## FOR PUBLICATION

A TTORNEY FOR A PPELLANT : 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. 4 0C01

- 1207

- FD

- 154

October 10, 2013

OPINION
- FOR PUBLICATION
CRONE, Judge2 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
R oush and her boyfriend, Jared Bonds, were hanging out with Gifford and Gifford’s father, Denver, at Gifford’s house in Jennings County. Gi fford suggested that the group travel to Jefferson County to “get boxes” of pseudoephedrine. Tr. at 119. The plan w as 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 ha d 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 Walma rt. He watch ed as Gifford and another man went into the store and saw them purchase lithiu m batt eries. The group left Walmart and drove3

into Jennings County , where the van was stopped by uniform ed officers for a traffic infraction

. Denver, who was drivi ng, 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 batterie s 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 t hem 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 manuf acture a controlled substance. Following a trial, the jury found Gifford guilty a s 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. Mathew s 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 each4

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 f elony 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 possesse d two or more chemical reagents or
precursors , specifically pseudoephedrine and lithium metal , 1 “ with the intent to manufacture ” methamphetamine. See Ind. Code § 35

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- 14.5(e). On appeal, Gifford claims that the State presented in sufficient evidence re garding 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 conced es 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 an other panel of this Court has interpreted the identical language “with the intent to manufacture ” methamphetamine in an analogous provision of I ndiana Code Section 35

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- 14. 5 to require pro of that the person charged with possession must personally have t he 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 l ithium metal are both listed as chemical reagents or precursors. See Ind. Code § 35

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- 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.5

analyzed that portion of the statute providing that “ [a] person who possesses anhydrous ammonia ... with the intent to ma nufacture methamphetamine” commits a class D felony. Ind. Code § 35

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- 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 ha ve the personal intent to manufacture methamphetamine. Prater , 922 N.E.2d at 750. Acknowledging the clear applicability of our decision in Prater , t he State urges that
Prater was decided erroneously and that we should reexa mine the language “with the i ntent to manufacture” and determine that our legislature intende d to criminalize mere possession of chemical reagents or precursors even absent personal inten t to manufacture a controlled substance . We believe that the plain language of the statute is cle ar , 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

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- 14 .5 (e), we reverse his convi ction. 3 Reversed. BARNES, J., and PYLE, J., concur.

3 T he 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 p ersonally manufacture methamphetamine. However, as stated above, ther e was no evidence presented that Gifford intended to persona lly manufacture methamphetamine.