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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: NITA DAVIDSON-SCHLETER Fort Branch, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana JUSTIN F. ROEBEL Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
HUEY R. SEALE, JR., Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 26A01-0604-CR-132

APPEAL FROM THE GIBSON CIRCUIT COURT The Honorable Walter H. Palmer, Judge Cause No. 26C01-0503-FA-4

November 27, 2006 MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge

Case Summary Huey Seale, Jr., appeals his convictions and sentence for Class A felony dealing in methamphetamine, Class A felony manufacturing methamphetamine, Class D felony possession of anhydrous ammonia with intent to manufacture methamphetamine, and Class D felony dumping of controlled substance waste. We affirm in part, reverse in part, and remand. Issues The issues before us are: I. whether the trial court properly denied Seale's motion to suppress; whether the prosecutor conducted improper voir dire; whether there is sufficient evidence to support Seale's convictions; and whether his sentence is proper. Facts The evidence most favorable to the convictions reveals that in early 2005, Seale lived in a trailer in Francisco where he manufactured methamphetamine, described as being of "awesome" quality, on an almost daily basis. Tr. p. 562. He had a group of several people in their late teens or early twenties who essentially lived at the trailer, smoked methamphetamine that Seale made, and assisted Seale in obtaining precursors such as pseudoephedrine and lithium batteries and/or in dealing the finished product. He called this group his "family" or "children" and gave them methamphetamine for free. Id. at 502, 542. Seale performed the initial "cooking" of the methamphetamine in a 2

II. III.

IV.

dilapidated trailer near the trailer he lived in, and would finish "smoking off" the drug in the kitchen of the lived-in trailer. Id. at 547, 550. He disposed of some of the leftover waste from the manufacturing process, such as the battery remnants, in a burn pile outside the trailers. Elementary School. In mid-February 2005, Seale advised his "family" that they needed to move to a house in Oakland City because it was too "dangerous" to continue staying at the trailer. Id. at 572. Seale claimed to be renting this particular house. However, the circumstances of how, why, or even if Seale actually came to rent this house are unclear. Jay Wiggs had been living at the house for over a decade, but was incarcerated in the Gibson County Jail beginning in January 2005, and he would remain there for one year serving a sentence. Wiggs' girlfriend, Misty Bolden, had Wiggs' permission to continue living at the house, but he had not given her permission to rent the house out to anyone. Seale delivered meth to his "family" at the Oakland City house on essentially a daily basis. Wiggs began hearing rumors while in jail that a number of unidentified people regularly were going in and out of his house and possibly were stealing items from it. He contacted a police officer and asked that the house be searched and that anyone, aside from Bolden and her children, be removed from it. Wiggs filled out a statement giving his consent for a search of the house. On March 17, 2005, police searched the house and found a number of people there besides Bolden and her children. One of these persons, Skye Thomas, was arrested for possession of methamphetamine; Seale had delivered it to her at the house earlier that day. The Oakland City house was 3 This location was less than 1000 feet away from Francisco

less than 1000 feet away from property owned and utilized by the East Gibson School Corporation. Based on information provided by Thomas, police obtained a search warrant for Seale's property in Francisco. In the lived-in trailer, police found a firearm and many indicia of methamphetamine manufacturing, including pills containing pseudoephedrine, muriatic acid, salt, a scale, gloves, batteries, camp fuel, and HEET, which contains methyl alcohol. Outside of the trailer was a burn pile where police found battery

remnants, pill packs, and cans that had contained ether. In the dilapidated trailer was, among other things, a plastic jug containing acid. Leading from this trailer was a wellworn path going to a wooded area where there were some coolers that smelled of ammonia; one of these coolers contained an anhydrous ammonia solution. Parked near the dilapidated trailer was a pickup that was registered to Seale. Police found several coolers in the vehicle, one of which tested positive for the presence of methamphetamine and pseudoephedrine or ephedrine. The State charged Seale with Class A felony dealing methamphetamine within 1000 feet of school property, Class A felony manufacturing methamphetamine within 1000 feet of school property, Class C felony possession of a firearm and anhydrous ammonia with intent to manufacture methamphetamine, Class D felony dumping of controlled substance waste, Class D felony possession of anhydrous ammonia with intent to manufacture methamphetamine, Class D felony possession of precursors with intent to manufacture methamphetamine, and Class A misdemeanor illegal storage of ammonia. Seale filed a motion to suppress the evidence recovered during the search of his property, 4

which the trial court denied. During Seale's jury trial held on January 9-11, 2006, the State dismissed the firearm, possession of precursors, and illegal storage of ammonia charges. The jury found Seale guilty of the remaining charges. The trial court sentenced Seale to an aggregate term of thirty-two years. He now appeals. Analysis I. Motion to Suppress Seale first challenges the denial of his motion to suppress. Specifically, he

contends that the initial search of Wiggs's house in Oakland City was illegal, and that the eventual search of his property in Francisco, based on information gleaned as a result of the Oakland City search, necessarily also is illegal. At trial, however, Seale never objected to the introduction of any evidence recovered during either the search in Oakland City or the search in Francisco. A defendant must renew his or her objection to the admission of evidence at trial if the trial court previously denied a motion to suppress evidence or took the motion under advisement. McClure v. State, 803 N.E.2d 210, 212 (Ind. Ct. App. 2004), trans. denied. If the moving party does not object to the evidence at trial, any claim of error is waived. Id. Waiver notwithstanding, Seale's claim of error fails. When reviewing the denial of a motion to suppress, we do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court's ruling. Id. at 212-13. "However, unlike the typical sufficiency of the evidence case where only the evidence favorable to the judgment is considered, we must also consider uncontested evidence favorable to the defendant." Id. 5

Seale claims Wiggs did not actually own the house in Oakland City that he asked police to search and, therefore, he lacked authority to consent to the search. A valid consent to search may be given by either the person whose property is to be searched or by a third party who has common authority over or a sufficient relationship to the premises to be searched. Norris v. State, 732 N.E.2d 186, 188 (Ind. Ct. App. 2000). Establishing actual authority to consent to a search requires a showing that there is a sufficient relationship to or mutual use of the property by persons generally having joint access or control for most purposes. Krise v. State, 746 N.E.2d 957, 967 (Ind. 2001). "If actual authority cannot be shown, then facts demonstrating that the consenting party had apparent authority to consent could prove a lawful search." Id. The State bears the burden of proving authority to consent. Id. Seale notes that the State presented no evidence that the Oakland City house was titled in Wiggs's name. Rather, it appears the house was titled in the name of Wiggs's father, who died sometime before 2005. Wiggs claimed to have inherited the house after his father's death, but there was no evidence presented of a will or other estate settlement through which Wiggs inherited the house; his father had a spouse, Wiggs's stepmother, who survived him. Even if there is a lack of conclusive evidence that Wiggs owned the house, however, this is not dispositive on the question of authority to consent to a search. Our supreme court has explained: Common authority is not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent rests on the 6

mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that each of the co-inhabitants has the right to permit the inspection in his or her own right and that the others have assumed the risk that one of their number might permit the common area to be searched. Brown v. State, 691 N.E.2d 438, 443 (Ind. 1998) (citations omitted). This court has also held that a party either has actual authority to consent to a search, through common control of a premises, or he or she does not. Primus v. State, 813 N.E.2d 370, 376 (Ind. Ct. App. 2004). "The physical location of the person giving consent is irrelevant." 1 Id. The evidence most favorable to the denial of the motion to suppress reveals that Wiggs had lived at the Oakland City house continuously since at least the early 1990s. The Oakland City police officer who spoke to Wiggs about searching the house personally knew that Wiggs lived there. He paid the utilities for the house and his stepmother continued paying the utilities for Wiggs, using his money, while he was in jail. All of this evidence put together indicates that Wiggs had actual, common authority over the house such that he could consent to a search of it, despite the unusual circumstance of his not physically living in the property at the time. Wiggs's situation can be analogized to a person who is hospitalized or who is out-of-town on a long-term vacation, but who nonetheless has a permanent residence elsewhere and possesses actual authority to consent to a search of that property. The trial court did not err in denying Seale's motion to suppress.

As we observed in Primus, physical location may be relevant if it is necessary to determine whether a person had apparent, as opposed to actual, authority to consent to a search. Primus, 813 N.E.2d at 376.

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II. Voir Dire Next, we address Seale's claim that the prosecutor conducted improper voir dire of the jury pool. A trial court has broad discretion to regulate the form and substance of voir dire. Perryman v. State, 830 N.E.2d 1005, 1007-08 (Ind. Ct. App. 2005). The function of voir dire examination is not to educate jurors, but rather is to ascertain whether jurors can render a fair and impartial verdict in accordance with the law and the evidence. Id. at 1008. Jurors may be examined to eliminate bias but not to condition them to be receptive to the questioner's position. Id. "At the same time, the court must afford each party a reasonable opportunity to exercise its peremptory challenges intelligently through inquiry." Id. Proper examination, therefore, may include questions designed to disclose the jurors' attitudes about the type of offense charged. Id. Seale, however, lodged no objection to any questions the prosecutor asked during voir dire. This results in waiver of the issue on appeal. Stevens v. State, 691 N.E.2d 412, 420 (Ind. 1997), cert. denied, 525 U.S. 1021, 119 S. Ct. 550 (1998). Seale attempts to avoid waiver by claiming fundamental error. The fundamental error exception to the waiver rule is extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process. Purifoy v. State, 821 N.E.2d 409, 412 (Ind. Ct. App. 2005), trans. denied. "The mere fact that error occurred and that it was prejudicial will not satisfy the fundamental error rule." Id. On several occasions, the prosecutor asked prospective jurors, "What do you think the biggest problem in this county is?" Tr. p. 71. A number of prospective jurors 8

answered that they believed illegal drugs were Gibson County's biggest problem. Seale argues that this type of questioning violates our holding in Perryman. There, we held it constituted reversible error for the prosecutor to ask prospective jurors whether they agreed that illegal drugs were a major problem in the county. 2 Perryman, 830 N.E.2d at 1010. Here, unlike in Perryman, the prosecutor did not "lead" prospective jurors into answering, yes or no, whether they thought illegal drugs were a societal problem. Also, the questions the prosecutor in Perryman asked were framed in such a way as to presume that drugs were a serious problem, because he asked whether the prospective jurors "agreed" that they were a problem. Instead, the prosecutor here asked an open-ended question that permitted potential jurors to provide their own answers as to what they believed Gibson County's biggest problem to be. It is not apparent to us that such questioning was an illegitimate way for the State to determine potential jurors' attitudes about the type of offenses charged here. Certainly, we cannot say that such questioning amounted to fundamental error. We decline to reverse Seale's convictions on this basis. 3 III. Sufficiency of the Evidence Next, Seale argues, for various reasons, that there is insufficient evidence to support his convictions. When reviewing a claim of insufficient evidence, we neither

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The defendant in Perryman objected to the prosecutor's voir dire questions.

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Seale asserts in his statement of the issues and in a one-sentence argument that the prosecutor also committed misconduct during closing argument for making a reference to the societal problem of drug use. Seale's failure to develop this contention with any citation to authority related to closing arguments waives the issue for our review. See Ind. Appellate Rule 46(A)(8)(a); Lyles v. State, 834 N.E.2d 1035, 1050 (Ind. Ct. App. 2005), trans. denied.

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reweigh the evidence nor judge the credibility of witnesses. Trimble v. State, 848 N.E.2d 278, 279 (Ind. 2006). "If there is sufficient evidence of probative value to support the conclusion of the trier of fact then the verdict will not be disturbed." Id. We first address Seale's contention that the testimony of several of the State's witnesses, specifically those who testified that they observed Seale's methamphetamine activity first-hand, was incredibly dubious. "We will not impinge upon the jury's

resolution with regard to the credibility of witnesses unless confronted with testimony of inherent improbability, or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity." Kien v. State, 782 N.E.2d 398, 407 (Ind. Ct. App. 2003), trans. denied. A conviction will be overturned only if a witness' testimony is so incredibly dubious or inherently improbable that it runs counter to human experience, and no reasonable person could believe it. Id. This exception is applied only where a single witness testifies against the defendant. Id. As indicated, not one, but several, witnesses related their observation of Seale's methamphetamine-related activities. Much of Seale's argument is that their testimony was inconsistent with each other's, regarding details such as who helped Seale deal the drug and when or if people injected versus smoked the drug in Seale's trailer. However, "the standard for dubious testimony is inherent contradiction, not contradiction between witnesses' testimony." Altes v. State, 822 N.E.2d 1116, 1123 (Ind. Ct. App. 2005), trans. denied. In any event, the testimony of these witnesses largely was consistent with respect to describing Seale's manufacturing of methamphetamine in Francisco, his frequent deliveries of the drug to Oakland City, and his method of giving free methamphetamine 10

to persons whom he would recruit to help him either by buying precursors or by selling the finished product. Additionally, the fact that these witnesses were given use immunity for their testimony does not render their testimony incredibly dubious, but was a factor for the jury to consider in determining their credibility. See Murray v. State, 761 N.E.2d 406, 409 (Ind. 2002) (discussing testimony given in exchange for plea agreement with State). Likewise, any inconsistencies between any of the witnesses' trial testimony and pretrial statements they might have given were for the jury to weigh, and does not necessarily render any trial testimony incredibly dubious. See id. Finally, the witnesses' testimony as a whole clearly, unequivocally, and sufficiently describes Seale's manufacturing of methamphetamine at the trailers in Francisco, which is corroborated by the substantial evidence of methamphetamine manufacturing that police found in and around the trailers. Seale also specifically challenges the sufficiency of the evidence that he dealt methamphetamine at the Oakland City house on March 17, 2005 and, therefore, within 1000 feet of school property. Skye Thomas was arrested for possession of

methamphetamine at the house on that date when police searched the house pursuant to Wiggs's consent. Thomas testified, twice, that Seale had brought the methamphetamine to her at the house earlier that day. Seale posits that because Thomas also testified that she had gone out to breakfast with him that day and because she intimated that her heavy drug usage at that time could have affected her memory, it is possible that she received the methamphetamine at the restaurant instead of the house. Thomas's testimony,

however, clearly was that she received it at the house, which certainly would make more 11

sense than her receiving it in a public place. There is sufficient evidence that Seale dealt methamphetamine at Wiggs's Oakland City house on March 17, 2005. Seale additionally argues that there is insufficient evidence that either his dealing in Oakland City or his manufacturing in Francisco occurred within 1000 feet of school property as required to elevate his convictions to Class A felonies. See Ind. Code

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