Court of Appeals of Indiana | Memorandum Decision 19A-CR-2978 | November 17, 2020 Page 1 of 13

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.

ATTORNEY FOR APPELLANT

Cara Schaefer Wieneke

Brooklyn, Indiana

ATTORNEYS FOR APPELLEE

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 Case No.

19A-CR-2978

Appeal from the Vigo Superior 

Court

The Honorable Michael J. Lewis, 

Judge

Trial Court Cause No.

84D06-1804-F2-1090

Altice, Judge.

Case Summary
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2978 | November 17, 2020 Page 2 of 13

[1] Terry G. Baugh appeals his conviction for dealing in methamphetamine, a 

Level 2 felony, challenging the sufficiency of the evidence. Baugh also claims 

that his convictions 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 Detectives Brian Bourbeau 

and James Palmer were conducting 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 the vehicle, was a habitual traffic 

offender, and did not have a driver’s license. They also learned that Baugh had 

been selling methamphetamine from this residence. 

[4] At some point, the detectives noticed that the truck was no longer parked in 

front of the Seventh Street residence. However, they saw 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 

the vehicle.

[5] The detectives arrested Baugh, searched him, seizing 2.99 grams of 

methamphetamine from his pants pocket. Baugh Jr. was also arrested after the 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-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 then returned to the Seventh Street residence and saw 

McCullough walk inside. McCullough allowed the detectives inside, and she 

told them that Joshua Baugh was also there. When performing a protective 

sweep, the detectives noticed a locked door to an upstairs apartment. Both 

Joshua and McCullough told the detectives that neither one of them had a key. 

[7] The detectives obtained a warrant to search the upstairs apartment. During the 

search, the detectives seized a bag from the bedroom that contained three 

smaller plastic bags with crystal-like substances that tested positive for 

methamphetamine. A forensic scientist determined that two of the bags 

contained a total of 36.73 grams of methamphetamine and the third bag 

contained a substance 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. Those 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. 
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a bill from January 2018 and a handwritten card with the name, “Terry G. 

Baugh,” that bore his date of birth and a social 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 pillowcase that matched the pillowcases 

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 

habitual 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, 
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manufacturing, keeping, offering for sale, selling, 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; the Defendant, number 2; knowingly or intentionally, 

Number 3; maintained a building, structure, vehicle, or other 

place, number 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 methamphetamine 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 maintaining 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 State failed to 
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show that he possessed the drug because the evidence “did not establish 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 reviewing a challenge to the sufficiency of the evidence, we consider only 

the probative evidence and reasonable inferences supporting the verdict. Drane 

v. State, 867 N.E.2d 144, 146 (Ind. 2007) (quoting 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 factfinder 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 

though Baugh did not actually 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 constructive 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 premises 
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on which an officer found the item. Gray v. State, 957 N.E.2d 171, 174 (Ind. 

2011); Ross v. State, 151 N.E.3d 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. Such 

“additional circumstances” 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 truck showed him resting his head on the 

same pillowcase next to the same curtains that were present when the police 

officers searched the apartment. Moreover, neither Joshua nor McCullough—

the other residents in the building—had a key to the upstairs apartment. 

[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. And while Baugh contends that the documents 

found in the apartment “could” have 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,” Appellant’s Brief 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, 
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1124 (Ind. Ct. App. 2017). Hence, the evidence 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 of methamphetamine and other items 

connected to drug dealing were seized, and there was no evidence that these 

items were hidden or difficult to locate. Hence, the documents were sufficiently 

mingled with the methamphetamine to support Baugh’s knowledge of the 

drugs’ location, as well as his intent to maintain “dominion or control” over 

them. 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 methamphetamine that was found in that 

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. 
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[22] Article 1, Section 14 of the Indiana Constitution provides that “no person shall 

be put in jeopardy twice 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 crimes 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 observed 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 Indiana 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 deciding 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 punishments. The Court explained that 

This framework, which applies when a defendant’s single act or 

transaction implicates multiple criminal statutes (rather than a 
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single statute), consists of a two-part inquiry: First, a court must 

determine, under our included-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 whether 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 included 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 the 

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 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 § 35-31.5-2-168. “If neither offense is an included offense of the 
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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. § 35-48-4-1.1, the elements required to prove dealing in 

methamphetamine as a Level 2 felony include a defendant’s (1) knowing or 

intentional; (2) possession with the intent to deliver; (3) methamphetamine; (4) 

in the amount of at least ten grams. The offense of maintaining a common 

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

or intentionally; (2) maintains a residence or vehicle; (3) that was used for the 

purpose of unlawfully using, keeping, selling, or delivering a controlled 

substance or drug paraphernalia. I.C. § 35-45-1-5(c). 

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

methamphetamine is included in the maintaining a common nuisance offense, 

we cannot agree, as each 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 supports the dealing charge, and the apartment he 

rented or the vehicle he used for the use or sale of the drugs supports the 

maintaining a common nuisance charge. The charging information for dealing 

in methamphetamine did not contain any reference to maintaining a building, 

structure, vehicle, or other place to unlawfully keep or sell methamphetamine. 

Therefore, under the included offense statute, neither the possession of the 

methamphetamine with the intent to sell it, nor maintaining a common 

nuisance, is an included offense of the other. 
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[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 facts 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.

[28] Baugh asserts that he cannot be convicted of 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 claim, the State 

presented evidence 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 offenses, 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 the 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 smaller portion of methamphetamine and three 

different cell phones. The jury could readily infer that Baugh was transporting

a portion of the methamphetamine that he stored in the apartment to sell, thus 
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satisfying the elements required to prove the offense of maintaining a common 

nuisance. 

[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-CR-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 

presented 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 show that his convictions on both 

offenses violated the prohibition against double jeopardy. 

[32] Judgment affirmed.

Riley, J. and May, J., concur.