ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DEBORAH K. SMITH STEVE CARTER
Martin & Smith Attorney General of Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
COURT OF APPEALS OF INDIANA
WENDELL B. IDDINGS, )
vs. ) No. 06A04-0107-CR-286
STATE OF INDIANA, )
APPEAL FROM THE BOONE SUPERIOR COURT, #1
The Honorable James R. Detamore, Jr., Special Judge
Cause No. 06D01-0005-CF-45
August 12, 2002
OPINION - FOR PUBLICATION
Wendell Iddings appeals his convictions and sentences for two counts of dealing in
a schedule II controlled substance by delivery, dealing in a schedule II controlled
substance by manufacturing, unlawful possession of a firearm by a serious violent felon,
dealing in a sawed off shotgun, and possession of chemical precursors with intent
to manufacture methamphetamine.
See footnote We affirm.
We restate the issues before us as:
I. whether the trial court properly denied Iddings motion to suppress evidence recovered pursuant
to a search warrant issued for his residence and garage;
II. whether the trial court erred in permitting the State to introduce into evidence
and play for the jury an audiotape of an alleged controlled buy at
III. whether there is sufficient evidence that Iddings possessed a sawed off shotgun and
chemical precursors of methamphetamine;
IV. whether Iddings conviction for possession of chemical precursors with intent to manufacture methamphetamine
is a lesser included offense of dealing in methamphetamine by manufacturing and must
be vacated; and
V. whether Iddings forty-eight year executed sentence is manifestly unreasonable.
The evidence most favorable to the convictions and the trial courts rulings reveals
that on April 28, 2000, police stopped and detained Gary Allen as part
of an ongoing investigation after Allen left a residence where drug dealing and
manufacturing was suspected to be occurring. Police discovered a substantial quantity of
drugs and firearms in Allens vehicle. Boone County Sheriffs Detective Albert Hendrix
told Allen that he would not be placed under arrest and taken to
jail at that time if he agreed to work with law enforcement as
a confidential informant. Allen did so and mentioned Iddings as a manufacturer
and dealer of methamphetamine.
Police arranged for Allen to make a controlled buy of methamphetamine at Iddings
residence on May 1, 2000. Allen and his vehicle were searched before
he went to the residence and he was given $100 and outfitted with
a Kel-Set transmitting device. Allen did not immediately seek to complete the
drug purchase when he arrived at Iddings home. Instead, Allen, who until
recently had lived with Iddings, spent much time repairing his car, which had
overheated on his way to the residence. He worked out of a
detached garage where he had told police the methamphetamine cooking took place.
He also engaged in conversation both related and unrelated to drugs with Iddings.
It is impossible to discern from the Kel-Set recording alone whether Iddings
agreed to sell methamphetamine to Allen. Allen did ask to purchase a
gram of the drug from Iddings, however, and shortly afterwards he left the
residence and met with police at a prearranged location. Allen and his
vehicle were again searched and he gave what turned out to be a
quantity of methamphetamine and $50 to police, telling them he had purchased the
drug from Iddings for $50.
After these events, police sought a search warrant for Iddings residence and the
garage, and one was issued for both following a probable cause hearing held
on May 2, 2000. Before executing the warrant, however, police asked Allen
to make another attempt to purchase methamphetamine from Iddings. He did so
on May 3, 2000, although he was not wearing a Kel-Set transmitter on
this occasion because of Iddings asking Allen during the previous encounter on May
1 whether he was wearing a wire. According to Allens testimony, however,
Iddings did not sell methamphetamine to Allen on this occasion, but instead simply
gave the drug to Allen without Allen directly asking for it. On
May 5, 2000, police executed the search warrant for Iddings residence. Inside
the house, police recovered several firearms, including a sawed off shotgun. Primarily
in the garage, police found extensive evidence of a methamphetamine lab, including what
was later revealed to be the drug itself and large amounts of chemicals
and other items associated with methamphetamine manufacturing, such as approximately thirty boxes of
pseudoephedrine tablets, lithium batteries, coffee filters, over sixty cans of engine starting fluid,
denatured alcohol, and soda pop bottles with tubes coming out of them that
appeared to be hydrogen chloride gas converters.
The State charged Iddings with three counts of dealing methamphetamine, Class B felonies.
Two of the counts were based upon the alleged deliveries to Allen
and one was based upon manufacturing of the drug. Iddings was also
charged with possession of a firearm by a serious violent felon, a Class
B felony, because of a 1979 conviction for armed robbery. Iddings was
further charged with dealing in a sawed off shotgun, possession of methamphetamine chemical
precursors with intent to manufacture the drug, and maintaining a common nuisance, all
Class D felonies. Iddings filed a motion to suppress all of the
evidence recovered pursuant to the search warrant; the trial court denied the motion.
After a jury trial conducted on January 9-12, 2001, Iddings was convicted of
all counts. The trial court imposed sentence as follows: fifteen years
for each of the four Class B felonies and three years for the
sawed off shotgun and chemical precursors convictions. The dealing by delivery counts
were to be served concurrently with each other, the dealing by manufacturing count
was to be served concurrently with the chemical precursors count but consecutive to
the dealing by delivery counts, and the serious violent felon and sawed off
shotgun counts were to be served consecutively to each other and the other
counts. The net result is an executed sentence totaling forty-eight years.
Iddings now appeals.
I. Denial of Motion to Suppress
Iddings first argues that the trial court improperly denied his motion to suppress,
claiming the issuance of the search warrant was based on unreliable hearsay and
an inadequate controlled buy. Reviewing courts, which include both the trial court
ruling on a motion to suppress evidence and the appellate court reviewing that
decision, are to focus on whether a substantial basis existed for a warrant
authorizing a search or seizure, and doubtful cases are to be resolved in
favor of upholding the warrant. Rios v. State, 762 N.E.2d 153, 156
(Ind. Ct. App. 2002) (citing Houser v. State, 678 N.E.2d 95, 98 (Ind.
1997)). We review the trial courts substantial basis determination de novo, but
give significant deference to the probable cause determination of the magistrate who initially
issued the search warrant, focusing on whether reasonable inferences drawn from the totality
of the evidence support the determination. Id. A presumption of validity
of the search warrant exists, and the burden is upon the defendant to
overturn that presumption. Id. at 157 (quoting Snyder v. State, 460 N.E.2d
522, 529 (Ind. Ct. App. 1984).
We agree with Iddings that there are causes for concern regarding the May
1, 2000, controlled buy, both in how it was executed and how Detective
Hendrix related it to the judge who was asked to issue the search
warrant for Iddings residence. We have described the requirements of a controlled
buy as follows:
A controlled buy consists of searching the person who is to act as
the buyer, removing all personal effects, giving him money with which to make
the purchase, and then sending him into the residence in question. Upon
his return he is again searched for contraband. Except for what actually
transpires within the residence, the entire transaction takes place under the direct observation
of the police. They ascertain that the buyer goes directly to the
residence and returns directly, and they closely watch all entrances to the residence
throughout the transaction.
Methene v. State, 720 N.E.2d 384, 389-90 (Ind. Ct. App. 1999) (quoting Flaherty
v. State, 443 N.E.2d 340, 341 (Ind. Ct. App. 1982)).
In the present case, Detective Hendrix testified at the search warrant probable cause
hearing that Allen and his vehicle were searched before he drove to Iddings
we watched him go into the residence. During that time, the Confidential
Informant was wearing a wire, which is a piece of equipment used by
Police Officers in Narcotics investigations to tape-record and be able to listen to
any transaction thats being made while, while the Informants in the residence.
There was conversation inside the residence about firearms and Methamphetamine. It ended-up
that the Informant purchased one gram of Methamphetamine, uh, and paid for it.
I believe he paid $50.00 in U.S. Currency to Wendell Iddings.
App. p. 61. Detective Hendrix also testified that Allen and his vehicle
were searched after he left Iddings residence. There are several difficulties with
this testimony. First, there is no indication that all entrances to the
residence were closely monitored throughout the transaction, as required by Methene and Flaherty.
Second, there is no indication that Allen went directly to the residence;
rather, Allen spent much time working in and around a detached garage where
he claimed to have previously made methamphetamine before entering the residence and asking
to buy the drug from Iddings, which fact was not mentioned during the
probable cause hearing.
Third, Detective Hendrix testimony is misleading in that it seems to indicate that
an agreement to sell methamphetamine by Iddings can be heard on the tape
recording. We have listened to the tape and have discerned that no
such agreement can be heard. At the hearing on the motion to
suppress, Detective Hendrix admitted that he did not hear the sale of methamphetamine
take place. In fact, Iddings was apparently reluctant to sell to Allen,
as he was aware that Allen had been pulled over by police a
few days before. On the tape, Iddings can be heard saying things
in response to Allens request to buy a gram of methamphetamine such as
are you wired? . . . You know this carries a life
sentence. . . . Why would anyone sell you a gram?
States Exhibit 89. Finally, Detective Hendrix testified that we saw Allen enter
Iddings residence. The use of a first-person pronoun indicates that he personally
observed Allen enter the residence when, in fact, he testified in subsequent proceedings
that he did not personally observe that occur, but other law enforcement officers
did. Although it is true that probable cause may be based upon
information known to the law enforcement organization as a whole,
see Rios, 762
N.E.2d at 163, it clearly is the best practice for one filing a
probable cause affidavit or testifying at a probable cause hearing to indicate what
information was within the affiants or witness personal knowledge and what information was
gathered from other law enforcement officials. There should be no shading of
the truth in these sort of proceedings.
In spite of these concerns regarding the controlled buy and portions of Detective
Hendrix testimony, we do not conclude the judge issuing the search warrant lacked
a substantial basis for believing probable cause existed that contraband might be found
at Iddings residence. In response to the prosecutors questions, Detective Hendrix testified
that the confidential informant had knowledge of Wendell Iddings being involved in the
manufacture . . . and sale of Methamphetamine, and that Allen said that
Mr. Iddings . . . and he manufactured Methamphetamine at this location[.]
App. pp. 60, 63 (emphasis added). Iddings claims these hearsay statements by
Allen lacked any indicia of reliability and, therefore, could not have supported a
probable cause determination.
Uncorroborated hearsay from a source whose credibility is unknown cannot support a finding
of probable cause to issue a search warrant. Methene, 720 N.E.2d at
388 (citing Illinois v. Gates, 462 U.S. 213, 227, 103 S. Ct. 2317,
2326, (1983)). This Fourth Amendment credibility requirement with respect to the use
of informants to establish probable cause has been codified in Indiana Code Section
35-33-5-2(b), which provides that a probable cause affidavit based on hearsay must:
(1) contain reliable information establishing the credibility of the source and of each
of the declarants of the hearsay and establishing that there is a factual
basis for the information furnished; or
(2) contain information that establishes that the totality of the circumstances corroborates the
Methene, 720 N.E.2d at 388.
Our supreme court has squarely held that [d]eclarations against penal interest can furnish
sufficient basis for establishing the credibility of an informant within the meaning of
Indiana Code Section 35-33-5-2(b)(1). Houser, 678 N.E.2d at 100. In that
case, the affidavit established the credibility of the source in part because the
sources statements suggested a conspiracy between the source and the defendant to commit
robbery. Id. This court likewise concluded in Nash v. State, 433
N.E.2d 807, 809-10 (Ind. Ct. App. 1982), that hearsay from an anonymous informant
was sufficiently reliable where it indicated that the informant admitted committing a burglary
and delivering stolen items to the defendants residence. We concluded there was
substantial authority to support a determination that statements against penal interest are reliable
indicia of credibility to sufficiently support a finding of probable cause:
Common sense in the important daily affairs of life would induce a prudent
and disinterested observer to credit these statements. People do not lightly admit
a crime and place critical evidence in the hands of the police in
the form of their own admissions. Admissions of crime, like admissions against
proprietary interests, carry their own indicia of credibility sufficient at least to
support a finding of probable cause to search. That the informant may
be paid or promised a break does not eliminate the residual risk and
opprobrium of having admitted criminal conduct.
Id. (quoting United States v. Harris, 403 U.S. 573, 584, 91 S. Ct.
2075, 2082 (1971)).
II. Playing of Audiotape for Jury
Pursuant to this authority, we conclude that the hearsay statements of confidential informant
Allen indicating that methamphetamine was manufactured at Iddings residence were sufficiently reliable.
Just as in Houser and Nash, Allen implicated himself in the commission of
a crime, namely the manufacture of methamphetamine at Iddings residence, thus providing a
recognized basis for concluding that the confidential informant was a credible source and
the information he provided was reliable. The fact that Allen may have
been offered a break for providing this information is insufficient to undermine his
credibility for the purpose of concluding that probable cause existed to search Iddings
residence, as Nash and Harris indicate. Giving significant deference to the judge
who issued the search warrant, we conclude there was a substantial basis upon
which to conclude there was probable cause to believe methamphetamine and evidence of
methamphetamine dealing and manufacturing might be recovered at Iddings residence. The trial
court did not err in denying Iddings motion to suppress.
Iddings next contends the trial court erred in playing for the jury States
Exhibit 89, which is an audio recording of the May 1, 2000, controlled
buy. He contends that the noncustodial recording does not meet the standard
for admissibility of such recordings as set forth in Kidd v. State, 738
N.E.2d 1039 (Ind. 2000), noting that the court reporter could not transcribe the
tape because of its poor quality. Iddings did not object to the
playing of this tape at trial, however. It is axiomatic that failing
to object to the introduction of evidence waives appellate review of any claim
of error in such introduction. Johnson v. State, 725 N.E.2d 864, 867
Iddings attempts to avoid waiver of this issue by claiming it is unclear
if counsel could have predicted the tape quality would be so poor that
it could not be transcribed. Appellants Br. p. 16. This claim
is without merit. There is no contention that this audiotape was not
made available to defense counsel by the State during the course of discovery.
Furthermore, in reviewing the hearing on Iddings motion to suppress, we find
defense counsel made several comments indicating that he and Iddings had listened to
the tape, including defense counsel asking Iddings, [h]ave you listened to the tape
with me previously, to which Iddings answered Yes. Supp. App. p. 172.
Although Iddings had different counsel at the time of trial, we have
no reason to believe that subsequent counsel did not have the opportunity to
listen to the tape prior to trial. We conclude Iddings has preserved
nothing for our review on this issue.
III. Sufficiency of the Evidence
Next, Iddings argues there was insufficient evidence that he possessed the sawed off
shotgun and the chemical precursors of methamphetamine.
See footnote In reviewing a sufficiency of
the evidence claim, we neither reweigh the evidence nor assess the credibility of
Love v. State, 761 N.E.2d 806, 810 (Ind. 2002).
We look to the evidence most favorable to the verdict and the reasonable
inferences to be drawn therefrom. Id. We will affirm the conviction
if there is probative evidence from which a reasonable jury could have found
the defendant guilty beyond a reasonable doubt. Id.
Iddings specifically argues that he was not found to be in actual possession
of the shotgun and chemical precursors and that the States case of constructive
possession of those items was insufficient. In order to prove constructive possession,
the State must show that the defendant has both (1) the intent to
maintain dominion and control and (2) the capability to maintain dominion and control
over the contraband. Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999).
To prove the intent element, the State must demonstrate the defendants knowledge
of the presence of the contraband, which may be inferred from either the
exclusive dominion and control over the premises containing the contraband or, if the
control is non-exclusive, evidence of additional circumstances pointing to the defendants knowledge of
the presence of the contraband. Id. (quoting Taylor v. State, 482 N.E.2d
259, 261 (Ind. 1985)). The capability requirement is met when the State
shows that the defendant is able to reduce the contraband to the defendants
personal possession. Id. Proof of a possessory interest in the premises
in which contraband is found is adequate to show the capability to maintain
control and dominion over the items in question. Id. (quoting Davenport v.
State, 464 N.E.2d 1302, 1307 (Ind. 1984), cert. denied, 469 U.S. 1043, 105
S. Ct. 529 (1984)). Possession of contraband by the defendant need not
be exclusive and it can be possessed jointly. Conrad v. State, 747
N.E.2d 575, 583 (Ind. Ct. App. 2001), trans. denied.
The sawed off shotgun was found inside a safe hidden in the floor
of a hallway in Iddings house; it is undisputed that Iddings had a
possessory interest in this house, apparently as a renter. Allen, who had
resided with Iddings until shortly before Iddings arrest, testified that the safe was
Iddings, that Allen did not know the combination to the safe, and that
Iddings had told Allen his brother knew the combination if anyone needed to
get into the safe. He further testified that the sawed off shotgun
belonged to Iddings.
Clearly, Iddings is asking us
to reweigh evidence and judge Allens credibility in this case. We cannot
do so. The evidence most favorable to the judgment is sufficient to
establish that Iddings possessed the sawed off shotgun.
As for the chemical precursors, Indiana State Police chemist Jonelle Shiel testified as
to the numerous items found in the detached garage next to Iddings house,
including quantities of pseudoephedrine tablets and lithium batteries; some of the batteries had
had their lithium removed. The charging information alleged pseudoephedrine and lithium metal
as the chemical precursors of methamphetamine that Iddings possessed. Allen testified that
he and Iddings cooked methamphetamine in the garage. We neither reweigh the
evidence nor judge witness credibility and the evidence here is plainly sufficient to
establish that Iddings possessed the chemical precursors of methamphetamine with the intent to
manufacture that drug. The possibility that Allen may have jointly possessed these
precursors with Iddings is irrelevant.
IV. Lesser Included Offense
Iddings contends that his conviction for possessing chemical precursors of methamphetamine must be
vacated because it is a lesser included offense of dealing in methamphetamine by
manufacturing it, of which he was also convicted. Indiana Code Section 35-38-1-6
provides that if a defendant is charged with an offense and an included
offense in separate counts and is found guilty of both counts, judgment and
sentence may not be entered against the defendant for the included offense.
Indiana Code Section 35-41-1-16 states:
Included offense means an offense 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.
A lesser included offense is necessarily included within the greater offense if it
is impossible to commit the greater offense without first having committed the lesser.
Zachary v. State, 469 N.E.2d 744, 749 (Ind. 1984).
There clearly is merit to Iddings claim. Indiana Code Section 35-48-4-2(a)(1)(A) provides
that a person who knowingly or intentionally manufactures a schedule II controlled substance,
which includes methamphetamine, commits dealing in a schedule II controlled substance, a Class
B felony. Indiana Code Section 35-48-4-14.5(b) provides that a person who possesses
two or more chemical reagents or precursors with the intent to manufacture methamphetamine
commits a Class D felony. We accept that it is impossible to
knowingly or intentionally manufacture methamphetamine without first possessing the chemical precursors of methamphetamine
with the intent to make the drug. Methamphetamine cannot be conjured up
out of thin air. The sole practical difference between these two offenses
is that one may be guilty of possessing chemical precursors with intent to
manufacture without actually beginning the manufacturing process, whereas the manufacturing process must, at
the very least, have been started by a defendant in order to be
found guilty of manufacturing methamphetamine.
This alone, however, is insufficient to require vacation of Iddings conviction for possession
of the chemical precursors of methamphetamine. If each offense is established by
proof of an element not contained in the other, Indiana Code Section 35-38-1-6
does not preclude conviction and sentence for both offenses. Ingram v. State,
718 N.E.2d 379, 381 (Ind. 1999). If the evidence indicates that one
crime is independent of another crime, it is not an included offense.
See id. (declining to hold defendants criminal confinement conviction was lesser included offense
of criminal deviate conduct and sexual battery where force or threat of force
went beyond that necessary to effectuate those offenses). Section 35-38-1-6 only precludes
convictions on multiple counts where those counts had identical elements of proof.
See Goudy v. State, 689 N.E.2d 686, 698 (Ind. 1997) (vacating attempted carjacking
conviction as lesser included offense of attempted robbery but emphasizing that it was
necessary to do so only because both offenses involved the attempted taking of
the same motor vehicle). Thus, whether an offense is included in another
within the meaning of Section 35-38-1-6 requires careful examination of the facts and
circumstances of each particular case.
In Bush v. State, -- N.E.2d --, No. 69A01-0201-CR-22 (Ind. Ct. App. August
12, 2002), which we also decide today, we hold that although the fact
that police did not recover any completed methamphetamine from Bushs residence did not
preclude his conviction for manufacturing the drug, . . . such circumstances do
preclude his additional conviction for possessing methamphetamine precursors with intent to manufacture.
Slip op. p. 8. In the present case, by contrast, chemical analysis
revealed that police recovered completed methamphetamine at Iddings residence. Additionally, police recovered
chemical precursors of methamphetamine, including pseudoephedrine and lithium metal, in large quantities and
in proximity to other items associated with methamphetamine manufacturing, including soda pop bottles
that apparently had been converted into hydrogen chloride gas generators. Thus, there
was evidence in this case that Iddings (1) had already manufactured methamphetamine and
(2) possessed the chemical precursors of mehtamphetamine with the intent to manufacture more
of the drug. Under these particular circumstances, we cannot say Iddings possession
of chemical precursors of methamphetamine was necessarily a lesser included offense of manufacturing
methamphetamine because the evidence permits the reasonable conclusion that two independent offenses were
committed for which Iddings could be separately punished. Iddings conviction for the
possession of chemical precursors of methamphetamine with intent to manufacture that drug need
not be vacated.
Iddings final argument is that his total executed sentence of forty-eight years for
these convictions is manifestly unreasonable.
See footnote Although we have the constitutional authority to
revise and review sentences under Article VII, Section 6 of the Indiana Constitution,
we will do so only when the sentence is manifestly unreasonable in light
of the nature of the offense and the character of the offender.
Lemos v. State, 746 N.E.2d 972, 976 (Ind. 2001) (quoting former Ind. Appellate
Rule 17(B), now Ind. Appellate Rule 7(B)). Our review under Rule 7(B)
is very deferential to the trial court. Lemos, 746 N.E.2d at 976.
We begin by noting that Iddings was convicted of four Class B felonies
and three Class D felonies. As such, the most severe possible punishment
he faced was eighty-nine years, if maximum, consecutive sentences were imposed for each
conviction. The absolute minimum sentence Iddings could have received was six years,
if minimum, concurrent sentences were imposed. Viewed in this context, Iddings sentence
of forty-eight years falls roughly halfway between the minimum and maximum possible sentences.
As we have recently observed, sentences which approach or equal the maximum
lawful sentence for the class of crime at issue . . . have
historically invited appellate review and, upon occasion, revision. Hildebrandt v. State, 770
N.E.2d 355, 2002 WL 1264144, *6 (Ind. Ct. App. June 7, 2002), trans.
pending. Iddings sentence does not approach the maximum lawful sentence. We
also note that the actual time period Iddings may be expected to be
incarcerated is twenty-four years, if he earns Class I one-for-one good time credit
during his time in the Department of Correction. See id. at --,
2002 WL 1264144 at *9.
Here, the trial court found two undisputed aggravating circumstances: Iddings criminal history,
consisting of three misdemeanor battery convictions in 1997 and 1998,
See footnote and the fact
that Iddings was still on probation for one of those convictions when he
committed the present offenses.See footnote The trial court did not consider Iddings earlier
armed robbery conviction as part of his criminal history because it formed the
basis of the serious violent felon charge. The trial court noted two
mitigators: there was a seventeen-year period, apparently from 1980 to 1997, when
Iddings was not convicted of any crime, and Iddings was addicted to drugs.
Clearly, however, the trial court did not assign much weight to these
factors. First, it noted that the seventeen-year period without convictions did not
mean a seventeen-year period without Iddings engaging in criminal activity because he admitted
to being heavily involved with the use of cocaine during that time period.
Second, it only considered Iddings addiction a possible mitigator in a round
about way because he had originally made conscious choices to become involved with
drugs. Tr. p. 670. Indeed, a history of substance abuse is
sometimes found by trial courts to be an aggravator, not a mitigator.
See Hildebrandt, 770 N.E.2d at --, 2002 WL 1264144 at *8. A
sentencing court is not required to place the same value on a mitigating
circumstance as does the defendant. Beason v. State, 690 N.E.2d 277, 283-84
(Ind. 1998). The trial court here adequately explained why the mitigators where
not entitled to much weight and, hence, why they were outweighed by the
aggravators. Given the aggravators and mitigators in this case, we cannot say
it was manifestly unreasonable for the trial court to conclude that some enhancement
of Iddings sentence, falling five years short of the maximum enhancement for the
Class B felonies, was warranted.
Iddings also contends that it is manifestly unreasonable for some of his sentences
to run consecutively. [T]here is neither any prohibition against relying on the
same aggravating circumstances both to enhance a sentence and to order it served
consecutively, nor any requirement that the trial court identify the factors that supported
the sentence enhancement separately from the factors that supported consecutive sentences. Blanche
v. State, 690 N.E.2d 709, 716 (Ind. 1998). Iddings argument that all
of his sentences should run concurrently is based upon our supreme courts decisions
in Beno v. State, 581 N.E.2d 922 (Ind. 1991), and Gregory v. State,
644 N.E.2d 543 (Ind. 1994). In those cases, the court held it
was manifestly unreasonable to impose consecutive sentences for multiple drug dealing convictions where
the convictions were based upon nearly identical State sponsored sales to a police
informant as part of an ongoing sting operation. Beno, 581 N.E.2d at
924; Gregory, 644 N.E.2d at 546. In the present case the trial
court did impose concurrent sentences for Iddings two dealing convictions that were based
upon the deliveries to Allen, a police informant. This was the only
criminal activity in this case that was State sponsored. Iddings manufacture of
methamphetamine was not State sponsored in any way, nor was his possession of
firearms as a serious violent felon, nor was his possession of a sawed
off shotgun. Beno and Gregory did not preclude the trial court from
imposing sentences for these convictions that run consecutive to the dealing by delivery
sentences and to each other.
We otherwise do not find the manner in which the trial court sentenced
Iddings to be manifestly unreasonable, focusing on the aggregate conduct of the multiple
convictions at issue. See Hildebrandt, 770 N.E.2d at --, 2002 WL 1264144
at *9. Iddings was found guilty of committing seven different felonies.
He was running a substantial methamphetamine lab and possessed not only one firearm,
but several, including a sawed off shotgun. Despite a long period in
which Iddings was not convicted of any crime, he was found guilty of
committing three separate batteries in recent years and was still on probation for
one of those offenses when he committed the present crimes. Under these
circumstances, we cannot say that a sentence of forty-eight years, with a possible
time served of twenty-four years, is manifestly unreasonable, particularly in comparison to the
maximum eighty-nine year sentence that he potentially faced.
The trial court did not err in denying Iddings motion to suppress because
there was a substantial basis for issuance of the search warrant. Iddings
has waived any argument regarding the playing of the audiotape for the jury.
There is sufficient evidence to support his convictions. In this particular
case, Iddings conviction for possession of the chemical precursors of methamphetamine with the
intent to manufacture that drug is not a lesser included offense of manufacturing
methamphetamine. Finally, Iddings forty-eight year executed sentence is not manifestly unreasonable.
We affirm in all respects.
MATHIAS, J., concurs.
KIRSCH, J., concurs in part and dissents in part, with opinion.
COURT OF APPEALS OF INDIANA
WENDELL B. IDDINGS, )
vs. ) No. 06A04-0107-CR-286
STATE OF INDIANA )
APPEAL FROM THE BOONE SUPERIOR COURT
The Honorable James R. Detamore, Special Judge
Cause No. 06D01-0005-CF-45
KIRSCH, Judge, concurring in part and dissenting in part.
I fully concur in the decision of the majority with regard to all
issues except that involving sentencing. From that decision, I respectfully dissent.
Our jurisprudence regarding appellate sentence review continues to evolve. As it does,
we struggle with the appropriate balance between the deference due the trial courts
discretion in its sentencing decision and our constitutional mandate under Article VII, Section
4 of the Indiana Constitution to review and revise sentences. Here, for
me, the balance tips on the side of review and revision. I
believe that a forty-eight year sentence for a non-violent crime given to a
defendant whose criminal history is not extensive and in the last twenty-two years
includes only three misdemeanor battery convictions is manifestly unreasonable in light of the
nature of the offense and the character of the offender.
I would vacate the sentence and remand with instructions to enter a sentence
for twenty-four years.
Iddings was also convicted of maintaining a common nuisance. Although the
trial court entered judgment of conviction on this count, its sentencing order contains
no sentence for it.
Footnote: The tape is not entirely audible. These are our approximations of
what can be heard on the tape.
Footnote: Iddings frames his challenge to the finding he possessed the sawed off
shotgun as a challenge to his serious violent felon firearm conviction. However,
there was evidence of several other firearms found in Iddings residence and the
information alleged the possession of these firearms, as well as the sawed off
shotgun, in the serious violent felon count. Iddings does not challenge the
sufficiency of the evidence with regard to his possession of these other firearms,
the possession of any one of which was sufficient for him to be
found guilty on the serious violent felon count. We view this argument
solely as one directed to Iddings conviction for dealing in a sawed off
Footnote: It is not entirely clear whether Iddings is challenging the reasonableness of
the sentence or the trial courts finding and balancing of aggravators and mitigators.
Because he does not specifically challenge the aggravators and mitigators found by
the trial court or the adequacy of its sentencing statement, we will address
Iddings argument as a manifestly unreasonable question.
Footnote: Iddings was apparently convicted of one battery under a 1997 cause number
and two batteries under a 1998 cause number.
Footnote: Iddings incorrectly alleges in his brief that [i]t is unclear what aggravating
circumstances the court found besides Iddings two misdemeanor convictions. Appellants Br. p.