from the Huntington Superior Court The Honorable Jennifer
Newton, Judge Trial Court Cause No. 35D01-1511-PC-22
Attorneys for Appellant Stephen T. Owens Public Defender of
Indiana Jonathan O. Chenoweth Deputy Public Defender
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Tyler G. Banks Supervising Deputy Attorney General
Ricci Davis appeals the denial of his petition for
post-conviction relief. We affirm.
and Procedural History
The relevant facts as discussed in Davis's direct appeal
Shortly before 11:00 p.m. on May 19, 2014, a man called the
Huntington County Sheriff's Department on its
non-emergency line and reported that he had a warrant and
"was strung out on meth and to come get him and take it
all out of his house." (Tr. p. 99). In response to the
call, the Sheriff's Department dispatched the Huntington
Police Department to 533 East Franklin Street, Huntington,
Indiana, upon verification that the occupant thereof, Davis,
had an active warrant.
Fifteen minutes after the police had first knocked on the
door, Davis came downstairs, along with Thomas Hale (Hale)
and Amanda (Casto). The officers escorted him outside, placed
him in handcuffs, and administered his Miranda
warnings. Davis indicated that he and Hale had been
manufacturing methamphetamine on the second floor of the
house. Davis further stated that when they heard the officers
knocking on the door, Hale began hiding the supplies. Thus,
Davis offered to accompany the officers inside to show them
where everything was. For safety reasons, the officers would
not allow Davis back into the house, but upon questioning as
to whether there was an active lab that could pose any danger
to the officers, Davis assured them that everything was safe.
As the officers climbed the staircase, they detected the
"very distinct," "overwhelming chemical"
odor associated with manufacturing methamphetamine. (Tr. pp.
247, 262). The odor was most potent in the upstairs bathroom,
emanating from the toilet and the sink in particular. Once
they confirmed that there was nobody else in the house, the
officers went back outside to retrieve their protective gear.
After obtaining consent to search the home from the landlord,
several officers trained in dismantling methamphetamine labs
entered the house to process the scene.
No active methamphetamine lab was discovered, nor did the
police officers recover any finished methamphetamine product.
However, spread throughout nearly every room of the house,
the officers found evidence of all of the ingredients and
other equipment necessary to manufacture methamphetamine,
including: numerous empty boxes and blister packs that had
contained pseudoephedrine pills; empty boxes and the water
bladders from cold compresses and the ammonium nitrate that
had been extracted therefrom; lithium batteries and empty
battery packages; salt; several bottles of drain cleaner
(lye); Liquid Fire (sulfuric acid); three empty one-gallon
containers of Coleman fuel (an organic solvent); coffee
filters; plastic tubing; funnels; Ziploc bags; side cutters
(for stripping the lithium out of the batteries); gas masks;
and latex gloves. The search also revealed a plastic bag
containing a liquid substance; a bottle that had been used as
a "one-pot" (first stage of methamphetamine
manufacturing); at least six bottles that had been used as
hydrochloric gas (HCL) generators (second stage of
methamphetamine manufacturing), one of which was located on
the upstairs toilet lid; a cast iron skillet coated in white
powder; a pill crusher; several loose syringes; and
"partial directions on a couple steps of manufacturing
methamphetamine." (Tr. pp. 206, 211). Testing on the
liquid substance indicated the presence of methamphetamine,
but the sample was too diluted to run a confirmatory test.
Davis v. State, No. 35A02-1411-CR-804, slip op. at
2-5 (Ind.Ct.App. June 2, 2015) ("Davis I").
The State charged Davis with dealing in methamphetamine
within 1, 000 feet of a youth program center as a class A
felony. Id. at 5. In October 2014, the court held a
jury trial. Id. During opening argument, Davis's
trial counsel stated:
And in the end, in the final analysis you will be asked to
make a decision and the decision will be to convict or is
there sufficient evidence to convict Ricci Davis of
manufacturing methamphetamine or in the alternative, is there
sufficient evidence to convict him of the possession of two
(2) or more ingredients for methamphetamine and to convict
him of permitting his house and we call that Maintaining a
Common Nuisance, permitting his house to be used for the
manufacture of methamphetamine.
Ricci Davis isn't going to leave this trial without a
conviction. That is clear. It's clear to me and it's
clear to him. What we are going to ask you ladies and
gentleman of the jury to determine what the conviction or
convictions should actually be. And the Judge will guide you
on that in final instructions.
Trial Transcript Volume II at 93.
During the State's evidence, Dathen Strine, a GIS / IT
Technician for Huntington County, testified regarding the
creation of maps and buffer zones and that on either side of
a point of measurement would be a two and one-half foot
margin of error for a total margin of error of five feet. He
testified he created a map that measured the distance between
Davis's residence and Trinity United Methodist Church.
The court admitted the map as State's Exhibit 58, which
indicates the distance as 970 feet. He stated that the
distance could be as little as 965 feet and as great as 975
feet. He testified that he created a map that measured the
distance between Davis's residence and the Boys &
Girls Club as 940 feet with a total margin of error of five
feet. The court admitted the map as State's Exhibit 59.
Outside the presence of the jury, the parties and the court
discussed the admission of a disclaimer which states in part:
By using this site, I agree that I understand and am bound by
the following conditions.
General. The information on this Web Site was prepared from a
Geographic Information System established by Huntington
County for their internal purposes only, and was not designed
or intended for general use by members of the public.
Huntington County, its employees, agents and personnel, makes
no representation or warranty as to its accuracy, and in
particular, its accuracy as to labeling, dimensions,
contours, property boundaries, or placement or location of
any map features thereon; nor to the accuracy of any other
information contained thereon.
Disclaimer. Huntington County Digital Data is the property of
Huntington County, Indiana © 2000 Huntington County, IN.
All graphic data supplied by Huntington County has been
derived from public records that are constantly undergoing
change and is not warranted for content or accuracy. The
county does not guarantee the positional or thematic accuracy
of the data. . . . The data represents an actual reproduction
of data contained in Huntington County's computer files.
This data may be incomplete or inaccurate, and is subject to
modifications and changes. . . .
Defendant's Exhibit A. The court sustained the
prosecutor's objection to the disclaimer, stated that it
would not allow the disclaimer into evidence, and stated:
"It is a disclaimer of liability and that's what it
is. It's not a declaration as far as accuracy."
Trial Transcript Volume III at 516.
Davis's counsel tendered an instruction which stated that
the jury could consider the included crimes of possession of
chemical reagents or precursors with intent to manufacture
controlled substances, possession of methamphetamine, or
maintaining a common nuisance. The court refused to give the
jury the instruction.
During closing argument, Davis's counsel stated:
[T]he elected prosecutor of Huntington County, ultimately
gets to decide what charges are brought against the defendant
. . . . And tin [sic] this case, ladies and gentlemen, boy
did she reach for that brass ring. She went right for the A
felony. She went right for the crime that has and is in the
same category as aggravated rape and one spot less than
murder. That's what she went for . . . which she's
allowed to do. She has prosecutorial discretion. She can
bring that charge if she wants but that means that she has to
prove every element of that crime to you. It's not enough
that she proves some other lesser crime. She has to prove
that crime to you beyond a reasonable doubt. And I will
submit to you, ladies and gentleman, that she has failed in
Trial Transcript Volume IV at 587. Davis's counsel also
So then they move on to this thousand (1000) feet issue. I
don't dispute that those buildings, by the way, are youth
program centers. Those are good and (INAUDIBLE) programs that
they have out there. They are a great thing for the
community. They should be maintained. But what do we have as
far as distances. Well, we know they didn't go out there
and measure manually. It's what they used to do by the
way. They used to go out with one of those wheels that has
the quickie things on it and every time you go a feet (sic),
you get a foot. That is what they used to do. They don't
do that anymore, apparently. They are content to have someone
who sits downstairs in the same building to get on a computer
and not type in addresses. He doesn't do that. He picks.
He takes his mouse and clicks one spot and goes down. Then he
clicks another spot and gets a distance. Now this has a
margin of error. We know that. He testified that it is a five
(5) foot margin of error. Of course, that is not verified. He
stated they haven't verified that. It could be about
anything. So we've got that margin of error. We've
got the human margin of error. And then and this is the most
important part, he has no idea how they get those . . . those
distances. The head of the GIS website sat here and told you,
"I don't know how they get those photos. I guess
there is a plane or something and they must use a
camera." That's how you are going to convict on an A
felony? 'I guess there is a plan [sic] and there might be
Id. at 597-598.
The jury found Davis guilty as charged. Davis
I, slip op. at 5. After the jury was released, the
This is just for part of the record. I would like the record
to indicate that neither the State nor the defendant had
requested a lesser included offense upon the Class B felony,
Dealing in Methamphetamine. Had it been submitted the Court
would have given to it . . . neither party requested it.
Trial Transcript Volume V at 625. The court sentenced him to
fifty years in the Department of Correction. Davis
I, slip op. at 5.
On direct appeal, Davis argued that the trial court abused
its discretion by failing to instruct the jury on
lesser-included offenses of dealing in methamphetamine and
excluding evidence regarding the accuracy of the State's
measurement of distance between Davis's house and two
youth program centers. Id. at 2. Davis also argued
that his sentence was inappropriate in light of the nature of
the offense and his character. Id. This Court
On November 17, 2015, Davis filed a petition for
post-conviction relief and on June 6, 2018, counsel amended
the petition to include three claims: (1) that the subsection
under which he had been convicted was unconstitutionally
vague; (2) that appellate counsel had provided ineffective
assistance by not raising a vagueness claim; and (3) that
trial counsel provided ineffective assistance by not
tendering jury instructions on manufacturing methamphetamine
as a class B felony and the State's burden to prove less
than 1, 000 feet separated each youth program center from the
exact center where methamphetamine had been made.
On January 7, 2019, the court held an evidentiary hearing.
Attorney Andrew Teel testified that he was Davis's trial
counsel with Attorney Don Swanson as co-counsel. He indicated
that the general trial strategy was to try to convince the
jury "if they were going to enter [a] conviction to
convict on . . . some 'D' Felonies would have been
possession of precursors . . . that sort of thing . . .
rather than going all way for the . . . 'A'
Felony." Post-Conviction Transcript Volume II at 7. When
asked if he ever thought about tendering a jury instruction
on a lesser offense of manufacturing as a class B felony, he
I don't, uh, I-I think that had we been able to get the
evidence of the disclaimer in, I think the answer would have
been yes, um, and obviously you're trying to do anything
you can to avoid 'A' felony, um, but given the-the
facts that were in-in evidence by the time it came around
to-to Instruction time, I don't believe, you know, that
it was, uh, an option, at least in my mind, any longer.
Id. at 9. He indicated it was fair to say that he
did not think that an instruction on the class B felony was
supported by the evidence. He indicated that the decision on
the lesser included offense was probably Attorney
Attorney Swanson testified that he represented Davis as lead
counsel. When asked why he did not consider offering the jury
an instruction on the lesser included offense of
manufacturing as a class B felony,  he answered:
Because, uh, I feel that the Jury were - if you gave the
Jury, uh, too much options you're creating excuses. Uh, I
think that if, uh, if your [sic] delivering on a lesser
included, it should be, a lesser included. Uh, Judge
Heffelfinger appointed me in this case due to conflicts and
the public defender appeal and, uh, I have about as much
respect for him and he for me, uh, but, (laughing)
that's, uh, he was- he was a very, uh, strict sentencing