Opinion
Court of Appeals Case No. 21A-CR-1012
03-28-2022
Anthony ZOELLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Attorney for Appellant: Alice B. Blevins, Bartanen Law Office, Salem, Indiana Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, George P. Sherman, Supervising Deputy Attorney General, Indianapolis, Indiana
Attorney for Appellant: Alice B. Blevins, Bartanen Law Office, Salem, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, George P. Sherman, Supervising Deputy Attorney General, Indianapolis, Indiana
MEMORANDUM DECISION
Mathias, Judge.
[1] Anthony Zoeller appeals his convictions following a jury trial for Level 2 felony dealing in methamphetamine; Level 4 felony possession of methamphetamine; Level 3 felony dealing in a narcotic drug; Level 5 felony possession of a narcotic drug; and Level 6 felony resisting law enforcement. We raise one issue sua sponte , namely, whether his convictions for possession and dealing violate double jeopardy. And Zoeller presents four issues for our review, which we consolidate and restate as three issues:
1. Whether Indiana Code Section 35-48-1-16.5 is unconstitutionally vague and overbroad as applied here.
2. Whether the State presented sufficient evidence to support his convictions for possession and dealing.
3. Whether the trial court denied him his right to due process when it rejected his request that an incarcerated defense witness wear street clothes to testify.
[2] We affirm in part, reverse in part, and remand with instructions.
Facts and Procedural History
[3] On November 21, 2018, Zoeller was driving a Chrysler Sebring in Palmyra, Indiana, and a female companion was sitting in the front passenger seat. Washington County Sheriff's Lieutenant Brad Naugle was on patrol and saw Zoeller swerve into his lane of travel on Palmyra Road. Lieutenant Naugle was actively "conducting an investigation" that involved a Chrysler Sebring, and he attempted to initiate a traffic stop of the car. Tr. Vol. 2 p. 80. A short time later, Deputy Tory Hildreth joined the pursuit of the Sebring, but Zoeller did not respond to the two marked patrol cars with lights flashing and sirens blaring behind him.
Zoeller's passenger was not identified at trial.
[4] Lieutenant Naugle and Deputy Hildreth followed Zoeller as he left Palmyra Road and proceeded to drive down highways and county roads. At one point, Zoeller pulled off to the side of Corydon Ramsey Road, opened his car door, and threw "a container" into a ditch. Id. at 85. Zoeller then closed his door and continued driving. At another point, the Sebring's passenger threw a "white powdery substance" out of her window, which struck Lieutenant Naugle's windshield. Id. Finally, Zoeller pulled into a carport off of May Drive. Zoeller got out of the Sebring, and Lieutenant Naugle and Deputy Hildreth arrested him. A "Reserve Officer" riding with Deputy Hildreth arrested the female passenger. Id. at 86.
[5] Lieutenant Naugle read Zoeller his Miranda rights. Lieutenant Naugle asked Zoeller why he had "run," and Zoeller responded that he "didn't like the police." Id. at 87. In searching the vehicle, Lieutenant Naugle and Deputy Hildreth found a baggie containing methamphetamine, digital scales, and a woman's wallet with $389 in cash in it. The officers also found a total of $620 on Zoeller's person.
[6] Lieutenant Naugle then drove to the location on Corydon Ramsey Road where he had seen Zoeller toss a container into a ditch. He was able to find the exact location because he had noticed a "white pole that was kind of hanging out of [a] tree" near the ditch when Zoeller had stopped there. Id. at 91. From his search at that location, Lieutenant Naugle found methamphetamine, both in baggies and loose on the road, "some pills," and "a white powdery substance that was in the ditch [that was] later tested at the police lab and came back as fentanyl." Id. Lieutenant Naugle was able to collect some of the methamphetamine that had been "crushed into the cracks in the road." Id. at 94. In all, officers found 3.21 grams of methamphetamine and 2.28 grams of fentanyl.
[7] After amending the original charges, the State charged Zoeller with: Count I, Level 2 felony dealing in methamphetamine; Count II, Level 4 felony possession of methamphetamine; Count III, Level 3 felony dealing in a narcotic drug; Count IV, Level 6 felony resisting law enforcement; and Count V, Level 5 possession of a narcotic drug. The State also alleged that Zoeller was a habitual offender. Counts I and II alleged in relevant part that Zoeller possessed at least five grams of methamphetamine, and Counts III and V alleged in relevant part that Zoeller possessed at least one gram of fentanyl.
[8] During Zoeller's jury trial, Indiana State Police Detective Matt Busick testified that he was trained in "narcotics investigation" and had worked on "hundreds" of drug cases. Id. at 131. Detective Busick testified that "most of the drug dealers" in Washington County are "mid or low level dealers" who sell "smaller amounts" of drugs. Id. at 132. For example, he described these dealers typically selling an "8 ball," which is "3.5 grams," or an eighth of an ounce of drugs. Id. at 133. Detective Busick explained that dealers use digital scales and baggies to package drugs and that they usually carry several different denominations of cash. Finally, Detective Busick testified that dealers typically cut drugs with other substances "to make it weigh more" for sale. Id. at 135. He stated that "what they use a lot of times is fentanyl," which is "very potent" and "cheap." Id. Detective Busick explained that, "if [the dealers] are cutting [a drug] with fentanyl or other items they need the ... scale to try to get a proper mix with a cut, again to make the best s[ale] they can." Id. at 137.
[9] Zoeller called Brandon White to testify for the defense. White was then incarcerated at the Clark County Jail, and he arrived at Zoeller's trial wearing "jail clothes." Id. at 180. Zoeller moved the trial court to allow White to change into "street clothes" to testify, and the court denied that motion. Id. However, the court ordered that Washington County Sheriff Brent Miller provide White with "de[ ]cent jail clothing" to replace the jail clothes he was wearing, which had holes in them. Id. at 185. And when White took the witness stand, the trial court admonished the jury as follows: "Members of the jury, ... you are not [to] place undue weight upon the appearance of Mr. White. You should weigh and consider his testimony as you would any other witness." Id. at 188.
[10] The jury found Zoeller guilty as charged, and the parties stipulated that Zoeller was a habitual offender. The trial court sentenced Zoeller to an aggregate term of thirty-five years executed. This appeal ensued.
Discussion and Decision
Double Jeopardy
[11] We sua sponte consider whether Zoeller's separate convictions for possession of methamphetamine and dealing in methamphetamine and his separate convictions for possession of a narcotic drug and dealing in a narcotic drug violate double jeopardy. "Because questions of double jeopardy implicate fundamental rights, we routinely correct double jeopardy violations even when not first invited by the parties." Phillips v. State , 174 N.E.3d 635, 644 (Ind. Ct. App. 2021).
[12] Here, the State presented evidence that Zoeller possessed a total of 3.21 grams of methamphetamine and 2.28 grams of fentanyl. There is no question that the State alleged and proved that Zoeller possessed the same methamphetamine to support his dealing in methamphetamine conviction and his possession of methamphetamine conviction (Counts I and II). Likewise, the State alleged and proved that Zoeller possessed the same fentanyl to support his dealing in narcotic drug conviction and his possession of narcotic drug conviction (Counts III and V). It is well settled that possession of a drug is a lesser included offense of dealing in that same drug. See id. at 646. And here, because the facts show that Zoeller's possession and dealing were "so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction," his convictions violate double jeopardy. Wadle v. State , 151 N.E.3d 227, 253 (Ind. 2020). Accordingly, we reverse Zoeller's convictions for possession of methamphetamine (Count II) and possession of a narcotic drug (Count V) and remand with instructions to the trial court to vacate those convictions.
[13] Further, as we discuss below, the State alleged that Zoeller intended to combine all of the fentanyl with the methamphetamine for sale. During its opening statement, the State argued that
[p]ow[d]ered non-pharmaceutical fentanyl is not ingested by itself for personal use. Why? Because it's deadly. The smallest amount of fentanyl can result in overdose and death. You will see that the fentanyl collected in this case is labeled hazardous and cannot be removed from the secure packaging for safety purposes from the Indiana State Police Lab. The defendant had this fentanyl to mix with the methamphetamine to sell.
Tr. Vol. 2 p. 74 (emphasis added). And to prove Level 2 felony dealing in methamphetamine as charged here, the State had to show, in relevant part, that Zoeller possessed at least five grams of methamphetamine. I.C. § 35-48-4-1.1(e)(2). At trial, again, the State presented evidence that Zoeller possessed only 3.21 grams of methamphetamine. In order to prove Zoeller's possession of at least five grams of methamphetamine with intent to deal, then, the State had to prove that Zoeller intended to combine the methamphetamine with the fentanyl.
As we discuss below, Zoeller's dealing in methamphetamine conviction required proof of an enhancing circumstance.
[14] Under Wadle , "a prosecutor cannot secure two convictions for the same act using the exact same evidence." Phillips , 174 N.E.3d at 647. Here, the State argued that Zoeller intended to combine the fentanyl with the methamphetamine for sale, and the same fentanyl was used to support both Zoeller's conviction for dealing in methamphetamine and his conviction for dealing in a narcotic drug. Thus, as charged and tried, Zoeller's dealing in a narcotic drug count was a factually included offense of his dealing in methamphetamine count. See id. Accordingly, we reverse Zoeller's conviction for Level 3 felony dealing in a narcotic drug and remand with instructions for the trial court to vacate that conviction. We now turn to Zoeller's contentions on appeal.
Issue One: Indiana Code Section 35-48-1-16.5
[15] Zoeller first contends that Indiana Code Section 35-48-1-16.5 is "unconstitutionally vague and overbroad." Appellant's Br. at 15. That statute provides in relevant part that an "enhancing circumstance" to support an elevated drug offense includes the manufacture or financing the manufacture of the drug. I.C. § 35-48-1-16.5. And the "manufacture" of a drug includes "any packaging or repackaging of the substance." I.C. § 35-48-1-18 (emphasis added).
[16] Here, the State alleged in relevant part that Zoeller had packaged the methamphetamine. Zoeller asserts that, "[a]s written, the statute fails to give adequate notice to an ordinary person of the prohibited conduct. It is unreasonable to assume that the packaging a drug was received in is the same packaging that can serve to enhance the recipients’ charges." Appellant's Br. p. 17. However, as the State points out, "generally[,] the failure to file a proper motion to dismiss raising a constitutional challenge waives the issue on appeal." Lee v. State , 973 N.E.2d 1207, 1209 (Ind. Ct. App. 2012). Zoeller did not file a motion to dismiss or otherwise raise this issue to the trial court and therefore the issue is waived.
[17] Waiver notwithstanding, Zoeller's contention is without merit. "We will affirm a statute's constitutionality against a vagueness challenge ‘if individuals of ordinary intelligence could comprehend it to the extent that it would fairly inform them of the generally proscribed conduct.’ " C.S. v. State , 8 N.E.3d 668, 677 (Ind. 2014) (quoting Klein v. State , 698 N.E.2d 296, 299 (Ind. 1998) ). Here, the challenged statutes’ wording is not confusing, and it plainly states that packaging drugs is prohibited conduct. Still, Zoeller asserts that it does not "make reasonable sense" to enhance a criminal offense based on the mere placing of a drug "within a container," but that contention does not go to the statute's constitutionality. Appellant's Br. p. 16. Rather, Zoeller merely disagrees with the legislature's decision to make packaging a drug an enhancing circumstance.
[18] The constitutionality of statutes is reviewed de novo. Conley v. State , 972 N.E.2d 864, 877 (Ind. 2012). "Such review is ‘highly restrained’ and ‘very deferential,’ beginning ‘with [a] presumption of constitutional validity, and therefore the party challenging the statute labors under a heavy burden to show that the statute is unconstitutional.’ " Id. (quoting State v. Moss-Dwyer , 686 N.E.2d 109, 111–12 (Ind. 1997) ). We hold that Zoeller has not met his burden to show that Indiana Code Section 35-48-1-16.5 is unconstitutional.
Issue Two: Sufficiency of the Evidence
[19] Zoeller next contends that the State presented insufficient evidence to support his conviction for dealing in methaphetamine. Our standard of review on a claim of insufficient evidence is well settled. We look only at the probative evidence and reasonable inferences supporting the verdict. Love v. State , 73 N.E.3d 693, 696 (Ind. 2017). We do not assess the credibility of witnesses or reweigh the evidence. Id. We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id.
Zoeller does not challenge the sufficiency of the evidence to support his conviction for resisting law enforcement.
[20] To prove Level 2 felony dealing in methamphetamine, as charged here, the State had to show that Zoeller possessed with intent to deliver at least five grams of methamphetamine and that an "enhancing circumstance" applied. I.C. § 35-48-4-1.1(e)(2). Here, again, the State alleged the enhancing circumstance of manufacturing, which is defined in relevant part as "any packaging or repackaging" of the methamphetamine. I.C. §§ 35-48-1-16.5(5), 35-48-1-18(1)(A).
[21] Zoeller first contends that the State did not prove that he manufactured, i.e., "packaged," the methamphetamine. He maintains that "[t]his case is identical to Hall [ v. State , 137 N.E.3d 279 (Ind. App. 2019),] in that the State's evidence of alleged ‘manufacture by packaging’ ... is based upon an officer's testimony about common practices within the drug trade." Appellant's Br. p. 13. That testimony, he argues, is " ‘too speculative to prove beyond a reasonable doubt’ that the drugs were packaged by Zoeller." Id. (quoting Hall , 137 N.E.3d at 283 ). We cannot agree.
[22] In Hall , Jennifer Hall and John Losson sold heroin to an undercover police officer. The State alleged that Hall was an accomplice to manufacturing heroin because, it alleged, Losson had packaged the heroin. Hall , 137 N.E.3d at 281. To prove that Losson had packaged the heroin, the State presented testimony that "the common practices of drug dealers in southern Indiana" included dividing drugs and placing them in baggies for sale. Id. at 283. And the undercover police officer testified that she "believed that Losson packaged the heroin" she had purchased. Id. (emphasis added). We held that that evidence, without more, was too speculative to prove that Losson had packaged the heroin. Id. And we stated that, even assuming that Losson had packaged it,
there was no evidence that Hall had any knowledge of how or when Losson packaged the heroin. There was no evidence that Losson had scales or baggies in Hall's presence or in the vehicle. The State only proved that Hall knew that Losson was dealing heroin to Agent Schumacher, and Hall was present during the crime and assisted Losson. This evidence is sufficient to support a Level 5 felony dealing conviction, but not the Level 4 felony dealing conviction requiring additional proof of manufacturing.
Id. (emphasis added).
[23] Here, in contrast, the State presented evidence that, in addition to multiple baggies of methamphetamine, Zoeller had a digital scale in his car. Detective Busick testified that dealers use scales "to repackage" drugs. Tr. Vol. 2 p. 136. Specifically, he explained that dealers "need to reweigh" the drugs to get the amounts correct and that "if they are cutting [a drug] with fentanyl or other items they need the ... scale to try to get a proper mix with a cut, again to make the best s[ale] they can." Id. at 136–37. And the State presented evidence that one baggie found in Zoeller's possession contained a mixture of methamphetamine and fentanyl, which supports a reasonable inference that Zoeller had packaged that adulterated methamphetamine for sale. Zoeller's contentions amount to a request that we reweigh the evidence, which we cannot do. The State presented sufficient evidence to prove the enhancing circumstance of "manufacturing" to support Zoeller's conviction for Level 2 felony dealing in methamphetamine.
[24] Zoeller next contends that the State presented insufficient evidence to prove that the amount of methamphetamine he possessed with an intent to deal was at least five grams. He maintains that, to prove the amount of methamphetamine, the State "improperly combined" the 3.21 grams of methamphetamine with the 2.28 grams of fentanyl to prove that he possessed more than five grams of methamphetamine. Appellant's Br. p. 19. He concedes that the .08 gram of adulterated methamphetamine which contained fentanyl was properly included in the total methamphetamine calculation. But he points out that fentanyl can be sold without mixing it with other drugs. In particular, he states that
[t]hese two substances are treated as separate by the legislature, by the scientific community, and in reality. The State's argument that the fentanyl should be included in the calculated aggregate weight of the methamphetamine as charged in Count[ ] 1 ... is outside the realm of the legislature's intent and this Court's interpretation of the term adulterated. Similar to [its] argument regarding manufacturing, the State is relying upon speculated "common practices" of drug dealers and drugs users. There was no evidence introduced at trial that Zoeller ever cut drugs or intended to cut these substances together. Even if such evidence existed, these substances were separate controlled substances at the time they were found in Zoeller's possession and [ ]at the time they were presented at trial.
Id. at 21 (emphasis added).
[25] In Buelna v. State , 20 N.E.3d 137, 143 (Ind. 2014), our Supreme Court reiterated that "the ‘total weight of the delivered drug and not its pure component’ should be considered" when proving the weight of a drug. (Quoting Tobias v. State , 479 N.E.2d 508, 511 (Ind. 1985) ). Buelna involved the defendant's possession of "solvent that contained methamphetamine," as he was in the process of cooking methamphetamine when he was arrested. Id. The Court observed that the State could "not rely upon the entire weight of the thirteen-gram sample taken from one of Buelna's reaction vessels to support his conviction for manufacturing more than three grams of methamphetamine." Id. at 146. However, the Court stated that "the State need not prove that Buelna completed the manufacturing process or produced a final product ... to sustain his conviction" on appeal." Id. The Court held that, "if the State relies on an unfinished chemical mixture to satisfy the three-gram enhancement, it must demonstrate how much final product a defendant's particular manufacturing process would have yielded had it not been interrupted by police or other intervening circumstances." Id.
[26] While not directly on point, Buelna is instructive here. The State presented evidence to support a reasonable inference that, but for his arrest, Zoeller would have cut the 3.21 grams of methamphetamine with the fentanyl to produce more than five grams of adulterated methamphetamine for sale. Detective Busick testified that a typical methamphetamine dealer cuts the methamphetamine with fentanyl because "it's cheap" and makes the methamphetamine "weigh more" for a bigger sale. Tr. Vol. 2 p. 135. He testified further that dealers use digital scales to cut fentanyl into other drugs for sale. While Detective Busick acknowledged that fentanyl can be sold on its own, he stated that "it's generally mixed with something else" because the "risk of death" is high with pure fentanyl. Id. at 141. And the State presented evidence that one of the baggies in Zoeller's possession contained a mixture of methamphetamine and fentanyl.
[27] Again, Zoeller's contentions amount to a request that we reweigh the evidence, which we cannot do. The State presented sufficient evidence to support a reasonable inference that Zoeller possessed at least five grams of methamphetamine to support his conviction for Level 2 felony dealing in methamphetamine. See, e.g. , Woodson v. State , 501 N.E.2d 409, 410 (Ind. 1986) (holding method of combining contents of 100 separate tin foil bindles before weighing total amount of adulterated heroin in defendant's possession was "entirely proper" where testing revealed mixture contained only 1.2% pure heroin).
Issue Three: Jail Clothing
[28] Finally, Zoeller contends that the trial court erred when it denied his motion to clothe his sole witness, Brandon White, in street clothes instead of his jail uniform. Zoeller maintains that forcing White to testify in a jail uniform constituted a denial of Zoeller's right to due process. We cannot agree.
[29] As Zoeller points out, the Supreme Court of the United States has held that compelling an accused to stand trial in identifiable jail or prison clothing is a due process violation. Estelle v. Williams , 425 U.S. 501 (1976). In support of his assertion that the same rule should apply to a defense witness, Zoeller acknowledges a lack of any Indiana case law and cites two cases from Minnesota. The first case Zoeller cites is an unpublished decision, which we will not consider. Ind. Appellate Rule 65(D). The second case Zoeller cites, State v. Lehman , 749 N.W.2d 76, 84 (Minn. Ct. App. 2008), provides in relevant part that Minnesota Rule of Criminal Procedure 26.03 prohibits an incarcerated defendant or witness from appearing in court in jail clothing. However, in Lehman , the court also observed that it is a due process violation " ‘if the State denies an accused ’s objection to being tried in such garb[.]’ " Id. (quoting Estelle , 425 U.S. at 517 ) (emphasis added). Thus, Lehman does not support Zoeller's contention that he was denied his right to due process here.
[30] In any event, the court ordered that Sheriff Miller provide White with "de[ ]cent jail clothing" to replace the jail clothes he was wearing, which had holes in it. Tr. Vol. 2 p. 185. And when White took the witness stand, the trial court admonished the jury as follows: "Members of the jury, ... you are not [to] place undue weight upon the appearance of Mr. White. You should weigh and consider his testimony as you would any other witness." Id. at 188. "We presume that the trial court's admonishment cured any potential harm." Jones v. State , 101 N.E.3d 249, 258 (Ind. Ct. App. 2018) (citing Green v. State , 587 N.E.2d 1314, 1317 (Ind. 1992) ) trans. denied. Zoeller has not shown that he was denied his right to due process.
Conclusion
[31] At trial, the State alleged and proved that Zoeller possessed the same methamphetamine to support his dealing in methamphetamine conviction and his possession of methamphetamine conviction (Counts I and II). Likewise, the State alleged and proved that Zoeller possessed the same fentanyl to support his dealing in narcotic drug conviction and his possession of narcotic drug conviction (Counts III and V). Because of the double jeopardy violations, we reverse Zoeller's convictions for Count II and Count V and remand with instructions to the trial court to vacate those two convictions. In addition, we reverse Zoeller's conviction of Level 3 felony dealing in a narcotic drug (Count III) and remand with instructions to the trial court to vacate that conviction. [32] Zoeller has waived for our review his contention that Indiana Code Section 35-48-1-16.5 is unconstitutionally vague and overbroad. Waiver notwithstanding, we hold that the statute is constitutional. We also hold that the State presented sufficient evidence to prove that Zoeller packaged the methamphetamine for sale and to prove that Zoeller possessed at least five grams of methamphetamine. Accordingly, we affirm Zoeller's conviction for Level 2 felony dealing in methamphetamine.
[33] Affirmed in part, reversed in part, and remanded with instructions.
Bailey, J., and Altice, J., concur.