Court of Appeals of Indiana | Memorandum Decision 19A

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### MEMORANDUM DECISION 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.

A TTORNEY FOR A PPELLANT Cara Schaefer Wieneke Brooklyn, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Josiah Swinney Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA
Terry G. Baugh , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. November 17, 2020 Court of Appeals Ca se No. 19A

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- 2978 Appeal from the Vigo Superior Court The Honorable Michael J. Lewis, Judge Trial Court Cause No. 84D06

- 1804

- F2

- 1090

A ltice , Judge . 

### Case SummaryCourt of Appeals of Indiana | Memorandum Decision 19A

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- 2978 | November 17, 2020 Page 2 of 13 [1] Terry G. Baugh appeals his conviction for d ealing in methamphetamine, a Level 2 felony, challenging the sufficiency of the evidence. Baugh also claims that his conviction s for dealing in methamphetamine and maintaining a common nuisance violate the prohibition against double jeopardy

.
[2] We affirm.


### Facts and Procedural History

[3] On March 29, 2018, Terre Haute Police Department Detective s Brian Bourbeau and James Palmer were co nducting surveillance of a residence on Seventh Street. The detectives patrolled the block, anticipating that a black Chevrolet S10 truck with an Illinois license plate parked near the residence would leave

. The detectives knew that Baugh owned th e vehicle , was a habitual traffic offender , and did not have a d river’s license. They also learned that Baugh had been selling methamphetamine from t his residence

.
[4] A t some point, the detectives noticed that the truck was no longer parked in front of the Seventh Street residence. However, they s aw Baugh driving the truck approximately ten blocks away . The detectives stopped the truck and ordered Baugh from the vehicle

. Baugh’s son, Terry Baugh Jr. (Baugh Jr.) , and Jessica McCullough , who were passengers in the truck, were also told to exit th e vehicle

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[5] The detectives arrested Baugh , searched him, seizing 2.99 grams of methamphetamine from his pants pocket

. Baugh Jr. was also arrested after theCourt of Appeals of Indiana | Memorandum Decision 19A

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- 2978 | November 17, 2020 Page 3 of 13 detectives saw him drop a bag at his feet that was determined to contain methamphetamine mixed with dimethyl sulfone. 1 McCullough was not charged with any criminal offenses and was permitted to leave.

[6] During an inventory search of the truck, the police seized three cell phones

. The detectives the n returned to the Seventh Street residence and saw McCullough walk inside

. McCullough allowed the detectives inside, and she told them that J oshua Baugh was also there

. Wh en performing a protective sweep , the detectives noticed a locked door to an upsta irs apartment. Both Joshua and McCullough told the detectives that neither one of them had a k ey
.
[7] The detectives ob tained a warrant to search the upstairs apartment. During the search, the detectives seized a bag from the bedroom that contained t hree smaller plastic bags with crystal

- like substances that tested positive for methamphetamine

. A forensic scientist determine d that two of the bags contained a total of 36.73 grams of methamphetamine and the third bag contained a substan ce weighing 8.45 grams. 2 The methamphetamine had a street value of approximately $4,000.

[8] The detectives also seized a scale , some empty plastic bags, and various documents addressed to Baugh from the apartment

. Th ose documents included

1 Dimethyl sulfone is a commonly used anti

- inflammatory agent that is a non - controlled substance

. 2 The third bag, weighing 8.4 grams was not tested, as the aggregate net weight of the other two bags that tested positive for methamphetamine exceeded “any statutory or any legal limit for legal purposes.” Transcript Vol. III at 81.Court of Appeals of Indiana | Memorandum Decision 19A

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- 2978 | November 17, 2020 Page 4 of 13 a bill from Ja nuary 2018 and a handwritten card with the name, “Terry G. Baugh,” that bore his d ate of birth and a s ocial security number

. Transcript Vol. III at 44, 46. They also discovered a rent receipt dated March 7, 2018 , with Baugh’s name on it. One of the detectives testified that “[n] othing was located in [the] upstairs apartment that belonged to anyone , [ other than Baugh ]

. ” Id. at 69.

[9] A photo on one of the phones that the police had seized from Baugh’s truck showed him sleeping on a bed with a pillowca se that matched the pi llowcases on the bed in the upstairs apartment

. The picture also showed the “same curtain” that was hanging in the apartment when the detectives executed the
warrant

. Id.

[10] On April 4, 2018, the State charged Baugh with dealing in methamphetamine, a Level 2 felony, possession of methamphetamine, a Level 3 felony, maintaining a common nuisance, a Level 6 felony, and operating a vehicle as a habitual traffic violator, a Level 6 felony. The State also alleged that Baugh was a habitua l offender.

[11] Following the presentation of evidence at Baugh’s jury trial on August 26, 2019, the trial court gave the following instruction regarding the offense of maintaining a common nuisance: The Crime of Maintaining a Common Nuisance as charged in Count 3 is defined by law as follows: A person who knowingly or intentionally maintains a building, structure, vehicle, or other place that is used for the purposes of unlawfully using,Court of Appeals of Indiana | Memorandum Decision 19A

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- 2978 | November 17, 2020 Page 5 of 13 manufacturin g, keeping, offering for sale, se lling, delivering or financing the delivery of a controlled substance or an item of drug paraphernalia. To convict the Defendant, the State must have proved each of the following beyond a reasonable doubt: Number 1; t he Def endant, n umber 2; knowingly or intentionally, Number 3; maintained a building, structure, vehicle, or other place, n umber 4; that was used for the purpose of unlawfully using, manufacturing, keeping, offering for sale, selling, delivering or financing the delivery of a controlled substance or item of drug paraphernalia.

Id. at 166

- 67. Baugh was found guilty as charged and was determined to be a habitual offender. At the sentencing hearing on November 21, 2019, the trial
court merged the possession of met hamphetamine count into the dealing count and sentenced Baugh to twenty years of incarceration . The trial court enhanced the sentence by ten years in light of the habitual offender finding

.
[12] Baugh was also sentenced to one

- and

- one - half years on the maint aining a common nuisance and habitual traffic offender counts. Those sentences were ordered to run concurrently with each other and with the sentence that was imposed on the dealing count , resulting in an aggregate thirty

- year term of incarceration

. Baugh now appeals

.


### Discussion and Decision
I. Sufficiency of the Evidence
[13] Baugh claims that the evidence was insufficient to support his conviction for dealing in methamphetamine

. His sole contention is that the S tate failed toCourt of Appeals of Indiana | Memorandum Decision 19A

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- 2978 | November 17, 2020 Page 6 of 13 show th at he possessed the drug because the evidence “ did not e stablish that he had either the intent or the capability to maintain dominion and control over an upstairs apartment where the methamphetamine was discovered.” Appellant’s Brief at 8.

[14] When reviewin g a challenge to the sufficiency of the evidence , we consider only the probative evidence and reasonable inferences supporting the verdict. D rane v. State, 867 N.E.2d 144, 146 (Ind. 2007) (q uoting McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)) , trans. denied

. We will not assess witness credibility or weigh the evidence to determine whether it is sufficient to support a conviction

. Casey v. State, 676 N.E.2d 1069, 1072 (Ind. Ct. App. 1997). We will affirm the conviction unless no reasonable fac tfinder could find the element of the crime proven beyond a reasonable doubt. Drane, 867 N.E.2d at 146

- 47.

[15] While Baugh argues that the evidence failed to show that he possessed the methamphetamine seized from the upstairs apartment, we note that even th ough Baugh did not actual ly possess the drugs, constructive possession of the contraband may support a conviction for a drug offense. Goliday v. State , 708 N.E.2d 4, 6 (Ind. 1999). To prove c onstructive possession, the State must show that the defendant had both the intent to maintain dominion and control over the drugs, as well as the capability to do so. Id. The factfinder may infer that a defendant had the capability to maintain dominion and control over contraband from the simple fact that the defendant had a possessory interest in the premisesCourt of Appeals of Indiana | Memorandum Decision 19A

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- 2978 | November 17, 2020 Page 7 of 13 on which an officer found the item. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011); Ross v. State, 151 N.E. 3 d 1287, 1291 (Ind. Ct. Ap. 2020).

[16] When a defendant’s possessory interest in the premises is non - exclusive, intent is established by evidence of additional circumstances pointing to the defendant’s knowledge of the drugs’ presence
. Gray, 957 N.E.2d at 175. Su ch “additional cir cumstances” include the mingling of contraband with other items the defendant owns or other circumstances that may just as reasonably demonstrate the requisite knowledge. Id.

[17] In this case, the evidence demonstrated that the upstairs apartment contained only Baugh’s personal property that included mail addressed to him and a handwritten card that accurately reflected Baugh’s birth date. Additionally, the photo from a phone found in Baugh’s truc k showed him resting his head o n the same pillowcase next t o the same curtains that were present w hen the police officers searched the apartment

. Moreover, neither Joshua nor McCullough

— the other residents in the building

— had a key to the upstairs apartme nt.

[18] Contrary to Baugh’s assertions, this evidence renders the possibility that someone else absconded with Baugh’s documents and stored them in the apartment extremely remote. A nd while Baugh contends that the documents found in the apartment “could” h ave referred to Baugh’s son, and that it would be “unusual for a person to carry around a card as a reminder of his own birthdate,” A ppellant’s B rief at 13 , those arguments are requests for this court to reweigh the evidence, which we cannot do. Purvis v. State, 87 N.E.3d 1119,Court of Appeals of Indiana | Memorandum Decision 19A

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- 2978 | November 17, 2020 Page 8 of 13 1124 (Ind. Ct. App. 2017). Hence, the e vidence established that Baugh had an exclusive possessory interest in the upstairs apartment.

[19] The State further established that the documents belonging to Baugh were found in the vicinity where the three bags o f methamphetamine and other items connected to drug dealing were seized, and there was no e vidence that the se items were hidden or difficult to locate. Hence, the d ocuments were sufficiently mingled w ith the m ethamphetamine to support Baugh’s knowledge of the drugs’ location , as well as his intent to maintain “dominion or control” over the m. See , e.g., Watt v. State , 412 N.E.2d 90, 98 (Ind. Ct. App. 1980) (affirming the defendant’s conviction for possession of marijuana where the evidence showed that the drugs were found in the defendant’s dresser drawer).

[20] In conclusion, the State proved that Baugh had a possessory interest in the upstairs apartment, and the evidence established his intent to maintain dominion and control over the meth amphetamine that was found in th at apartment. For all of these reasons, the evidence was sufficient to show that Baugh was in constructive possession of the methamphetamine , and his challenge to the sufficiency of the evidence on this basis, fails.

II. Double Jeopardy

[21] Baugh claims that his convictions for dealing in methamphetamine and maintaining a common nuisance cannot stand because a conviction on both
counts violates the prohibition against double jeopardy under the Indiana Constitution

.Court of Appeals of Indiana | Memorandum Decision 19A

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- 2978 | November 17, 2020 Page 9 of 13 [22] Article 1, Section 14 of the Indiana Constitution prov ides that “ no person shall be put in jeopardy tw ice for the same offense.” While this case was pending on appeal, our Supreme Court expressly overruled the test set forth in Richardson v. State, 717 N.E.2d 32 (Ind. 1999) , when resolving claims of substantive double jeopardy. The Richardson court recognized that “two or more offenses are the ‘same offense’ in violation of [Indiana’s Double Jeopardy provision] if, with respect to either the statutory elements of the challenged c rimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.” Id. at 49 (emphasis in original).

[23] In Wadle v. State, the Court o bserved that the Richardson tests “have proved largely untenable, ultimately forcing the Court to retreat from its all

- inclusive analytical framework. What we’re left with today is a patchwork of conflicting precedent and inconsistent standards, ultimately depriving the I ndiana bench and bar of proper guidance in this area of the law.” 151 N.E. 2d 227, 235 (Ind. 2020). In overruling Richardson , the Court in Wadle adopted an analytical framework that applies statutory rules of construction. Wadle observed that when de cidi ng whether a single criminal transaction violates multiple statutes with common elements, the first step is to examine the statutory language for each offense to determine whether the language of either statute expressly or impliedly permits multiple puni shments. The C ourt explained that This framework, which applies when a defendant’s single act or transaction implicates multiple criminal statutes (rather than aCourt of Appeals of Indiana | Memorandum Decision 19A

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- 2978 | November 17, 2020 Page 10 of 13 single statute), consists of a two

- part inquiry: First, a court must determine, under our i ncluded

- offense statutes, whether one charged offense encompasses another charged offense. Second, a court must look at the underlying facts

— as alleged in the information and as adduced at trial

— to determine w hether the charged offenses are the ‘same.’
If the facts show two separate and distinct crimes, there’s no violation of substantive double jeopardy, even if one offense is, by definition, ‘included’ in the other. But if the facts show only a single continuous crime, and one statutory offense is incl uded in the other, then the presumption is that the legislation intends for alternative (rather than cumulative) sanctions.

Id. at 235

. [24] In this case, the State concedes

— and we agree

— that neither the dealing statute nor the maintaining a common nuisance statute permits multiple punishment. Thus, when applying the appropriate framework to the facts and circumstances here, we next determine whether either offense is an included offense of th e other. As defined by our legislature, an included offense is one 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,” (2) “consists of an a ttempt 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 culp ability, is required to establish its commission.” Ind. Code § 35

- 31.5

- 2

- 168. “If neither offense is an included offense of theCourt of Appeals of Indiana | Memorandum Decision 19A

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- 2978 | November 17, 2020 Page 11 of 13 other (either inherently or as charged), there is no violation of double jeopardy.” Wadle, 151 N.E.2d at 248.

[25] Pursuant to I.C. § 35

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- 1.1, the elements required to prove dealing in methamphetamine as a Level 2 felony include a defendant’s (1) knowing o r intentional; (2) possessi on with the intent t o deliver; (3) methamphetamine; (4) in the amount o f at least ten grams. Th e offense of m aintaining a c ommon

n uisance is committed when the State proves that the defendant: (1) knowingly

o r intentionally; (2) maintain s a residence or vehicle; (3) that was used for the purpose o f unlawfully using, keeping, selling, o r delivering a controlled substance o r drug paraphernalia. I.C. § 35

- 45

- 1

- 5(c)

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[26] While Baugh would have us conclude that the greater offense of dealing in

m ethamphetamine is included in the maintaining a common nuisance offense,

we cannot agree, as e ach of these offenses is separate and distinct. More specifically, Baugh’s possession of more than ten grams of methamphetamine with the intent to sell it suppor ts the dealing charge , and the apartment he rented or the vehicle he used for the use or sale of the drugs su pports the maintaining a common nuisance charge. The charging information for dealing in methamphetamine did not contain any reference to maintain ing a building, structure, vehicle, or other place to unlawfully keep or sell methamphetamine. Th erefore, under the i ncluded offense statute, neither the po ssession of the methamphetamine with the intent to sell it , nor maintaining a common nuisance , is an included offense of the other.Court of Appeals of Indiana | Memorandum Decision 19A

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- 2978 | November 17, 2020 Page 12 of 13 [27] We also reject Baugh’s claim that he was wrongfully convicted of committing the “same offense,” under the “very same act ” or “single transaction test

. ” See Appellant’s Reply Brief at 6. This test applies when the f acts reveal only one continuous crime and the defendant’s actions were “so compressed in terms of time, place, singleness of purpose and continuity of action as to constitute a single transaction.” Wadle, 151 N.E. 2d at 249

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[28] Baugh asserts that he cannot b e convicted o f both offenses because the only evidence the State presented to show that he maintained a common nuisance was “ the methamphetamine in his home and in his vehicle. ” Appellant’s Reply Brief at 6 (emphasis added). Notwithstanding Baugh’s clai m, the State presented e vidence and facts of each offense that were not material to the other

. For instance, although Baugh contends that the methamphetamine seized from his apartment established the basis for both offense s , the State offered ample evidence demonstrating that Baugh was conducting an ongoing methamphetamine sales operation with the use of his vehicle.

[29] Baugh possessed nearly forty grams of methamphetamine, a scale, and empty plastic bags in his apartment. The detectives testified that th e large amount of the drug, along with the other items that were seized, was indicative of dealing in the substance rather than possessing it for personal use. Baugh left the residence in his truck with a smalle r portion of methamphetamine and three different cell phones. The jury could readily infer that Baugh was transport ing

a portion of the methamphetamine that he stored in the apartment to sell, th usCourt of Appeals of Indiana | Memorandum Decision 19A

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- 2978 | November 17, 2020 Page 13 of 13 satisfying the elements required to prove the offense of maintaining a common nuisance

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[30] Given this evidence, it is only speculation that the methamphetamine seized from Baugh’s apartment was important in establishing the elements necessary to prove the maintaining a common nuisance offense. See, e.g., Rowland v. State, No. 19A

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- 2761, slip op. at 8, (Ind. Ct. App. September 8, 2020) ( finding no double jeopardy violation and affirming the defendant’s convictions for both possession of marijuana and possession of paraphernalia when the State p resented evidence that marijuana found in the pipes was separate and distinct from the additional marijuana found in the vehicle )

. In short, the State proved that Baugh committed two distinct criminal acts.

[31] For all these reasons, Baugh has failed to sho w that his convictions on both offenses violated the prohibition against double jeopardy.

[32] Judgment affirmed.

Ri ley, J. and May, J., concur.