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There was no evidence that a man intended to sell the methamphetamine found in his possession during a traffic stop, a split Court of Appeals of Indiana ruled Wednesday in reversing a dealing conviction.
According to court records, on Dec. 4, 2021, several police officers were at a truck stop in Huntington when they saw the driver and front passenger of an SUV “acting very suspicious,” both “trying to keep an eye on [the officers], but also at the same time hide their face[s].”
One officer recognized the passenger, believed he had an arrest warrant and called dispatch to confirm. Before dispatch could do so, the SUV sped out of the parking lot.
After confirming the warrant, officers caught up to the SUV and pulled it over. They ordered the passenger to exit, and as he did, the officers smelled raw marijuana coming from the SUV.
The officers ordered the driver to exit the SUV and learned he also had a warrant.
Officers then saw Richard Pigott in the back seat “kind of crouching down, hiding his face, and talking on the phone.” There was a backpack on the seat next to Pigott, and Pigott said it belonged to him.
Officers ordered Pigott to exit and then searched the SUV and Pigott’s backpack. Inside the backpack was a digital scale lined with meth residue, more than $2,600 in cash, spoons, a jar of marijuana and Pigott’s wallet.
Pigott told police that the marijuana and cash belonged to him but claimed the scale “shouldn’t be in there” and was not his.
Police also seized and searched Pigott’s phone, and they found Facebook Messenger conversations indicating that Pigott had been selling meth and heroin to various people over the last two days.
The state charged Pigott with Level 5 felony dealing in meth, Level 6 felony possession of meth and Class B misdemeanor possession of marijuana.
A forensic scientist who testified at Pigott’s trial said he had scraped some of the meth residue off the digital scale for testing and determined its weight was too small to be measured, meaning it was less than 0.01 gram.
The jury found Pigott guilty as charged.
The Huntington Superior Court merged the possession count into the dealing count to avoid double jeopardy and entered judgment of conviction on the dealing and marijuana counts. The court imposed concurrent sentences of four years for dealing in methamphetamine and 60 days for possession of marijuana.
Pigott appealed, arguing there was insufficient evidence that he possessed the meth or intended to deliver it.
Partially agreeing, the Court of Appeals reversed Pigott’s dealing conviction and remanded to the trial court with instructions to enter judgment of conviction for Level 6 felony possession of meth and to resentence Pigott accordingly.
Judge Nancy Vaidik wrote the opinion for the appellate court.
According to Vaidik, the appellate court disagreed with Pigott’s argument that he was not in constructive possession of the meth.
“Here, the methamphetamine was in the backpack right next to Pigott, and the backpack contained several other items belonging to Pigott, including his wallet. Also, Pigott acted nervous when asked about the scale and the residue,” Vaidik wrote.
However, Vaidik noted that the state didn’t direct the appellate court to any evidence that Pigott intended to sell, or tried to sell, “the minuscule amount of methamphetamine found on the scale.”
There was also no evidence that Pigott was in the business of selling drug residue or that he was going to try to sell this specific residue, Vaidik continued, and the state’s own evidence showed there is no market for meth residue.
“The issue is whether the State proved that Pigott intended to deal the methamphetamine residue found on the digital scale,” she wrote. “Not only did the State fail to prove that, but its own evidence supported the opposite conclusion.”
Judge Elizabeth Tavitas concurred.
Judge Peter Foley dissented in a separate opinion.
“Inherent in the majority’s holding is that the possession with intent to deliver statute requires a defendant to intend to deliver a minimal amount of methamphetamine and the specific methamphetamine found in the defendant’s possession,” Foley wrote. “I view the majority’s holding to add language to the statute that does not exist.”
According to Foley, because Indiana Code § 35-48-4-1.1(a)(2) does not contain language requiring a minimum amount of meth, the plain language of the statute required the state to prove that a defendant possess some quantity of meth with the intent to deliver.
“I conclude that the State presented sufficient evidence to support Pigott’s conviction for dealing in methamphetamine and would affirm his conviction,” Foley wrote.
The case is Richard Pigott v. State of Indiana, 22A-CR-2999.
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