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Majority reverses conviction based on meth manufacturing

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A divided Indiana Court of Appeals has determined that the state can’t use the amount of manufacturing materials and empty packets of ingredients at a person’s home to prove he was dealing in that substance, without clear evidence the drug would have been produced in that amount.

The ruling came in Douglas W. Fancil v. State of Indiana, No. 20A01-1107-CR-339, with the panel affirming and reversing in part a ruling by Elkhart Circuit Judge Terry Shewmaker.

Douglas W. Fancil appeals his jury conviction for Class A felony dealing with methamphetamine, based on the police finding no meth in his residence and the prosecutor’s reliance on the amount of manufacturing materials and his past history of buying pseudoephedrine as key evidence. At trial, the state called a detective experienced in meth manufacturing to testify about the process and prove that Fancil manufactured the pseudoephedrine into three or more grams of meth.

At the end of the trial, the court instructed the jury on both Class A felony dealing in meth and Class B felony dealing in meth as a lesser-included offense. But the court refused to instruct the jury on the lesser-included offense of possession of reagents or precursors with intent to manufacture methamphetamine. The jury found Fancil guilty and he received a 48-year prison sentence, with four years suspended to probation.

On appeal, the panel found the evidence was insufficient to support the conclusion that Fancil manufactured three or more grams of meth. But the judges found no other error.

Relying on its decision in Halferty v. State, 930 N.E.2d 1149, 1153 (Ind. Ct. App. 2010), that involved similar facts, the appellate panel determined that the police detective’s testimony could not be included because it was not conclusive about how much meth could have been made from the materials in the residence. The Supreme Court denied transfer in that case, and Halferty’s conviction was reversed.

In this case, a two-judge majority remanded the case with instructions to enter a conviction for Class B felony dealing in meth with an appropriate sentence.

Judge L. Mark Bailey disagreed with his colleagues Judges John Baker and Carr Darden, finding the evidence was sufficient to conclude what the state charged. He disagreed that the Halferty precedent applies to these facts and that the police detective’s testimony was more conclusive here than it was in that earlier case. As a result, he would have affirmed the trial court because a reasonable inference that Fancil produced three or more grams of meth was possible.

 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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