ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
NITA DAVIDSON-SCHLETER STEVE CARTER
Fort Branch, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
COURT OF APPEALS OF INDIANA
CHRIS A. LIVERMORE, )
vs. ) No. 26A05-0204-CR-162
STATE OF INDIANA, )
APPEAL FROM THE GIBSON CIRCUIT COURT
The Honorable Walter H. Palmer, Judge
Cause No. 26C01-0111-CF-17
November 6, 2002
OPINION - FOR PUBLICATION
BROOK, Chief Judge
Appellant-defendant Chris A. Livermore (Livermore) appeals his convictions for Class B felony dealing
Class D felony possession of chemical reagents or precursors with intent
to manufacture methamphetamine (possession of precursors),
and Class A misdemeanor possession of marijuana.
We affirm in part and reverse in part.
Livermore raises five issues for our review, which we reorder and restate as
whether the trial court erred in denying Livermores motion to suppress;
whether Livermores girlfriend, Mary Jo Robbins (Robbins), voluntarily consented to a search of
whether the trial court erred in denying Livermores motion for mistrial;
whether the trial court abused its discretion in refusing one of Livermores tendered
jury instructions; and
whether there is sufficient evidence to support his convictions.
Facts and Procedural History
At approximately 10:30 a.m. on November 23, 2001, Oakland City Police Chief Alec
Hensley (Hensley) saw a truck change lanes without signaling and followed it.
Hensley ran a check on the trucks license plate and determined that Livermore
was the registered driver of the truck and that his Indiana operators license
had expired. When Livermore pulled into Robbinss driveway, Hensley pulled in behind
him. Livermore exited his truck, approached Hensleys car, and asked him if
there was a problem. When Hensley explained why he had followed Livermore
and told him that his Indiana drivers license had expired, Livermore replied that
he now held a valid Illinois license. By this time, Hensley had
exited his cruiser and had noticed an odor he identified as anhydrous ammonia
coming from Livermores truck. As Hensley moved closer to the truck, the
odor became stronger. When Hensley asked for consent to search the truck,
Livermore refused. Hensley called for backup, and Conservation Officer Bruner responded.
Eventually, Conservation Officer Collier also responded.
While conversing with Hensley, Livermore put both hands into his pants pockets.
Hensley noticed a bulge in Livermores left pocket. Hensley asked Livermore to
remove his hands from his pockets. Livermore initially complied, but he quickly
put his left hand back into his left pants pocket. Livermore appeared
to be manipulating something in the pocket. Concerned for his safety, Hensley
grabbed Livermores hand and shoulder and told him to slowly remove his hand
from the pocket. After Livermore complied, Hensley patted down the pocket and
felt plastic bags, a granular substance, and twist ties. Hensley then removed
the pockets contents: a lighter, a bag containing what was later identified
as marijuana, six individual plastic bags tied with twist ties that were later
determined to contain methamphetamine, and a small box that was later determined to
contain methamphetamine, ephedrine, and pseudoephedrine.
Hensley arrested Livermore for possession of methamphetamine and placed him in the front
seat of his car. Hensley then walked his police K-9 around Livermores
truck. The dog detected drugs in the vicinity of the drivers side
front door and the tailgate and bumper. Hensley searched the cab of
the truck and discovered a marijuana cigarette inside a black nylon knife case.
When Hensley opened the tailgate, he detected a strong odor of anhydrous
ammonia and ether. He found and opened a glass beverage bottle that
contained a clear liquid. When opened, the bottle gave off a strong
odor of anhydrous ammonia.
Robbins arrived home approximately fifteen minutes after Hensley pulled into her driveway.
While Hensley was speaking with Robbins, Livermore attracted Hensleys attention by rocking the
police car. Livermore claimed that Robbins had done nothing wrong and offered
to show Hensley where he kept his anhydrous ammonia in Robbinss house.
Livermore led Hensley and one of the conservation officers into the house.
Robbins accompanied them. Livermore produced two fire extinguishers containing anhydrous ammonia and
a duffel bag that contained,
inter alia, a bottle of Liquid Fire containing
sulfuric acid and a third fire extinguisher that smelled of anhydrous ammonia.
Hensley then had a Gibson County sheriffs deputy transport Livermore to jail.
In the early afternoon, an Indiana State Police field team arrived and further
searched Livermores truck, finding four empty cans of starting fluid. At 3:28
p.m., Robbins signed a consent form allowing a search of her house.
Several members of the Indiana State Police conducted the search, which produced another
fire extinguisher containing anhydrous ammonia and a small vial containing methamphetamine. At
approximately 6:00 p.m., Hensley videotaped an interview with Livermore in the booking room
of the Gibson County sheriffs department. During the interview, Livermore admitted to
owning the methamphetamine and marijuana found in his pocket, the fire extinguishers, the
empty starting fluid cans, and the contents of the duffel bag, including the
Liquid Fire. Livermore also admitted to manufacturing methamphetamine, occasionally selling it to
friends, and trading it for various power tools.
On November 16, 2001, the State charged Livermore with Class B felony dealing
in methamphetamine, Class D felony possession of precursors (namely anhydrous ammonia and starting
fluid), Class A misdemeanor possession of marijuana, and Class C infraction failing to
signal before changing lanes.
On January 9, 2002, Livermore filed a motion
to suppress the evidence Hensley seized from his pocket. After a hearing
held on January 17, 2002, the trial court denied the motion.
After a jury trial held on February 4 and 5, 2002, the jury
found Livermore guilty on the felony and misdemeanor counts.
On March 5,
2002, the trial court merged the possession of precursors conviction into the dealing
in methamphetamine conviction for purposes of sentencing and sentenced Livermore on the dealing
in methamphetamine and possession of marijuana convictions. Livermore now appeals.
Discussion and Decision
I. Motion to Suppress
Livermore contends that the trial court erroneously denied his motion to suppress all
evidence of the marijuana and methamphetamine Hensley seized from his pocket. For
Livermore to have preserved this issue for appeal, he must have also made
a specific and timely objection to the evidence to preserve error. The
trial courts denial of a motion to suppress is insufficient to preserve error
for appeal. Green v. State, 753 N.E.2d 52, 59 (Ind. Ct. App.
2001) (citations omitted), trans. denied. Livermore failed to object at trial when
the evidence from his pocket was admitted, when Hensley testified concerning its discovery,
and when Indiana State Police forensic scientist Rebecca Nickless (Nickless) testified that the
substances found in his pocket were in fact marijuana and methamphetamine. Consequently,
Livermore has waived consideration of this issue.
II. Robbinss Consent to Search of her House
Livermore contends that the evidence seized after Robbins consented to a search of
her house should have been suppressed because her consent was not voluntarily given.
The Fourth Amendment to the United States Constitution preserves the right of
the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures. Indiana Dept of Revenue v. Adams, 762 N.E.2d
728, 734 (Ind. 2002) (quoting U.S. Const. amend. IV).
Under Fourth Amendment doctrine, a threshold question is whether the defendant who claims
a violation had a reasonable expectation of privacy at the time of the
alleged unreasonable search and seizure. In such matters, the defendant has the
initial burden of establishing that he had a reasonable expectation of privacy.
Lander v. State, 762 N.E.2d 1208, 1211 (Ind. 2002) (citations omitted). We
conclude that Livermore has failed to carry his burden. Robbins testified that
although she and Livermore had lived together in the past, they had broken
up some months previously, and that Livermore was not living with her at
the time of his arrest. See Tr. at 230-31. Although Robbins
testified that she and Livermore had begun dating again and that [h]e was
there[,] she did not testify as to how often Livermore was in her
house or if he had ever recently been an overnight guest. Id.
at 229. Absent a reasonable expectation of privacy, Livermore does not have
standing to challenge the voluntariness of Robbinss consent. Cf. Hanna v. State,
726 N.E.2d 384, 387 n.4 (Ind. Ct. App. 2000) (In the present case,
a previous relationship existed between Hanna and Hunt; they had been friends for
five years. Hanna had stayed overnight at Hunts apartment over twenty times
within the few months before July 26,
1997. Therefore, Hanna, as Hunts overnight
guest, had a reasonable expectation of privacy in Hunts apartment and is entitled
to the protection of the Fourth Amendment.) (citations omitted).
III. Motion for Mistrial
arguendo, that Livermore has standing to challenge Robbinss consent to the
search, he has waived consideration of this issue. A fire extinguisher containing
anhydrous ammonia and a small vial that contained methamphetamine were the only items
seized during the search of Robbinss house. Because Livermore did not object
when the vial was offered into evidence and when Nickless testified that it
contained methamphetamine, he has waived any challenge to its admissibility. See Prewitt
v. State, 761 N.E.2d 862, 871 (Ind. Ct. App. 2002) (A partys failure
to make a contemporaneous objection to evidence offered at trial precludes later appellate
review of its admissibility.). Livermore did object when Indiana State Police Sergeant
Gregory Oeth testified regarding the fire extinguisher and when a photograph thereof was
subsequently offered into evidence, but only on the basis that the State had
not proved that the extinguisher was his. It is well-settled law in
Indiana that a defendant may not argue one ground for objection at trial
and then raise new grounds on appeal. Gill v State, 730 N.E.2d
709, 711 (Ind. 2000). Therefore, Livermore has waived any challenge to the
fire extinguishers admissibility.
Livermore contends that during closing argument the prosecutor improperly referred to his decision
not to testify and that the trial court therefore abused its discretion in
denying his motion for mistrial. The Fifth Amendment[
] privilege against compulsory self-incrimination
is violated when a prosecutor makes a statement that is subject to reasonable
interpretation by a jury as an invitation to draw an adverse inference from
a defendants silence. Davis v. State, 685 N.E.2d 1095, 1098 (Ind. Ct.
App. 1998) (citation omitted and emphasis removed). However, [a]rguments that focus on
the uncontradicted nature of the States evidence do not violate the defendants right
to remain silent. Carter v. State, 686 N.E.2d 1254, 1262 (Ind. 1997).
During the States closing argument, the following exchange took place:
. Who disputed the voluntariness of [Livermores] confession here today?
[Livermores counsel did]. Thats not testimony.
What did you hear from the stand in that regard? Thats all
you can consider and the court will instruct you on that. Thats
all you heard is her saying it in final argument. You heard
no evidence from the stand in that regard.
Now, the court will instruct you
[Livermores counsel]: Your Honor, I object. At this point I would
like to make a motion out of the hearing of the jury.
COURT: Couldnt stand prosperity. You just had to do it.
[Prosecuting attorney]: Hum?
[Livermores counsel]: Your Honor, the State has commented on the silence of
the defendant, the failure of the defendant to testify. I object to
any I think its grounds for a mistrial, your honor.
COURT: Well, youve got to give me something a little more definite
than that, if you want me to rule on it. So far
you have an objection to something he said, which is sustained. Now
[Livermores counsel]: I dont know if the judge would find manifest necessity
so if he would be retried. I move for a mistrial, your
COURT: Motion denied. Bring the jury back in. [Prosecuting attorney],
youre instructed to make no further comments on the defendant and/or his failure
[Prosecuting attorney]: Yes, your honor. But if I could be heard.
I never said he didnt. I just said they can only
consider the evidence from the stand.
COURT: Its the same thing
and you know it.
[Prosecuting attorney]: Yes, sir.
COURT: Bring [the jury] in.
[Livermores counsel]: [C]an I have an admonition to disregard that?
[Jury returns.] Objection made by the defendant concerning
the defendants (sic) statements in final argument concerning there was no evidence from
the stand concerning voluntariness of confession. The Court now sustains the objection.
The jury is instructed to disregard that portion of the Prosecutors argument.
Is there anyone here [who] feels they cant disregard it? No
hands are raised. The court assumes by observation of the jury that
there is no harm done. Continue.
Tr. at 285-88 ((sic) in transcript, bracketed material added).
In other words, the prosecutor merely commented on the uncontradicted nature of the
States evidence that Livermores confession was voluntary and did not invite the jury
to draw an adverse inference from his silence at trial. See, e.g.,
Ben-Yisrayl v. State, 690 N.E.2d 1141, 1149 (Ind. 1997) (holding that prosecutors statements
were not improper when it [was] clear that he was responding to any
possible implications that the defendants confession was less than voluntary). The trial
court did not abuse its discretion in denying Livermores motion for mistrial.
IV. Jury Instruction
Livermore contends that the trial court abused its discretion in rejecting his tendered
final jury instruction number one. Instructing the jury lies within the sole
discretion of the trial court. Flake v. State, 767 N.E.2d 1004, 1006
(Ind. Ct. App. 2002). When a tendered instruction is refused, a court
on review considers: (1) whether the refused instruction correctly stated the law;
(2) whether evidence supported giving the instruction; and (3) whether it was adequately
covered by other instructions. Patton v. State, 760 N.E.2d 672, 674-75 (Ind.
Ct. App. 2002) (citation and quotation marks omitted).
Livermores tendered jury instruction number one reads as follows: Even though the
Court admits into evidence the Defendants inculpatory statements to police officers (confession), the
jury may find that the statements were involuntarily given and disregard them.
Appellants App. at 43. This tendered instruction does not correctly state the
law, for [i]t is the role of the trial court not the
jury to determine whether a statement made by a defendant is voluntary
and therefore admissible. After a statement is admitted into evidence, it then
becomes the duty of the jury to evaluate the credibility of the statement
and to decide how much weight to give it. Crain v. State,
736 N.E.2d 1223, 1233 (Ind. 2000) (citations omitted). Because we conclude that
Livermores tendered instruction is not a correct statement of the law, we need
not consider whether it is supported by the evidence or was adequately covered
by other instructions. The trial court did not abuse its discretion in
V. Sufficiency of the Evidence
Livermore contends that there is insufficient evidence to support his convictions for dealing
in methamphetamine and possession of precursors.
Our standard of review when considering the sufficiency of evidence is well settled.
We will not reweigh the evidence or consider the credibility of witnesses.
Only the evidence most favorable to the verdict, together with all reasonable
inferences that can be drawn therefrom will be considered. If a reasonable
trier of fact could have found the defendant guilty based on the probative
evidence and reasonable inferences drawn therefrom, then a conviction will be affirmed.
Wilson v. State, 754 N.E.2d 950, 957 (Ind. Ct. App. 2001) (citations omitted).
We address each conviction separately.
A. Dealing in Methamphetamine
Livermore contends that because forensic scientist Nickless was unable to specifically quantify the
amount of methamphetamine in the evidence she analyzed, there is insufficient evidence that
he possessed methamphetamine in an amount large enough to support an inference that
he intended to deal it.
Indiana Code Section 35-48-4-2(a)(2)(C) requires that the State prove that Livermore possessed methamphetamine
with the intent to deliver but does not require proof that Livermore possessed
any particular amount of methamphetamine. Nickless analyzed four of the six bags
from Livermores pocket and determined that they contained methamphetamine. As for Livermores intent
to deliver, Hensley confirmed that the methamphetamine from Livermores pocket was packaged for
sale. Additionally, Livermore admitted that he had sold methamphetamine to his friends
and that he had traded methamphetamine for various power tools.
that Livermores possession of methamphetamine packaged for sale and admitted history of delivering
methamphetamine support the inference that he intended to deliver the methamphetamine he possessed
when he was arrested. Thus, there is sufficient evidence to support Livermores
conviction for dealing in methamphetamine.
B. Possession of Precursors
Livermore contends that there is insufficient evidence to support his conviction for possession
of precursors, and we agree. Our review of the record reveals no
evidence that Livermore possessed ether. This court has said that a conviction
of an offense where evidence and reasonable inferences of a material element of
the offense are totally lacking [constitutes fundamental error]. Meredith v. State, 439
N.E. 2d 204, 208 (Ind. Ct. App. 1982). Inasmuch as this fundamental
error is apparent on the face of the record, we are compelled to
reverse [the defendants] convictions sua sponte, although the issues he raises on appeal
do not involve this error. Id.
Under Indiana Code Section 38-48-4-14.5(c)(2), the State was required to prove that Livermore
possessed two or more chemical reagents or precursors with the intent to manufacture
methamphetamine. Initially, the State charged Livermore with possession of anhydrous ammonia and
starting fluid; at trial, the State moved to amend the charging information, replacing
starting fluid with ether.
At most, the State established that Livermore possessed four
empty cans of starting
fluid. During the interview with Livermore, Hensley asked him if he possessed
the empty ether cans or starting fluid cans recovered from his truck.
Tr. at 109-10 (emphasis added). Indiana State Police criminal analyst Daniel Corbert
testified that Starting Fluid cans were recovered from the truck but did not
state whether the cans contained any starting fluid or ether. Id. at
172; see also id. at 173, 176. The only evidence suggesting the
presence of ether was Hensleys testimony that he could smell an odor of
anhydrous ammonia and starting fluid or ether as he stood near Livermores truck.
Id. at 47. Absent any evidence that Livermore possessed receptacles containing
ether or an ether-containing substance, testimony regarding an odor of ether is insufficient
to prove the possession of ether. We therefore reverse Livermores conviction for
possession of precursors.
Affirmed in part and reversed in part.
KIRSCH, J., and DARDEN, J., concur.
Footnote: Ind. Code § 35-48-4-2(a)(2)(C).
Ind. Code § 35-48-4-14.5(c)(2).
Ind. Code § 35-48-4-11(1).
Footnote: Ind. Code §§ 9-21-8-25, -49.
Footnote: The record does not indicate any disposition of the Class C
Footnote: The Fifth Amendment to the United States Constitution provides in relevant
part that no person shall be compelled in any criminal case to be
a witness against himself[.]
Footnote: Although Livermore claimed that he had packaged the methamphetamine in bags
so basically [he] could keep track of how much [he] used, Tr. at
107, the jury was entitled to disbelieve Livermores evidence and to believe the
See Stephenson v. State, 742 N.E.2d 463, 499 (Ind. 2001).
Although it contains ether, starting fluid is not listed as a
chemical reagent and precursor in Indiana Code Section 35-48-4-14.5(a). The listed chemical
reagents and precursors are (1) ephedrine; (2) pseudoephedrine; (3) phenylpropanolamine; (4) the salts,
isomers, and salts of isomers of a substance identified in subdivisions (1) through
(3); (5) anhydrous ammonia or ammonia solution; (6) organic solvents; (7) hydrochloric acid;
(8) lithium metal; (9) sodium metal; (10) ether; (11) sulfuric acid; (12) red
phosphorous; (13) iodine; (14) sodium hydroxide; (15) potassium dichromate; (16) sodium dichromate; (17)
potassium permanganate; and (18) chromium trioxide. For the State to prove that
possession of starting fluid constitutes the possession of ether, it must also establish
that starting fluid contains ether.
Cf. Dolkey v. State, 750 N.E.2d 460,
462-63 (Ind. Ct. App. 2001) (holding that proof of possession of rubbing alcohol
without proof that rubbing alcohol is an organic solvent is insufficient to prove
possession of an organic solvent, a chemical reagent or precursor listed in Indiana
Code Section 35-48-4-14.5(a)). In the instant case, several witnesses testified that starting
fluid contains ether. See, e.g., Tr. at 172.
The State did establish that Livermore possessed Liquid Fire containing sulfuric
acid, which is a precursor listed in Indiana Code Section 35-48-4-14.5(a). We
note, however, that the State did not charge Livermore with possession of sulfuric
acid. Lest there remain any doubt about the constitutional stature of the
reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused
against conviction except upon proof beyond a reasonable doubt of every fact necessary
the crime with which he is charged. In re Winship,
397 U.S. 358, 364 (1970) (emphasis added).