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FOR PUBLICATION

ATTORNEY FOR APPELLANT: KENNETH R. MARTIN Goshen, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana MATTHEW D. FISHER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
ROBERT D. STOREY, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 20A03-0607-CR-317

APPEAL FROM THE ELKHART CIRCUIT COURT The Honorable Terry C. Shewmaker, Judge Cause No. 20C01-0307-FA-139

October 22, 2007 OPINION - FOR PUBLICATION

VAIDIK, Judge

Case Summary Following re-trial, Robert D. Storey ("Storey") appeals his convictions and sentences for Possession of Methamphetamine in Excess of Three (3) Grams with Intent to Deliver and Manufacture of Methamphetamine in Excess of Three (3) Grams. Storey argues that his separate convictions for these two crimes violate Indiana's Double Jeopardy Clause, that the trial court abused its discretion in its consideration of the aggravating and mitigating circumstances, and that his sentence is inappropriate in light of the nature of the offenses and his character. Finding that the State sufficiently

distinguished the possession offense from the manufacturing offense and provided independent evidence to support both convictions, we conclude that Storey's possession and manufacturing convictions do not violate Indiana's Double Jeopardy Clause. As to his sentence, we find that the trial court did not abuse its discretion in its consideration of the aggravating and mitigating circumstances in arriving at a sentence and that his sentence is not inappropriate. Facts and Procedural History On July 21, 2003, area residents noticed an unfamiliar maroon vehicle and two men by a cornfield near Glen Graber's ("Graber") Elkhart, Indiana, farm. After being notified, Graber's son, Kenneth, went to the field to investigate. Soon thereafter, Graber and a neighbor joined up with Kenneth, and the men observed two sets of footprints leading into the cornfield and in close proximity to a nearby tank, later found to contain anhydrous ammonia, which is commonly used in the production of methamphetamine. Simultaneously, the men observed a maroon car in the area, which they followed into 2

Millersburg before deciding to return to the cornfield. While en route back to the cornfield, they called the Elkhart County Sheriff's Department and Eugene Moser ("Moser"), another neighbor. Moser met Graber and the other men at the edge of the field while they waited for the officers to arrive. While waiting for the officers, Storey emerged from the cornfield wearing heavy clothing on a warm day and sweating profusely. Startled at the sight of the men, Storey explained that he was looking for his dog and then began walking toward an adjacent railroad. When Kenneth followed, Storey ran and hid in some tall grass. Deputy Sheriff Jason Reaves arrived on the scene and quickly apprehended Storey. The police and others eventually found several items in the field used to manufacture methamphetamine, including containers, Draino cans, ether, batteries that were cut apart, liter bottles, and jars containing an orange-pink substance. Additionally, the authorities found finished methamphetamine weighing a total of 34.789 grams and unfinished methamphetamine that, if finished, would have yielded approximately twenty-eight grams. Thereafter, the State charged Storey with Possession of Methamphetamine in Excess of Three (3) Grams with Intent to Deliver ("possession") and Manufacture of Methamphetamine in Excess of Three (3) Grams ("manufacturing"). 1 Storey's first trial resulted in convictions on both counts that were reversed on appeal due to a violation of Storey's Fifth Amendment right to counsel. Storey v. State, 830 N.E.2d 1011 (Ind. Ct. App. 2005). After re-trial, Storey was again convicted of possession and manufacturing.

Ind. Code

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