MEMORANDUM DECISION
                                                                   Sep 23 2015, 8:59 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Steven E. Ripstra                                        Gregory F. Zoeller
Jasper, Indiana                                          Attorney General of Indiana
                                                         Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

James Jay Green III,                                     September 23, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         82A01-1411-CR-474
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
                                                         The Honorable David D. Kiely,
State of Indiana,                                        Judge
Appellee-Plaintiff                                       The Honorable Kelli E. Fink,
                                                         Magistrate
                                                         Cause No. 82C01-1403-FA-275



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-141-CR-474 | September 23, 2015   Page 1 of 30
                                                Case Summary
[1]   James Jay Green, III (“Green”) appeals his convictions and sentences for

      Dealing in Methamphetamine, as a Class A felony, 1 and Possession of

      Methamphetamine, as a Class B felony. 2 We affirm.



                                                        Issues
[2]   Green presents four issues for our review, which we restate as the following

      five:

                 I.        Whether the trial court abused its discretion in admitting
                           evidence seized after a warrantless search of Green’s apartment;
                 II.       Whether there was sufficient evidence to support his conviction
                           for Dealing in Methamphetamine;
                 III.      Whether his convictions for Dealing in Methamphetamine and
                           Possession of Methamphetamine violate principles of double
                           jeopardy under the actual evidence test;
                 IV.       Whether the trial court abused its discretion in failing to find
                           two mitigating factors advanced by Green; and
                 V.        Whether his sentence was inappropriate.


                                 Facts and Procedural History




      1
        Ind. Code §§ 35-48-4-1.1(a)(1)(A) & 35-48-4-1.1(b)(3). Due to substantial revisions to the Indiana Code
      effective July 1, 2014, this offense is now a Level 4 felony. Throughout this opinion, we refer to the versions
      of the statutes in effect at the time of Green’s offense.
      2
          I.C. §§ 35-48-4-6.1(a) & 35-48-4-6.1(b)(2).


      Court of Appeals of Indiana | Memorandum Decision 82A01-141-CR-474 | September 23, 2015            Page 2 of 30
[3]   In the late evening of March 7, 2014, Evansville Police Department (“EPD”)

      officers responded to an anonymous tip received by the EPD and Vanderburgh

      County Sheriff’s Office Joint Task Force that methamphetamine was being

      manufactured in apartment K4 of the Shady Tree Apartments in Evansville.

      When EPD Officer Nathan Hassler (“Officer Hassler”) knocked on the door of

      apartment K4, Green, the lessee, answered and then stepped outside to talk to

      the officer.


[4]   EPD Officer John Montgomery (“Officer Montgomery”) then approached the

      front door where Officer Hassler and Green were standing. As he approached,

      he smelled “a slight chemical odor” (Tr. 52) of a solvent that he “believed to be

      Coleman fuel” coming from the apartment. (Tr. 56.) Based on his training and

      experience, Officer Montgomery associated the odor with the manufacture of

      methamphetamine. He then informed Officer Hassler that he smelled a

      “chemical smell.” (Tr. 148.)


[5]   Officer Hassler asked Green if anyone else was inside the apartment, and Green

      stated that his girlfriend, Cherron Roberts (“Roberts”), was in the bedroom.

      From his experience and training, Officer Hassler knew meth labs “are very

      dangerous and they can explode[.]” (Tr. 42.) Because “the chemical smell, it’s

      a safety hazard” (Tr. 151), Officer Hassler entered the apartment without a

      warrant or Green’s consent. Officer Hassler executed the search for the limited

      purpose of retrieving Roberts from the apartment.




      Court of Appeals of Indiana | Memorandum Decision 82A01-141-CR-474 | September 23, 2015   Page 3 of 30
[6]   Upon entering the apartment, Officer Hassler observed in plain view on a coffee

      table a tied corner baggie containing a white powdery substance, which he

      suspected was methamphetamine. He passed through the living room and

      discovered Roberts in the back bedroom. Items consistent with the

      manufacture of methamphetamine, including aluminum foil, lye, a box of cold

      packs (instant cold compresses), and plastic tubing, were also in plain view on

      the bedroom floor. Officer Hassler permitted Roberts to put on some clothing

      and secure her dog in the bathroom before escorting her out of the apartment.

      He then contacted the Joint Task Force’s Methamphetamine Suppression Unit.


[7]   Based on information he received from Officer Hassler, Vanderburgh County

      Sheriff’s Office Detective J.J. Budde (“Detective Budde”) secured a warrant to

      search the apartment. When executing the warrant, officers found precursors to

      and items commonly associated with the manufacture of methamphetamine,

      including: ninety-six pills (5.6 grams) of pseudoephedrine-based cold medicine

      in blister packs removed from the boxes, salt, Coleman fuel, Drain Out drain

      cleaner containing lye (sodium hydroxide), cold compresses containing

      ammonia nitrate, a lithium battery, Liquid Fire (sulfuric acid), clean plastic

      bottles with the labels removed, a funnel, aluminum foil, cutting tools, tubing

      run through a bottle cap, coffee filters, and a digital scale. The apartment’s

      hard-wired smoke detector had been disconnected and removed.


[8]   A coffee filter containing a white powdery substance was found in Roberts’s

      purse in the living room. Police found in the bedroom closet a dinner plate

      containing a white powdery substance, which the officer collected from the

      Court of Appeals of Indiana | Memorandum Decision 82A01-141-CR-474 | September 23, 2015   Page 4 of 30
       plate and placed in a plastic bag. Subsequent testing by the Indiana State Police

       laboratory revealed that both the coffee filter and the plate powder tested

       positive for methamphetamine. A syringe was found in the bedroom closet. A

       smoking pipe with burnt residue was found on a chest by the bed. Two

       additional syringes and a spoon were found in a chest drawer next to

       prescriptions labeled with Green’s name.


[9]    Officers also found in Roberts’s purse receipts from Wal-Mart, Rural King, and

       Dollar General from February 23, March 4, and March 7, 2014 for purchases of

       Coleman fuel, salt, a 1.5 liter bottled soda, cold compresses, a lithium battery,

       and coffee filters. A March 7, 2014 Rural King receipt for the purchase of

       Drain Out was found in Green’s pocket. Green was placed under arrest.

       Detective Budde later obtained surveillance video from the Wal-Mart, Dollar

       General, and Rural King stores, which showed Green and Roberts, either

       together or individually, purchasing items from those stores on February 23,

       March 4, and March 7, 2014.


[10]   On March 11, 2014, Green was charged with Dealing in Methamphetamine, as

       a Class A felony 3 (“Count 1”), and Possession of Methamphetamine, as a Class

       B felony (“Count 2”). Also on March 11, 2014, the State alleged that Green




       3
        The code section captioned “Dealing in methamphetamine” also prohibits methamphetamine manufacture.
       Originally, the State charged that Green “did possess with the intent to manufacture methamphetamine” in
       violation of Indiana Code section 35-48-4-1.1(a)(2). (App. 9.)

       Court of Appeals of Indiana | Memorandum Decision 82A01-141-CR-474 | September 23, 2015     Page 5 of 30
       was a Habitual Substance Offender. 4 On June 20, 2014, the State amended

       Count 1, alleging that Green “did knowingly or intentionally manufacture

       methamphetamine[.]” 5 (App. 12.)


[11]   On April 23, 2014, Green filed a motion to suppress all evidence seized from

       his apartment, arguing that the evidence was obtained through an illegal search

       and seizure in violation of the Fourth Amendment to the U.S. Constitution and

       Article 1, Section 11 of the Indiana Constitution. A suppression hearing was

       held on May 29, 2014, after which the motion was denied on June 10, 2014.


[12]   A jury trial was held on June 23 and 24, 2014, at the conclusion of which Green

       was found guilty of both counts. Under Count 1, the jury also found Green

       guilty of Attempted Dealing in Methamphetamine. The trial court found that

       Attempted Dealing in Methamphetamine was a lesser-included offense of

       Dealing in Methamphetamine, and entered judgments of conviction only on

       Dealing in Methamphetamine and Possession of Methamphetamine. Green

       then admitted to having two prior unrelated substance abuse convictions, and

       the court adjudicated him a habitual substance offender.




       4
           I.C. § 35-50-2-10.
       5
         We note that the amended charging information for Count 2 cites Indiana Code section 35-48-4-
       1.1(a)(1)(B), which prohibits financing the manufacture of methamphetamine. However, the allegation
       contained in the information relates to subsection (a)(1)(A) because it alleges that Green “did knowingly or
       intentionally manufacture methamphetamine.” (App. 12.) It is well settled that the allegation in the body of
       the information, not the cited statute, defines the crime. Hestand v. State, 491 N.E.2d 976, 980 (Ind. 1986).
       The jury was instructed on knowingly or intentionally manufacturing.

       Court of Appeals of Indiana | Memorandum Decision 82A01-141-CR-474 | September 23, 2015          Page 6 of 30
[13]   On October 9, 2014, a sentencing hearing was held. Green was sentenced to

       thirty-five years in the Indiana Department of Correction (“DOC”) on Count 1

       to be served concurrently with a two-year sentence in the DOC on Count 2.

       The court subsequently corrected Green’s sentence on Count 2 to reflect his

       conviction for a Class B felony, and sentenced him to twelve years in the DOC,

       to run concurrently with his sentence in Count 1. The court also enhanced

       Green’s sentence on Count 1 by three years due to his status as a habitual

       substance offender, yielding an aggregate sentence of thirty-eight years.


[14]   Green now appeals his convictions and sentences.



                                  Discussion and Decision
                                      Admission of Evidence
[15]   Green first argues that Officer Hassler’s warrantless entry into his apartment

       violated his rights under the Fourth Amendment to the U.S. Constitution and

       Article 1, Section 11 of the Indiana Constitution. Because a warrant was

       subsequently obtained based on items Officer Hassler observed in plain view

       when he was inside the apartment, Green argues that all evidence seized from

       his apartment must be suppressed as “fruit of the poisonous tree.” 6




       6
        Although the warrant is not included in the appendix, Green contends and the State concedes that the
       warrant was obtained based on Officer Hassler’s observations made inside the apartment during the
       warrantless search.

       Court of Appeals of Indiana | Memorandum Decision 82A01-141-CR-474 | September 23, 2015        Page 7 of 30
[16]   Where a pretrial motion to suppress is denied, the case proceeds to trial, and the

       defendant renews his objection to the admission of the evidence, the issue is

       best framed as challenging the admission of evidence at trial. Clark v. State, 994

       N.E.2d 252, 259 (Ind. 2013). The trial court has broad discretion to rule on the

       admissibility of evidence at trial. Guilmette v. State, 14 N.E.3d 38, 40 (Ind.

       2014). We review the court’s ruling for abuse of that discretion and reverse

       only when admission is clearly against the logic and effect of the facts and

       circumstances before the court and the error affects a party’s substantial rights.

       Id. (citation and quotation marks omitted). An appellant’s challenge to the

       constitutionality of a search or seizure raises a question of law, which we

       review de novo. Id. at 40-41.


                                          Fourth Amendment
[17]   The Fourth Amendment provides, in relevant part: “The right of the people to

       be secure in their persons, houses, papers, and effects, against unreasonable

       searches and seizures, shall not be violated . . . .” The Fourth Amendment’s

       protections against unreasonable searches and seizures extend to the States

       through the Fourteenth Amendment. Taylor v. State, 842 N.E.2d 327, 330 (Ind.

       2006) (citing Mapp v. Ohio, 367 U.S. 643, 650 (1961); Berry v. State, 704 N.E.2d

       462, 464-65 (Ind. 1998)).


[18]   “It is axiomatic that the ‘physical entry of the home is the chief evil against

       which the wording of the Fourth Amendment is directed.’” State v. Straub, 749

       N.E.2d 593, 597 (Ind. Ct. App. 2001) (quoting United States v. U.S. Dist. Court,


       Court of Appeals of Indiana | Memorandum Decision 82A01-141-CR-474 | September 23, 2015   Page 8 of 30
       407 U.S. 297, 313 (1972)). A principal protection against unnecessary

       intrusions into private dwellings is the Fourth Amendment’s warrant

       requirement. Id. Searches performed by government officials without

       obtaining warrants are per se unreasonable under the Fourth Amendment,

       subject to a “few specifically established and well-delineated exceptions.”

       Holder v. State, 847 N.E.2d 930, 935 (Ind. 2006) (quoting Katz v. U.S., 389 U.S.

       347, 357 (1967)). The State bears the burden of proving that an exception to the

       warrant requirement applied at the time of a warrantless search. Id. The

       remedy for an illegal warrantless search is the suppression of the evidence

       obtained from the search. Cudworth v. State, 818 N.E.2d 133, 137 (Ind. Ct. App.

       2004), trans. denied.


[19]   One exception allows police officers to dispense with the warrant requirement

       where exigent circumstances exist. Holder, 847 N.E.2d at 936. As our supreme

       court has explained:

               The warrant requirement becomes inapplicable where the “‘exigencies
               of the situation’ make the needs of law enforcement so compelling that
               the warrantless search is objectively reasonable under the Fourth
               Amendment.” Mincey v. Arizona, 437 U.S. 385, 393–94, 98 S. Ct.
               2408, 2414, 57 L. Ed. 2d 290, 301 (1978). Among the exigencies that
               may properly excuse the warrant requirement are threats to the lives
               and safety of officers and others and the imminent destruction of
               evidence. See Minnesota v. Olson, 495 U.S. 91, 100, 110 S. Ct. 1684,
               1690, 109 L. Ed. 2d 85, 95 (1990). Law enforcement may be excused
               from the warrant requirement because of exigent circumstances based
               on concern for safety as long as the State can prove that a delay to wait
               for a warrant would gravely endanger the lives of police officers and
               others. Warden v. Hayden, 387 U.S. 294, 298–99, 87 S. Ct. 1642, 1646,



       Court of Appeals of Indiana | Memorandum Decision 82A01-141-CR-474 | September 23, 2015   Page 9 of 30
               18 L. Ed. 2d 782, 787 (1967); see also Geimer v. State, 591 N.E.2d 1016,
               1019 (Ind. 1992).
       Id. at 936-37. A police officer’s subjective belief that exigent circumstances exist

       is insufficient to justify a warrantless entry into a home or apartment; rather, the

       test is objective and the State must establish that the circumstances as they

       appear at the moment of entry would lead a reasonable, experienced law

       enforcement officer to believe that someone inside is in need of immediate aid.

       Cudworth, 818 N.E.2d at 137 (citing United States v. Richardson, 208 F.3d 626,

       629 (7th Cir. 2000)).


[20]   The State contends that because the manufacture of methamphetamine is a

       volatile chemical process, Officer Montgomery’s detection of a chemical smell

       associated with methamphetamine manufacture constituted exigent

       circumstances that justified a “brief and limited warrantless search to find and

       remove Roberts from the apartment for her safety.” (Appellee’s Br. 14.) Green

       argues, however, that a slight chemical odor was not sufficient to establish

       exigent circumstances and that the chemical smell “was clearly a pretext” for a

       warrantless entry into his apartment. (Appellant’s Br. 17.) He points to this

       Court’s decision in State v. Crabb, in which this Court expressed hesitancy to

       “draw a bright line which would allow officers to enter a home without a

       warrant based solely on the smell of ether[,]” a substance commonly used in the

       manufacture of methamphetamine. 835 N.E.2d 1068, 1071 (Ind. Ct. App.

       2005), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 82A01-141-CR-474 | September 23, 2015   Page 10 of 30
[21]   In this case, police officers were responding to an anonymous tip that

       methamphetamine was being manufactured in apartment K4. After Green

       opened the door, Officer Montgomery, who had training and experience with

       detecting clandestine methamphetamine labs, testified that he detected “a slight

       chemical odor” that he had smelled at “some previous meth labs I’ve dealt

       with.” (Tr. 52.) Specifically, he smelled “[s]olvents” (Tr. 54), which he

       “believed to be Coleman fuel.” (Tr. 56.) Officer Montgomery was aware that

       Coleman fuel is commonly used in the “one-pot” method of methamphetamine

       manufacture. For his part, Officer Hassler was aware that methamphetamine

       labs “are very dangerous and they can explode[.]” (Tr. 42.) He believed “the

       chemical smell, it’s a safety hazard.” (Tr. 151.) After Green confirmed that

       another person was in the apartment, Officer Hassler decided to enter the

       apartment. 7 Officer Hassler explained:

                Let’s just say that [. . .] there was a meth lab in there, let’s just
                completely say that. If that is, in fact, true, those things are very
                dangerous and they can explode, and I don’t want somebody like
                shaking one up and then tossing it out the door, and then here I am
                gettin’ blown up by a meth lab . . . .




       7
         At the suppression hearing, Officer Hassler called his entry into the apartment a “protective sweep.” (Tr.
       27.) As explained by this Court: “In Maryland v. Buie, 494 U.S. 325, 334 (1990), the Supreme Court held that
       incident to an arrest, police officers may, as a precautionary matter and without probable cause or reasonable
       suspicion, conduct a brief search of areas immediately adjoining the place of arrest from which an attack
       could be immediately launched.” Cudworth, 818 N.E.2d at 138. Green was not under arrest at the time
       Officer Hassler entered the apartment. The State does not argue, and denies that it ever argued, that Officer
       Hassler’s entry was a protective sweep incident to an arrest.

       Court of Appeals of Indiana | Memorandum Decision 82A01-141-CR-474 | September 23, 2015          Page 11 of 30
       (Tr. 42-43.) He also expressed concern for the occupant’s safety, stating that

       while inside the building he was “just concerned with getting her out of the

       apartment.” (Tr. 28.)


[22]   Although the Court in Crabb expressed a hesitancy to find exigent

       circumstances solely based on the smell of ether, the Court ultimately held that

       the smell of ether, evidence that the apartment was occupied, and a report that

       a child was present “caused Troopers to reasonably believe that a person inside

       the apartment was in immediate need of aid.” 835 N.E.2d at 1071. Here, too,

       Officer Hassler’s concern for the safety of officers and a person known to be in

       an apartment in which police suspected methamphetamine was being

       manufactured was sufficient to justify the warrantless entry into Green’s

       apartment under the exigent circumstances exception. See also Holder, 847

       N.E.2d at 939 (holding that warrantless entry into a home was justified by

       exigent circumstances where extremely strong odor of ether was detected

       coming from the home, officers suspected methamphetamine manufacture

       based on defendant’s omissions, officer knew of dangers of manufacturing

       process, and home was occupied by persons including a child); VanWinkle v.

       State, 764 N.E.2d 258, 266 (Ind. Ct. App. 2002) (upholding the warrantless

       entry into a defendant’s home after callers reported a strong ether odor

       emanating from the house, police smelled the odor and observed evidence of

       methamphetamine manufacture from outside, police knew the dangers of the

       manufacturing process, and two people were in the house), trans. denied. As this

       Court stated in VanWinkle, “[t]he combined knowledge of the fact that the


       Court of Appeals of Indiana | Memorandum Decision 82A01-141-CR-474 | September 23, 2015   Page 12 of 30
       manufacture of methamphetamine can be very dangerous and the fact that

       there were still other people in the residence would cause any reasonable police

       officer to see the immediate need to remove any remaining persons from the

       residence.” 764 N.E.2d at 266. The State carried its burden to establish that

       the exigent circumstances exception to the warrant requirement applied at the

       time Officer Hassler entered Green’s apartment.


                                           Article 1, Section 11
[23]   Green also argues that the warrantless search of his apartment violated Article

       1, Section 11 of the Indiana Constitution. 8


[24]   The language of Section 11 mirrors the Fourth Amendment’s protections

       against unreasonable searches and seizures. U.S. Const. amend. IV; Ind.

       Const. art 1, § 11; Trowbridge v. State, 717 N.E.2d 138, 143 (Ind. 1999).

       However, the test for determining a rights violation differs between the two

       provisions. Trowbridge, 717 N.E.2d at 143. Analysis under Article 1, Section

       11 turns on the specific facts of each case and whether police conduct is

       reasonable in light of the totality of the circumstances. VanWinkle, 764 N.E.2d

       at 266. “[T]he totality of the circumstances requires consideration of both the

       degree of intrusion into the subject’s ordinary activities and the basis upon



       8
         The State contends that although Green cited the Indiana Constitution and its test, Green failed to present
       an independent analysis under the state standard and therefore the issue is waived. Although Green’s
       discussion of the Indiana standard is minimal, Green cited to relevant case law on exigent circumstances that
       interprets both the federal and state standards. (See Appellant’s Br. 11-13 (citing VanWinkle, 764 N.E.2d
       258)). As the discussion is no more or less developed than his Fourth Amendment argument, we address the
       issue.

       Court of Appeals of Indiana | Memorandum Decision 82A01-141-CR-474 | September 23, 2015         Page 13 of 30
       which the officer selected the subject of the search or seizure.” Litchfield v. State,

       824 N.E.2d 356, 360 (Ind. 2005). “Our determination of the reasonableness of

       a search or seizure under Section 11 often ‘turn[s] on a balance of: 1) the degree

       of concern, suspicion, or knowledge that a violation has occurred, 2) the degree

       of intrusion the method of the search or seizure imposes on the citizen’s

       ordinary activities, and 3) the extent of law enforcement needs.’” Holder, 847

       N.E.2d at 940 (quoting Litchfield, 824 N.E.2d at 361).


[25]   In this case, the officers suspected methamphetamine manufacture based on an

       anonymous tip. When Green opened the door, an officer detected a chemical

       smell, which based on his training and experience the officer associated with

       methamphetamine labs. Both officers were aware that methamphetamine labs

       use flammable chemicals and involve a volatile process that presents risk of

       explosions. After Green informed the officer that Roberts was inside the

       apartment, Officer Hassler entered and removed Roberts from the premises.


[26]   Although the degree of intrusion was high, law enforcement’s need to ensure

       safety in light of the known dangers associated with clandestine

       methamphetamine labs outweighs the intrusion. We therefore conclude that,

       based on the totality of the circumstances, Officer Hassler’s entry into the

       apartment was reasonable under Article 1, Section 11. See VanWinkle, 764

       N.E.2d at 267 (finding that the warrantless entry into a residence was

       reasonable under Article 1, Section 11 “because, had the officers taken the time

       to get a search warrant at that point, the people remaining in the residence

       could have been injured by the volatile manufacturing process, could have

       Court of Appeals of Indiana | Memorandum Decision 82A01-141-CR-474 | September 23, 2015   Page 14 of 30
       destroyed evidence, and/or could have attempted to inflict harm upon the

       officers or others.”).


[27]   The limited warrantless entry of Green’s apartment was justifiable under the

       exigent circumstances exception to the warrant requirement and was reasonable

       under Article 1, Section 11. The trial court did not abuse its discretion in

       admitting the evidence seized after police obtained a warrant based on items

       observed in plain view during the officer’s warrantless entry.


                                                 Sufficiency
[28]   Green next argues there was insufficient evidence to support his conviction for

       Dealing in Methamphetamine. 9


[29]   Our standard of review for sufficiency of the evidence claims is well settled.

       We consider only the probative evidence and reasonable inferences supporting

       the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess

       the credibility of witnesses or reweigh evidence. Id. We will affirm the

       conviction unless “no reasonable fact-finder could find the elements of the

       crime proven beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726

       N.E.2d 268, 270 (Ind. 2000)). “The evidence is sufficient if an inference may




       9
        Although Green’s statement of the issue purportedly challenges the sufficiency of the evidence to support
       both convictions, he presents argument only as to Dealing in Methamphetamine. Thus, we do not review the
       sufficiency of the evidence to support his Possession of Methamphetamine conviction.

       Court of Appeals of Indiana | Memorandum Decision 82A01-141-CR-474 | September 23, 2015      Page 15 of 30
       reasonably be drawn from it to support the verdict.” Id. at 147 (quoting Pickens

       v. State, 751 N.E.2d 331, 334 (Ind. Ct. App. 2001)).


[30]   A person who knowingly or intentionally manufactures methamphetamine,

       pure or adulterated, commits dealing in methamphetamine, a Class B felony.

       I.C. §§ 35-48-4-1.1(a)(1)(A). The offense is a Class A felony if the person

       manufactured the drug in, on, or within one thousand feet of a family housing

       complex. I.C. § 35-48-4-1.1(b)(3). 10 “Manufacture” includes the “production,

       preparation . . . or processing of a controlled substance . . . .” I.C. § 35-48-1-18.


[31]   The State charged that on or about March 7, 2014, Green “did knowingly or

       intentionally manufacture methamphetamine, pure or adulterated, within one

       thousand (1000) feet [of a] family housing complex[.]” (App. 12.)


[32]   At trial, EPD Detective Brock Hensley (“Detective Hensley”) described in

       detail the “one pot” methamphetamine manufacturing process. 11 The State

       then introduced evidence that all of the precursors and items necessary to the

       “one pot” method were found throughout Green’s apartment. Videotape

       introduced at trial showed Green and Roberts purchasing many of these items

       in the days leading to Green’s arrest. In addition to the precursors, the plastic




       10
         A “family housing complex” means a building or series of buildings that is operated as an apartment
       complex. I.C. § 35-31.5-2-127(3). Green does not challenge the State’s evidence that Shady Tree Apartments
       was an apartment complex and thus within one thousand feet of a family housing complex.
       11
         In summarizing the precursors and items necessary to manufacture methamphetamine, he listed:
       pseudoephedrine, Coleman fuel (an organic solvent), lye, ammonia nitrate, lithium batteries (or some water-
       reacting metal), sulfuric acid (usually Liquid Fire), salt, tubing and a bottle, and a reaction vessel.

       Court of Appeals of Indiana | Memorandum Decision 82A01-141-CR-474 | September 23, 2015       Page 16 of 30
       bottle labels had been removed, 12 tubing was inserted through a bottle cap, 13 the

       apartment’s smoke detector had been disabled, 14 and the pseudoephedrine pills

       were removed from the box. Upon arrival at the apartment, Officer

       Montgomery smelled a chemical odor he associated with methamphetamine

       manufacture. Further, a coffee filter containing methamphetamine was found

       in Roberts’s purse on or near the coffee table in Green’s living room. Detective

       Hensley testified that coffee filters are commonly used to dry out

       methamphetamine after production and before consumption. He further

       testified “I’ve never seen [a person] sell a coffee filter with meth to someone

       else.” (Tr. 122.)


[33]   Green cites numerous appellate cases reviewing the sufficiency of evidence

       presented to support Dealing in Methamphetamine convictions, arguing that in

       every case more evidence was present than here. He notes that the precursors

       found throughout Green’s apartment “were not mixed, altered or crushed.”

       (Appellant’s Br. 19.) Green argues that “the only item the State contended was

       proof of a manufacturing process was the piece of tubing running through a




       12
          Detective Budde testified that in his experience, labels are usually torn off so that the manufacturer can
       view the reaction going on inside.
       13
          Detective Hensley testified that tubing pushed through a bottle cap and a plastic bottle are used to “smoke
       off” methamphetamine oil and convert it into a useable form of methamphetamine.
       14
          EPD Detective Patrick McDonald (“Detective McDonald”) testified that hard-wired smoke detectors are
       often removed during the manufacture of methamphetamine because the chemical reaction can produce
       smoke and often releases other matter into the air that can trigger an alarm.

       Court of Appeals of Indiana | Memorandum Decision 82A01-141-CR-474 | September 23, 2015            Page 17 of 30
       bottle cap.” (Appellant’s Br. 20.) In essence, he argues that there was

       insufficient evidence of manufacturing to support his conviction. 15


[34]   “Indiana courts have consistently held that the manufacturing process need not

       be complete to violate the manufacturing statute.” Buelna v. State, 20 N.E.3d

       137, 141 (Ind. 2014). Sufficient evidence of manufacturing has been found

       where the evidence shows that steps taken to manufacture were in progress at

       the scene. See, e.g., Bush v. State, 772 N.E.2d 1020, 1023 (finding sufficient

       evidence that defendant knowingly manufactured methamphetamine where

       police found at the defendant’s residence several items used in

       methamphetamine manufacture and the State introduced testimony that the lab

       was “in process”). See also Floyd v. State, 791 N.E.2d 206, 210 (Ind. Ct. App.

       2003) (where all precursors, chemical reagents, equipment to manufacture

       methamphetamine, and a small amount of finished methamphetamine were

       found in a mobile home belonging to “Nelson,” there was sufficient evidence of

       manufacturing such that the only dispositive issue was whether the defendant

       had constructive possession of the evidence), trans. denied.


[35]   Here, there was no testimony that the lab was currently in process. However,

       Green had collected all of the precursors and items necessary to manufacture




       15
          In its brief, the State argues there was sufficient evidence to support the jury’s guilty verdict for Attempted
       Dealing in Methamphetamine, but does not address Green’s conviction for Dealing in Methamphetamine.
       Although the jury found Green guilty of both Attempted Dealing and Dealing in Methamphetamine, the trial
       court found that Attempted Dealing was a lesser-included offense of Dealing in Methamphetamine and
       entered judgment of conviction on Dealing in Methamphetamine. We review the sufficiency of the evidence
       to support the offense of which Green was convicted.

       Court of Appeals of Indiana | Memorandum Decision 82A01-141-CR-474 | September 23, 2015             Page 18 of 30
       methamphetamine using the “one pot” method. He had also begun the process

       by removing the reaction vessel labels, pushing tubing through a bottle cap, and

       removing the pseudoephedrine pills from the box. There was an active smell of

       solvent in the apartment. And a coffee filter with methamphetamine indicative

       of home manufacturing, rather than purchase, was found in a common area.

       This was sufficient evidence from which a reasonable fact-finder could infer that

       methamphetamine was being manufactured.


[36]   Green argues, however, that even if this was sufficient evidence of

       manufacturing, there was “a reasonable explanation: All the items were

       [Roberts’s].” (Appellant’s Br. 27.) To the extent that Green asks us to reweigh

       the evidence by pointing to testimony implicating Roberts, we decline Green’s

       invitation. However, to the extent Green implies that there was insufficient

       evidence that he possessed the items used in the manufacturing process, we

       disagree. Possession of contraband can be either actual or constructive.

               Constructive possession is established by showing that the defendant
               has both the intent and capability to maintain dominion and control
               over the contraband. Person v. State, 661 N.E.2d 587, 590 (Ind. Ct.
               App. 1996), trans. denied. In cases where the accused has exclusive
               possession of the premises on which the contraband is found, an
               inference is permitted that he or she knew of the presence of
               contraband and was capable of controlling it. Id. However, when
               possession of the premises is non-exclusive, the inference is not
               permitted absent some additional circumstances indicating knowledge
               of the presence of the contraband and the ability to control
               it. Id. Among the recognized “additional circumstances” are: (1)
               incriminating statements by the defendant; (2) attempted flight or
               furtive gestures; (3) a drug manufacturing setting; (4) proximity of the
               defendant to the contraband; (5) contraband is in plain view; and (6)


       Court of Appeals of Indiana | Memorandum Decision 82A01-141-CR-474 | September 23, 2015   Page 19 of 30
               location of the contraband is in close proximity to items owned by the
               defendant. Id.
       Floyd, 791 N.E.2d at 210-11.


[37]   Here, the precursors and manufacturing tools were found dispersed throughout

       Green’s apartment in close proximity to his personal items. Many of the items

       were found in plain view. Although the coffee filter was found in Roberts’s

       purse, the purse was in the apartment living room while Roberts was in the

       bedroom. Roberts was Green’s girlfriend at the time. Videotape introduced

       into evidence showed Green purchasing, both with Roberts and independently,

       some of the precursors and manufacturing items. All of this evidence supports

       the inference that Green had intent and capability to maintain dominion and

       control over the items necessary to manufacture methamphetamine.


[38]   There was sufficient evidence to support Green’s conviction for Dealing in

       Methamphetamine.


                                           Double Jeopardy
[39]   Article 1, Section 14 of the Indiana Constitution provides: “No person shall be

       put in jeopardy twice for the same offense.” Indiana’s Double Jeopardy Clause

       prevents the State from being able to proceed against a person twice for the

       same criminal transgression. Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999).

       Under Article 1, Section 14, two or more offenses are the same offense “if, with

       respect to either the statutory elements of the challenged crimes or the actual

       evidence used to convict, the essential elements of one challenged offense also

       establish the essential elements of another challenged offense.” Id. Whether
       Court of Appeals of Indiana | Memorandum Decision 82A01-141-CR-474 | September 23, 2015   Page 20 of 30
       multiple convictions violate the prohibition against double jeopardy is a

       question of law that the Court reviews de novo. Weddle v. State, 997 N.E.2d 45,

       47 (Ind. Ct. App. 2013), trans. denied.


[40]   Under the actual evidence test, the evidence presented at trial is examined to

       determine whether each challenged offense was established by separate and

       distinct facts. Richardson, 717 N.E.2d at 53. “To show that two challenged

       offenses constitute the ‘same offense’ in a claim of double jeopardy, a defendant

       must demonstrate a reasonable possibility that the evidentiary facts used by the

       fact-finder to establish the essential elements of one offense may also have been

       used to establish the essential elements of a second challenged offense.” Id. If

       the evidentiary facts establishing one offense establish only one or several, but

       not all, of the essential elements of the second offense, there is no double

       jeopardy violation. Micheau v. State, 893 N.E.2d 1053, 1065 (citing Spivey v.

       State, 761 N.E.2d 831, 833 (Ind.2002)), trans. denied. When applying the actual

       evidence test, we identify the essential elements of each challenged crime and

       evaluate the evidence from the jury’s perspective, considering where relevant

       the jury instructions, argument of counsel, and other factors that may have

       guided the jury’s determination. Lamagna v. State, 776 N.E.2d 955, 959 (Ind.

       Ct. App. 2002).


[41]   In Count 1, Green was charged with violating Indiana Code section 35-48-4-

       1.1(a)(1)(A), which provides: “A person who . . . knowingly or intentionally . . .

       manufactures . . . methamphetamine, pure or adulterated . . . commits dealing

       in methamphetamine, a Class B felony[.]” The offense is a Class A felony if the

       Court of Appeals of Indiana | Memorandum Decision 82A01-141-CR-474 | September 23, 2015   Page 21 of 30
       person manufactured the drug in, on, or within one thousand feet of a family

       housing complex. I.C. § 35-48-4-1.1(b)(3). In Count 2, Green was charged

       with violating Indiana Code section 35-48-4-6.1(a), which provides: “A person

       who, without a valid prescription or order of a practitioner acting in the course

       of the practitioner’s professional practice, knowingly or intentionally possesses

       methamphetamine (pure or adulterated) commits possession of

       methamphetamine, a Class D felony[.]” The offense is a Class B felony if the

       person in possession of methamphetamine possesses less than three grams of

       pure or adulterated methamphetamine in, on, or within one thousand feet of a

       family housing complex. I.C. § 35-48-4-6.1(b)(2).


[42]   In this case, the State presented evidence that 0.61 grams of methamphetamine

       was found on a plate in Green’s bedroom closet. Various paraphernalia

       associated with methamphetamine use, including syringes, a spoon, and a

       smoking pipe, were found in the apartment. Two syringes and a spoon were

       found in a bedroom chest drawer next to prescriptions labeled with Green’s

       name. In its closing arguments, the State did not discuss at any length the

       Possession of Methamphetamine charge, arguing to the jury simply that the

       methamphetamine “wasn’t in his pocket, but it was in his home.” (Tr. 631-

       32.) 16




       16
         The State at one point argued that finished product was “on his livingroom [sic] table.” (Tr. 594.)
       However, the tied corner baggie on the coffee table that Officer Hassler suspected was methamphetamine
       was never tested. The only items tested were the coffee filter and the powder on the plate.

       Court of Appeals of Indiana | Memorandum Decision 82A01-141-CR-474 | September 23, 2015      Page 22 of 30
[43]   The State also presented evidence that Green had collected all of the precursors

       necessary to manufacture methamphetamine, constructed tools needed in the

       manufacturing process, and possessed a coffee filter with methamphetamine

       indicative of the manufacturing process. The State focused its closing

       arguments on the Dealing in Methamphetamine charge, summarizing the

       evidence as thus:

               In fact, Detective Budde told you that they had salt, lithium batteries,
               Coleman camping fuel, Liquid Fire, pseudoephedrine, cold packs, a
               funnel, aluminum foil, coffee filters, reaction vessels, HCL generators,
               tubing, tubing through the cap of the 20 ounce or 2 liter bottle, and lye
               which you saw the defendant purchase. You heard from Officer
               Montgomery who said he smelled a chemical reaction, chemical odor,
               that he associated with the manufacture of methamphetamine. You
               heard from the chemist from the Indiana State Police lab, extensively,
               that the product that was . . . the item found in the apartment was, in
               fact, methamphetamine. [. . . .] There were supplies everywhere.
               Some of them common household items, I agree, but they had them
               all, and they had finished product, methamphetamine, on the coffee
               filters which were located in the co-defendant’s purse. Remember the
               testimony from Detective McDonald that you dry the
               methamphetamine out to have your finished product on the coffee
               filters, that’s what they’re used for. Remember Detective Budde telling
               you that they often time strip the packaging or the labeling off the 2
               liter bottles so that they can see inside, they can see the reaction. [. . .
               .] Ladies and gentleman, they had gathered all of the evidence needed
               to manufacture methamphetamine and by removing the smoke
               detector, by inserting the tubing through the cap, by shredding the
               pseudoephedrine box, taking the pills out of it . . . [t]hey had begun the
               process of manufacturing methamphetamine . . . .
       (Tr. 591-93.)


[44]   Green contends that the “common, essential element of both crimes [is] a

       knowing or intentional possession of methamphetamine” and that “Possession

       Court of Appeals of Indiana | Memorandum Decision 82A01-141-CR-474 | September 23, 2015   Page 23 of 30
       is a lesser-included offense of Manufacturing/Dealing, based upon [these]

       facts.” (Appellant’s Br. 31.) He seems to argue that the finished

       methamphetamine was used to support both convictions in violation of the

       actual evidence test.


[45]   The State acknowledges that during closing arguments, the prosecutor argued

       that the presence of finished methamphetamine product in the apartment was

       “not only evidence of possession” but “also evidence of the manufacturing.”

       (Tr. 594.) 17 However, the thrust of the State’s closing argument as to the

       Dealing in Methamphetamine charge was that Green had assembled all of the

       precursors and tools necessary to manufacture, and that the coffee filter and

       chemical odor were additional evidence of manufacturing. Furthermore, when

       discussing the Dealing in Methamphetamine charge in closing arguments, the

       State did not allude to the 0.61 gram of methamphetamine found on the

       bedroom plate in the same room as the drug paraphernalia. Yet this 0.61 grams

       of methamphetamine as well as a tied corner baggie associated with purchasing

       illegal drugs on the street, would support a conviction for Possession of

       Methamphetamine independent of the finished product found in the coffee

       filter.




       17
          The State’s argument in this section of its brief again focuses on the jury’s guilty verdict for Attempted
       Dealing in Methamphetamine, and does not address the Dealing in Methamphetamine charge on which the
       trial court ultimately entered judgment of conviction.

       Court of Appeals of Indiana | Memorandum Decision 82A01-141-CR-474 | September 23, 2015         Page 24 of 30
[46]   In light of the evidence and argument presented to the jury, we cannot say there

       is a reasonable possibility that the evidentiary facts used by the jury to establish

       the essential elements of Dealing in Methamphetamine were also used to

       establish all of the essential elements of Possession of Methamphetamine.

       Accordingly, we find no double jeopardy violation.


                                                 Sentencing
[47]   We turn now to Green’s argument that the trial court abused its discretion in

       imposing his sentence. Sentencing decisions rest within the sound discretion of

       the trial court and are reviewed only for an abuse of discretion. Anglemyer v.

       State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind.

       2007). An abuse of discretion occurs if the decision is clearly against the logic

       and effect of the facts and circumstances before the court, or the reasonable,

       probable, and actual deductions to be drawn therefrom. Id. (citation and

       quotation marks omitted). Trial courts must enter a sentencing statement

       whenever imposing a sentence for a felony offense, and the statement must

       include a reasonably detailed recitation of the court’s reasons for imposing a

       particular sentence. Id. “If the recitation includes a finding of aggravating or

       mitigating circumstances, then the statement must identify all significant

       mitigating and aggravating circumstances and explain why each circumstance

       has been determined to be mitigating or aggravating.” Id.


[48]   A trial court abuses its discretion if it (1) does not enter a sentencing statement,

       (2) enters a sentencing statement that explains reasons for imposing a sentence


       Court of Appeals of Indiana | Memorandum Decision 82A01-141-CR-474 | September 23, 2015   Page 25 of 30
       – including a finding of aggravating and mitigating factors if any – but the

       record does not support the reasons, (3) enters a statement that omits reasons

       that are clearly supported by the record and advanced for consideration, or (4)

       considers reasons that are improper as a matter of law. Jackson v. State, 973

       N.E.2d 1123, 1130 (Ind. Ct. App. 2012) (citing Anglemyer, 868 N.E.2d at 490–

       91), trans. denied. A trial court is not obligated to explain why it has not found a

       factor to be mitigating. Anglemyer, 868 N.E.2d at 493. “An allegation that the

       trial court failed to identify or find a mitigating factor requires the defendant to

       establish that the mitigating evidence is both significant and clearly supported

       by the record.” Id.


[49]   Green argues that the trial court’s sentencing statement generally was

       inadequate because the court did not identify specific mitigating or aggravating

       circumstances or “explain why each factor was mitigating or aggravating.”

       (Appellant’s Br. 33.) We disagree. Although no written sentencing statement is

       included in the record, the court’s oral statement at the sentencing hearing

       clearly identified two mitigating factors and the reasons they were mitigating:

       (1) Green “has a child that would be affected by the Court’s sentence[,]” and (2)

       “he admitted or plead[ed] guilty to the Habitual Enhancement in this case, and

       kept the jury, the attorneys and the Court from having to proceed on a second

       phase[.]” (Tr. 642.) The court then took into consideration Green’s criminal

       history, listing each of his past convictions. The court’s statement was thus a

       reasonably detailed recitation of the aggravating and mitigating factors and

       reasons for imposing the particular sentence.


       Court of Appeals of Indiana | Memorandum Decision 82A01-141-CR-474 | September 23, 2015   Page 26 of 30
[50]   Green also contends that the court failed to identify two mitigating factors

       advanced for consideration at the sentencing hearing. First, he points to the

       Vanderburgh County Probation Department’s pre-sentence investigation report,

       which states that the results of the Indiana Risk Assessment System –

       Community Supervision Tool (“IRAS-CST”) “indicate [Green] is a low risk to

       re-offend.” (App. 123.) Yet despite evaluating him at a low risk to reoffend, in

       the same report the Probation Department recommended Green be sentenced

       to prison terms significantly longer than those the trial court ultimately

       imposed. Green has failed to establish the significance of the IRAS-CST results

       as a mitigating factor.


[51]   Green also argues that the trial court should have considered as a mitigating

       factor his cooperation with the police when they entered and searched his

       apartment. Yet Green argued at the sentencing hearing only that “he

       cooperated somewhat with the Police” (Tr. 640), and otherwise downplayed

       the seriousness of his crimes. We see no abuse of discretion in the trial court’s

       failure to find Green’s moderate cooperation with the police a mitigating factor.


                               Independent Sentence Review
[52]   We turn now to Green’s contention that his sentence was inappropriate in light

       of the nature of his offense and his character. Article 7, Section 6 of the Indiana

       Constitution grants this Court authority to independently review and revise a

       sentence imposed by the trial court. To implement this grant of authority,

       Indiana Appellate Rule 7(B) provides: “The Court may revise a sentence


       Court of Appeals of Indiana | Memorandum Decision 82A01-141-CR-474 | September 23, 2015   Page 27 of 30
       authorized by statute if, after due consideration of the trial court’s decision, the

       Court finds that the sentence is inappropriate in light of the nature of the offense

       and the character of the offender.” Ind. Appellate Rule 7(B). The analysis is

       not whether another sentence is more appropriate, but whether the sentence

       imposed is inappropriate. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). The

       principal role of our review is to leaven the outliers, and our review is very

       deferential to the trial court. Id. The defendant bears the burden of persuading

       the appellate court that his or her sentence is inappropriate. Id.


[53]   Count 1, a Class A felony, carried a sentencing range of twenty to fifty years,

       with the advisory sentence being thirty years. I.C. § 35-50-2-4. Count 2, a

       Class B felony, carried a sentencing range of six to twenty years, with an

       advisory sentence of ten years. I.C. § 35-50-2-5. As a habitual substance

       offender, Green faced a sentencing enhancement of three to eight years. I.C. §

       35-50-2-10(f). Green was sentenced to thirty-five years in the DOC on Count 1,

       to be served concurrently to twelve years in the DOC on Count 2. (Tr. 643-44.)

       The court also enhanced Green’s sentence on Count 1 by three years due to his

       habitual substance offender status, yielding an aggregate sentence of thirty-eight

       years. (Tr. 643.)


[54]   Green argues that his sentence was inappropriate because his crime was not

       violent and he has no past history of violent crime. Instead, he contends that

       his prior criminal history reveals “an escalation in chemical dependency issues .

       . . better handled within a therapeutic environment . . . than [in] extended

       incarceration in DOC.” (Appellant’s Br. 36.) He further points to the

       Court of Appeals of Indiana | Memorandum Decision 82A01-141-CR-474 | September 23, 2015   Page 28 of 30
       “paucity” of evidence of his guilt (Appellant’s Br. 1), arguing that his

       connection to criminal activity in this case, if any, “is slight and tenuous.”

       (Appellant’s Br. 36.) He also argues that under Indiana Code section 35-50-2-

       2(b)(1), he “deserved up to 15 years and six years, respectively, suspended from

       his sentences, based upon the sparse evidence of guilt.” (Appellant’s Br. 37.)


[55]   We first observe that Indiana Code section 35-50-2-2(b), which provides that

       the trial court may suspend to probation any part of a felony sentence (subject to

       certain exceptions), is a permissive statute. The trial court was under no

       statutory obligation to suspend to probation any part of Green’s sentence.


[56]   Second, as discussed above, there was sufficient evidence to support Green’s

       conviction for Dealing in Methamphetamine. Even if we agreed with his

       contention that he was convicted on “sparse” evidence, the volume of evidence

       presented has no bearing on our independent appellate review of Green’s

       sentence. Rather, our review looks exclusively to the nature of the offense and

       the character of the offender. See App. R. 7(B).


[57]   As to the nature of his offenses, Green collected and constructed all of the

       precursors and tools necessary to manufacture methamphetamine and

       possessed finished methamphetamine product. There is nothing extraordinary

       about the nature of Green’s offenses. As to Green’s character, the record shows

       that Green has a prior criminal history, including felony convictions for

       Possession of a Controlled Substance and Operating a Vehicle While

       Intoxicated (“OWI”). He also has misdemeanor convictions for OWI (two


       Court of Appeals of Indiana | Memorandum Decision 82A01-141-CR-474 | September 23, 2015   Page 29 of 30
       counts), Possession of Marijuana, and Driving While Suspended with a Prior

       Suspension. Green was on probation at the time of the instant offenses. In

       light of Green’s criminal history involving several drug-related crimes, the trial

       court’s imposition of a sentence only slightly above the advisory range for each

       count, to be served concurrently, was not inappropriate.



                                               Conclusion
[58]   Because the officer’s warrantless entry into Green’s home did not violate his

       federal or state constitutional rights, the trial court did not abuse its discretion in

       admitting evidence obtained after police obtained a warrant based on items in

       plain view during the warrantless search. There was sufficient evidence to

       support Green’s conviction for Dealing in Methamphetamine. Green’s

       convictions for Dealing in Methamphetamine and Possession of

       Methamphetamine did not violate double jeopardy principles under the actual

       evidence test. The trial court did not abuse its discretion in sentencing Green,

       and Green’s sentence was not inappropriate.


[59]   Affirmed.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-141-CR-474 | September 23, 2015   Page 30 of 30
