting manufacturing; (4) the item's proximity to the defendant; (5) the location of contraband within the defendant's plain view; and (6) the mingling of contraband with other items the defendant owns. Id. (citing Henderson v. State, 715 N.E.2d 833, 836 (Ind. 1999)); see also Carnes v. State, 480 N.E.2d 581, 586 (Ind. Ct. App. 1985) (list not exhaustive as other circumstances could just as reasonably demonstrate requisite knowledge), reh'g denied, trans. denied.
Here, we initially observe that Garwood was standing beside Denton, who was carrying the duffel bag, and as such was capable of maintaining dominion and control of the items necessary to manufacture methamphetamine. However, and as argued by Garwood, the circumstances were such that he was not in exclusive possession of the premises and, as such, "[t]he additional circumstances must then be reviewed." Appellant's Brief at 9. The evidence reveals he had personal effects comingled in the duffel bag with the contraband. Indeed, a black satchel contained within the duffel bag contained some CDs including one CD-R which had "Doug," Garwood's first name, written on it in green marker. Exhibit 13. Also, the duffel bag was never more than a few feet away from Garwood who was walking alongside Denton as Denton carried it. Also, and as discussed below, Garwood spoke with Officer Hughes and informed him that he had procured items which were also found in the duffel bag including lithium batteries, cold packs, and Sudafed pills. Thus, evidence was presented from which a trier of fact could have determined that Garwood possessed the duffel bag.
In addition to presenting evidence proving that Garwood was in possession of the duffel bag which contained the ingredients necessary to manufacture methamphetamine, the State also presented a plethora of other evidence from which a trier of fact could have found that a substantial step had been taken in manufacturing methamphetamine. The evidence adduced at trial demonstrated that on the date of Garwood's arrest, December 23, 2010, he, along with Denton and Oden, visited both a Wal-Mart and a Walgreens to procure key ingredients used in the manufacturing of methamphetamine. Garwood admitted to Detective Hughes that he stole lithium batteries from Wal-Mart and purchased cold packs containing ammonium nitrate for the purpose of manufacturing methamphetamine. He told Detective Hughes that he also purchased Sudafed boxes for the same purpose, and that the plan was to cook the methamphetamine "that night." Transcript at 228. Denton testified that, after they had been apprehended by Detective Hacker, Garwood indicated to him that Garwood was going to "say that [Oden] had packed the bags . . . ." Id. at 75. Denton also testified that Garwood gave him the money he used to purchase Sudafed on December 23, 2010. Finally, Sergeant Mike Toles testified that the red duffel bag contained "everything necessary to manufacture Methamphetamine . . . ." Id. at 181.
Based upon the record, we conclude that evidence of probative value exists from which the trial court could have found Garwood guilty of attempted dealing in methamphetamine as a class B felony. See Boggs v. State, 928 N.E.2d 855, 865-866 (Ind. Ct. App. 2010) (holding that the evidence was sufficient to prove that the defendant possessed pseudoephedrine and anhydrous ammonia in order to support a conviction for attempted dealing in methamphetamine), trans. denied. B. Possession of Precursors with Intent to Manufacture Methamphetamine
Garwood next challenges the sufficiency of the evidence supporting his conviction for possession of precursors with intent to manufacture methamphetamine, also known as possession of chemical reagents or precursors with intent to manufacture controlled substances. We conclude sua sponte, however, that this offense is necessarily included in Garwood's conviction for attempted dealing in methamphetamine by manufacturing it, and we reverse the possession of precursors with intent to manufacture methamphetamine conviction on that basis.
When a defendant is charged with an offense that is an included offense in a separate count and is found guilty on both counts, judgment may not be entered for the included offense. Ind. Code § 35-38-1-6. Ind. Code § 35-41-1-16 defines an "included offense" as an offense that:
(1) is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged;If each offense is established by proof of an element not contained in the other, then the trial court is not precluded from convicting and sentencing the defendant for both offenses. Ingram v. State, 718 N.E.2d 379, 381 (Ind. 1999).
(2) consists of an attempt to commit the offense charged or an offense otherwise included therein; or
(3) differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission.
Ind. Code § 35-48-4-1.1 provides that a person who knowingly or intentionally manufactures methamphetamine commits dealing in methamphetamine. Ind. Code § 35-48-4-14.5(e) states that "[a] person who possesses two (2) or more chemical reagents or precursors with the intent to manufacture a controlled substance commits a Class D felony." 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) (examining the defendant's convictions for dealing in methamphetamine as a class B felony and Ind. Code § 35-48-4-14.5(c)).
In Scott, this court held that possession of chemical precursors with intent to manufacture methamphetamine was not a lesser-included offense of manufacturing methamphetamine. Id. at 1240. We reasoned that contraband associated with the production of methamphetamine had been discovered on the defendant's property in a condition suggesting that the manufacturing process had occurred. Id. In addition, pseudoephedrine pills, anhydrous ammonia, lithium batteries, salt, coffee filters, and tubing were also found, indicating that the defendant intended to manufacture more methamphetamine. Id. Therefore, this court concluded that the "evidence [supported] the inference that two independent offenses occurred," and, therefore, possession of chemical precursors with intent to manufacture was not a lesser included offense of manufacturing methamphetamine. Id.
By contrast, in Bush v. State, this court held that the defendant's conviction for possessing methamphetamine precursors with intent to manufacture was a lesser-included offense of manufacturing methamphetamine. 772 N.E.2d 1020, 1025 (Ind. Ct. App. 2002), trans. denied. We reasoned that the defendant's "conviction for manufacturing methamphetamine was based exclusively on his possession of the precursors of that drug in circumstances suggesting that he was in the process of manufacturing it," and, therefore, the "same evidence establishing [the defendant] was knowingly or intentionally manufacturing methamphetamine also establishes that he possessed methamphetamine precursors with intent to manufacture the drug and vice versa." Id. at 1024 (emphasis added).
Here, regardless of the trash recovered by the detectives that may have suggested a manufacturing process had occurred, Garwood was charged with and convicted of attempted dealing in methamphetamine based upon his conduct "[o]n or about December 23, 2010," in addition to the possession of precursors with intent to manufacture methamphetamine charge. Appellant's Appendix at 9. Indeed, the prosecutor in closing argument argued that the "substantial steps" taken by Garwood and proven at trial were that Garwood had "stole a four pack of lithium batteries that he knew were going to be used to manufacture Methamphetamine," had "purchased cold packs and that [he] knew or purchased those cold packs because they were going to be utilized . . . in the production of Methamphetamine," and that he "purchased boxes of Sudafedrin [sic] . . . ." Transcript at 232. Thus, similar to Bush, Garwood's conviction for attempted dealing in methamphetamine was based on his possession of the precursors of that drug in circumstances suggesting that he was in the process of manufacturing it, and, thus, was based upon the same evidence as his possession of precursors with intent to manufacture methamphetamine conviction. Accordingly, we conclude that Garwood's conviction on Count II, possession of precursors with intent to manufacture methamphetamine, is included within his conviction for attempted dealing in methamphetamine and must be reversed.
II.
The next issue is whether Garwood's sentence is inappropriate in light of the nature of the offense and the character of the offender. Ind. Appellate Rule 7(B) provides that we "may revise a sentence authorized by statute if, after due consideration of the trial court's decision, [we find] that the sentence is inappropriate in light of the nature of the offense and the character of the offender." Under this rule, the burden is on the defendant to persuade the appellate court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Garwood argues that "[t]he nature of the offenses do not show that [he] placed anyone in substantial danger or resulted in a substantial loss to anyone in the community," that he admitted that his abuse of drugs and alcohol were a problem, and that his parents had been drug dealers and he was therefore "exposed to drugs and alcohol at a very young age . . . ." Appellant's Brief at 16-17. Garwood also notes that "his pastor . . . who has known [him] since he was very young, believed there is a lot of good in [him] despite the atmosphere in which he was raised by his parents," and that he opted for a bench trial rather than a trial by jury. Id. at 17.
Our review of the nature of the offense reveals that Garwood engaged in conduct to procure the various items needed in order to manufacture methamphetamine, and that when he encountered Detective Hacker he possessed a red duffel bag which contained "everything necessary to manufacture Methamphetamine." Transcript at 181.
Our review of the character of the offender reveals that Garwood's father passed away when Garwood was ten years old and his mother is currently serving a sentence for dealing in cocaine. Despite Garwood's young age of twenty-three at the time of sentencing, he has a substantial criminal history. As a juvenile, Garwood in 2000 and at the age of thirteen was first placed at White's Institute and subsequently committed to the Indiana Boys School stemming from charges of dealing in cocaine, dangerous possession of a firearm, and reckless possession of paraphernalia. In 2005, Garwood was placed on six months of probation and ordered to undergo SAE counseling, obtain his GED, obtain employment, undergo drug testing, and obey a 9 p.m. curfew stemming from charges of minor in possession of alcohol and public intoxication. Later that same year, he was charged with burglary, was waived into adult court, and was sentenced to six years with two years suspended to probation. A week before sentencing on his burglary charge, Garwood was charged with public intoxication and minor consuming alcohol, and he was subsequently sentenced to twenty days in the Allen County Jail. In 2008, a petition to revoke Garwood's probation on his burglary conviction was filed because he tested positive for marijuana and opiates and was ordered to serve one year of his original sentence. In 2009, while still on probation from the burglary conviction, Garwood was charged with operating while intoxicated - endangerment, operating with at least .08 but less than .15 BAC, and operating while intoxicated, and he was sentenced to 365 days with all but six days suspended. However, a second petition to revoke his probation was filed because of these new charges, and he was ordered to serve the balance of his original burglary sentence.
After due consideration for the sentence imposed by the trial court, we cannot say that Garwood's sixteen-year sentence for attempted dealing in methamphetamine as a class B felony is inappropriate in light of the nature of the offense and the character of the offender. See Boggs, 928 N.E.2d at 870-871 (holding in part that the defendant's sentence of fifteen years for attempted dealing in methamphetamine was not inappropriate in light of the nature of the offense and the character of the offender where the defendant had a significant criminal history consisting of "two prior felony convictions, two prior misdemeanor convictions, two juvenile adjudications, three probation revocations, several arrests, and at the time of the present offenses, had an outstanding warrant on drug charges").
For the foregoing reasons, we affirm Garwood's conviction and sentence for dealing in methamphetamine and reverse his conviction for possession of precursors with intent to manufacture methamphetamine.
Affirmed in part and reversed in part. MAY, J., and CRONE, J., concur.