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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: LEANNA WEISSMANN Lawrenceburg, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana NICOLE M. SCHUSTER Deputy Attorney General Indianapolis, Indiana

FILED
of the supreme court, court of appeals and tax court

Jun 07 2011, 9:30 am

IN THE COURT OF APPEALS OF INDIANA
JASON Q. DAUGHERTY, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

CLERK

No. 69A05-1011-CR-743

APPEAL FROM THE RIPLEY CIRCUIT COURT The Honorable Carl H. Taul, Judge Cause No. 69C01-0806-FB-4

June 7, 2011 MEMORANDUM DECISION - NOT FOR PUBLICATION VAIDIK, Judge

Case Summary Jason Q. Daugherty appeals his Class B felony conspiracy to manufacture methamphetamine conviction and accompanying fifteen-year sentence. We conclude that the trial court did not abuse its discretion in admitting a letter that Daugherty wrote a coconspirator from jail in which he discussed past and future methamphetamine activities under the knowledge exception to Indiana Evidence Rule 404(b) because Daugherty put his knowledge at issue. In addition, Daugherty has failed to persuade us that his fifteenyear sentence is inappropriate in light of his criminal history and the facts that he was on probation at the time he committed this offense, he was arrested for a drug offense while out on bond in this case, and he failed to show up for the last day of trial in this case because he was using methamphetamine. We therefore affirm the trial court. Facts and Procedural History On May 30, 2008, Department of Child Services worker Michelle Smoot went to Jamie Copelands rural Ripley County home to investigate a report that she did not seek appropriate medical treatment when one of her three children stepped on a nail. Indiana State Police Troopers Cameron McCreary and Terry Nickell accompanied Smoot to Jamies property. At the time, Daugherty and his girlfriend, Crystal Durham, were also living on the property in Daughertys camper. Daugherty and Crystal had access to Jamies house, often eating, showering, and doing their laundry there. Sometimes,

Daughertys four children visited him there. In fact, Daughertys children were there on May 30 when Smoot and the troopers showed up.

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As Jamie showed Trooper Nickell the area where her child had stepped on the nail, he noticed burnt aluminum foil and aerosol cans with holes popped out in the bottom in a trash pile between the house and the garage. In a burn pile, Trooper Nickell noticed a wad of partially burnt coffee filters and more cans with holes popped out in the bottom. Jamie consented to Trooper Nickell entering the garage. Inside the garage, Trooper Nickell observed an air tank with staining on its fittings consistent with anhydrous ammonia exposure, unopened syringes, a glass vial containing a white residue, a glass jar containing a clear liquid, a can of solvent, and cans of starter fluid. Trooper Nickell saw a letter addressed to Daugherty on top of a tool box. Trooper Nickell exited the garage and summoned Trooper Howard Ayres with the Indiana State Polices Methamphetamine Suppression Team to the property. Trooper Nickell also began to apply for a search warrant. In the meantime, Trooper Nickell asked Jamie for permission to search her purse, and he found methamphetamine inside. Jamie also executed a written consent to search her house. Troopers found methamphetamine and items used to manufacture

methamphetamine in the kitchen cabinet and Jamies bedroom closet. At this point, the search was suspended until a search warrant for all of the property, including the camper, was obtained and the Methamphetamine Suppression Team arrived. Further searches revealed additional items associated with a methamphetamine lab in the garage and in Jamies bedroom closet. On a table in Daughertys camper, they found pseudoephedrine pills and lithium batteries. Crystals purse, which was also in the

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camper, contained methamphetamine as well. arrested.

Daugherty, Crystal, and Jamie were

The State ultimately charged Daugherty with Class B felony manufacturing methamphetamine, Class D felony neglect of a dependent, Class D felony possession of methamphetamine, and Class B felony conspiracy to manufacture methamphetamine. A jury trial was held in 2010. Although Daugherty did not testify at trial, his defense was that he had no knowledge of the methamphetamine activities occurring on the property. See, e.g., Tr. p. 83 ("[Daugherty] didnt know what was going on. He didnt know what . . . Ms. Copeland was doing. He didnt know that theres parts of a meth lab sitting in her closet. Parts of a meth lab sitting in her barn. These items were not his. Its not his house. Its not his home."), 85 ("This case is not about finding my client guilty for being associated with people that manufactured methamphetamine. This case is not about my client being found guilty for associating with people that possessed methamphetamine.") . Both Crystal and Jamie, however, testified that Daugherty manufactured

methamphetamine in the garage and in his camper with their assistance. In line with this theory, the State offered into evidence several letters Daugherty wrote Jamie after his May 30, 2008, arrest. Daugherty made an Indiana Evidence Rule 404(b) objection. The trial court admitted into evidence only a small portion of one of the letters over Daughertys Rule 404(b) objection. Id. at 379. That letter provides: My Dude Mike got caught stealing Anhydrous from the CoOp rite up the road from the farmhouse. Me and him walk for hours some time talking about ways we cook. and he has learned me alot. little tricks, I will have to try. lol. and when we get out we are gonna have our selfs a little cook off. lol. 4

States Ex. 71A. The trial court found that this letter "show[ed] knowledge on the part of [Daugherty] which is an exception to Rule [404(b)]." Tr. p. 379. The State had made this very argument to the court. Id. at 372. After the jury retired for deliberations, it sent a note to the trial court asking, among other things, when States Exhibit 71A was written and whether Daugherty and Jamie were incarcerated at the time. The jury was instructed to refer to their notes for the first question but the second question could not be answered. Later, the jury informed the trial court that it had reached verdicts on two counts but an impasse on the other two. When the court inquired about the impasse, a juror explained that the jury was "hung up" on States Exhibit 71A, that is, it wondered how long ago Daugherty had actually cooked the methamphetamine. Id. at 485. In addition, "a lot of the members of the jury" could not take into consideration Crystals and Jamies testimony because they found them to be "unbelievable" or "uncredible." Id. The court explained that it could not do anything for the jury. The jury found Daugherty guilty of conspiracy to manufacture

methamphetamine and not guilty of possession of methamphetamine but hung on neglect of a dependent and manufacturing methamphetamine. Daugherty did not show up for the last day of trial and therefore missed the reading of the verdicts. A warrant was issued for his arrest. A sentencing hearing was later held. Daugherty, who was thirty-three years old at the time, testified that he started consistently using methamphetamine in 2006, which is when his criminal history also started to pick up. Daugherty testified that he knows how to cook meth and that he did so "[t]o feed [his] own habit pretty much." Id. at 497. 5

Daugherty testified that he still struggles with this habit "to this day" because he has never received treatment. Id. Daugherty admitted to being on probation at the time of this offense, committing a new offense while out on bond in this case, and not showing up for the last day of his trial because he "was using meth and was going to get high." Id. at 500. In addition, the State had filed seven petitions to revoke Daughertys probation, and he had a $30,000 child support arrearage. The trial court noted: The Court has reviewed the [PSI] and frankly, Mr. Daugherty theres not a lot in here that leads me to believe that uh probation is a good thing for you. I have to agree with [the State]. I am at somewhat of a loss as to why the probation department after seven (7) attempts at revoking your probation, seven (7) violations, they think that probation is a good idea. [W]hile Mr. Daughertys criminal history may not be all that severe it is lengthy and indicates . . . that along with the fact that he by his own admission never paid child support and is in arrears in some [$30,000] indicates he doesnt have a lot of respect for the authority of the Court or the legal system. I think in addition to the aggravating factors of the criminal history, the fact that he was on probation when he committed this offense; the fact that he was picked up [on] an additional charge while he was on bond on this charge are additional aggravating factors. . . . There was testimony in the trial, one additional thing that enters into the Courts consideration and I failed to mention. You indicated it was to feed your own habit yet the testimony in here was that you supplied at least three (3) other people with methamphetamine as a result of your operations. How many more, I dont know. Id. at 509-11. In its order, the trial court identified the following aggravators: (1)

Daughertys criminal history; (2) he was on probation when he committed this offense; and (3) he committed another offense while on bond for this offense. The court found no mitigating factors. The court sentenced Daugherty to fifteen years for Class B felony conspiracy to manufacture methamphetamine. Daugherty now appeals his conviction and sentence.

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Discussion and Decision Daugherty raises two issues on appeal. First, he contends that the trial court erred in admitting a portion of a letter he wrote Jamie while he was in jail. Second, he contends that his fifteen-year sentence is inappropriate. I. Admission of Jail Letter Daugherty first contends that the trial court erred in admitting the following portion of a letter he wrote Jamie while he was in jail: My Dude Mike got caught stealing Anhydrous from the CoOp rite up the road from the farmhouse. Me and him walk for hours some time talking about ways we cook. and he has learned me alot. little tricks, I will have to try. lol. and when we get out we are gonna have our selfs a little cook off. lol. States Ex. 71A. He argues that this letter is inadmissible pursuant to Evidence Rule 404(b) because it is "uncharged misconduct." Appellants Br. p. 4. He also argues that the letter shows his knowledge of how to make methamphetamine only after May 30, 2008, and "his knowledge after the crime does not bear on whether he knew how to make the drug when the crime was committed." Id. The admission or exclusion of evidence rests within the sound discretion of the trial court, and generally we review its rulings for an abuse of that discretion. Hinds v. State, 906 N.E.2d 877, 879 (Ind. Ct. App. 2009). An abuse of discretion occurs where the trial courts decision is clearly against the logic and effect of the facts and circumstances before it. Id. Evidence Rule 404(b) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity 7

therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . ." Evidence is excluded under Rule 404(b) when it is introduced to prove the "forbidden inference" of showing the defendants propensity to commit the charged crime. Clark v. State, 915 N.E.2d 126, 129-30 (Ind. 2009), reh'g denied. Evidence of extrinsic offenses poses the danger that the jury will convict the defendant because he is a person of bad character generally or has a tendency to commit crimes. Bassett v. State, 795 N.E.2d 1050, 1053 (Ind. 2003). The rationale for the prohibition against bad-act and character evidence is "predicated upon our fundamental precept that every defendant should only be required to defend against the specific charges filed." Oldham v. State, 779 N.E.2d 1162, 1173 (Ind. Ct. App. 2002), trans. denied; see also 12 Robert L. Miller, Jr., Indiana Practice: Indiana Evidence,

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