MEMORANDUM DECISION                                                   FILED
Pursuant to Ind. Appellate Rule 65(D),                           Sep 22 2016, 5:27 am

this Memorandum Decision shall not be                                 CLERK
                                                                  Indiana Supreme Court
regarded as precedent or cited before any                            Court of Appeals
                                                                       and Tax Court
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
Matthew J. McGovern                                      Gregory F. Zoeller
Anderson, Indiana                                        Attorney General of Indiana
                                                         Henry A. Flores, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Morgan Christopher Foster,                               September 22, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         82A05-1511-CR-2010
        v.                                               Appeal from the Vanderburgh
                                                         Superior Court
State of Indiana,                                        The Honorable Robert J. Pigman,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         82D03-1504-F3-2026



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A05-1511-CR-2010 | September 22, 2016   Page 1 of 26
                               Case Summary and Issues
[1]   Following a jury trial, Morgan Foster was convicted of conspiracy to commit

      dealing in methamphetamine as a Level 2 felony and was sentenced to twenty-

      two and one-half years in the Indiana Department of Correction. Foster

      appeals his conviction and sentence, raising five issues for our review, which we

      restate as (1) whether the trial court abused its discretion in admitting evidence,

      (2) whether the evidence is sufficient to support his conviction, (3) whether his

      conviction violates the prohibition against double jeopardy, (4) whether his

      sentence violates Indiana’s Proportionality Clause, and (5) whether his sentence

      is inappropriate in light of the nature of the offense and his character.

      Concluding the trial court did not abuse its discretion in admitting evidence, the

      evidence is sufficient to support Foster’s conviction, his conviction does not

      violate the prohibition against double jeopardy, and his sentence is neither

      unconstitutional nor inappropriate, we affirm.



                            Facts and Procedural History
[2]   In early April 2015, Foster was attempting to locate pseudoephedrine pills to

      manufacture methamphetamine. A confidential informant and Foster agreed to

      an exchange. The confidential informant notified Detective Todd Seibert of the

      Evansville Police Department of the agreement with Foster. Detective Seibert

      then set up a controlled buy between the informant and Foster.




      Court of Appeals of Indiana | Memorandum Decision 82A05-1511-CR-2010 | September 22, 2016   Page 2 of 26
[3]   On April 7, 2015, Detective Seibert provided the informant with 100, 120

      milligram pseudoephedrine pills. Around 4:00 p.m., the informant arrived at

      Foster’s home. The informant told Foster she wanted three grams of

      methamphetamine in exchange for the pills. Foster did not have any

      methamphetamine at the time, but stated he would “be started by 7:00 [and] be

      done no later than 11:00.” Transcript at 377. Foster provided the informant

      with his personal property as collateral and explained he would call the

      informant “[n]o later than 11:00.” Id. at 380. During the conversation,

      Demareo Thurston called Foster and Foster demanded Thurston come to the

      home, claiming he was “ready to go.”1 Id. at 377. The informant gave Foster

      all 100 pills and left. Detectives Seibert, Patrick McDonald, and Brock Hensley

      then conducted surveillance on the home.


[4]   Later that evening, Thurston arrived at Foster’s home with camping fuel.

      Foster then requested Thurston purchase sodium hydroxide (lye) and a one-

      gallon plastic bottle. Thurston obliged, and returned with sodium hydroxide, a

      one-gallon plastic container, and coffee filters. In exchange for his time,

      Thurston was hoping to receive at least one gram of methamphetamine.


[5]   At some point, Detective Seibert walked around the home and noticed a strong

      chemical odor emanating from the back of the home. Through his training and

      experience, Detective Seibert believed the odor was indicative of the



      1
        Thurston testified Foster called him a day before the controlled buy and requested Thurston obtain camping
      fuel, a common precursor used in the manufacturing of methamphetamine.

      Court of Appeals of Indiana | Memorandum Decision 82A05-1511-CR-2010 | September 22, 2016       Page 3 of 26
      manufacturing of methamphetamine. Unbeknownst to Detective Seibert, other

      police officers received a report of a chemical odor emanating from the home

      around the same time. When those police officers arrived, Detective Hensley

      called the officers and requested they attempt to contact Foster and Thurston.

      The police officers also noticed a strong chemical odor coming from the home.

      After no one answered the door, the police officers left. Shortly thereafter,

      Thurston and Foster also left. Police officers were able to locate the pair and

      Detective Seibert spoke with Foster. Detective Seibert detected a strong

      chemical odor generally associated with the manufacturing of

      methamphetamine coming from Foster.


[6]   Detective Seibert then signed an affidavit for a search warrant of Foster’s home,

      which stated in part, “[O]fficers responded to [Foster’s] residence due to an

      anonymous complaint that a strong chemical odor was coming from the

      residence.” Defendant’s Exhibit A. Despite attesting that he “speaks from

      personal knowledge and observation,” id., Detective Seibert did not have

      personal knowledge that police officers had responded due to an anonymous

      complaint. The trial court authorized the search. During the search, police

      officers observed an active “one pot” manufacturing lab, the contents of which

      were still undergoing a chemical reaction. Tr. at 207. In addition, they

      observed the following items typically used in the manufacture, use, and

      dealing of methamphetamine: coffee filters, lye, a coffee bean grinder, digital

      scales, corner cut baggies, a used cold pack, a straw used to inhale or smoke

      narcotics, and camping fuel. No pseudoephedrine pills were discovered during


      Court of Appeals of Indiana | Memorandum Decision 82A05-1511-CR-2010 | September 22, 2016   Page 4 of 26
      the search of the home. On April 25, 2015, the State charged Foster with

      dealing in methamphetamine as a Level 2 felony (“Count I”), conspiracy to

      commit dealing in methamphetamine as a Level 2 felony (“Count II”), and

      attempted dealing in methamphetamine as a Level 3 felony (“Count III”).


[7]   In September 2015, Foster filed a motion for a Franks hearing and/or a motion

      to suppress, alleging Detective Seibert recklessly included a false statement in

      his application for the search warrant, the false statement was necessary to the

      finding of probable cause, and therefore all evidence seized during the search

      was fruit of the poisonous tree. At a hearing on the matter, Detective Seibert

      admitted he did not have personal knowledge that police officers had received

      an anonymous tip regarding an odor coming from the house, claiming the

      statement was innocently included due to a “a typo from a cut and paste from

      when the warrant was typed.” Id. at 84. He further claimed he only signed the

      affidavit, explaining an individual in the prosecutor’s office typed the affidavit

      pursuant to Detective Hensley’s account of the facts. The trial court ultimately

      struck the false statement from the affidavit and concluded the remaining

      information established probable cause for the issuance of the warrant and

      therefore the evidence seized pursuant to the warrant was lawful.


[8]   At trial, the State admitted evidence seized during the search of Foster’s

      residence. Foster objected, alleging the admission of evidence violated the

      Fourth Amendment. The trial court overruled his objection, and the jury

      returned guilty verdicts on all three counts. At sentencing, the trial court

      entered judgment of conviction only on Count II, conspiracy to commit dealing

      Court of Appeals of Indiana | Memorandum Decision 82A05-1511-CR-2010 | September 22, 2016   Page 5 of 26
      in methamphetamine, due to double jeopardy concerns and sentenced Foster to

      twenty-two and one-half years in the Department of Correction. This appeal

      ensued.



                                 Discussion and Decision
                                  I. Admission of Evidence
                                      A. Standard of Review
[9]   At the outset, we note Foster did not seek interlocutory review of the trial

      court’s denial of his pretrial motion to suppress/Franks motion and we therefore

      consider his appeal as a request for this court to review the trial court’s decision

      to admit evidence at trial. See Carpenter v. State, 18 N.E.3d 998, 1001 (Ind.

      2014). We review a trial court’s admission of evidence for an abuse of

      discretion. McVey v. State, 863 N.E.2d 434, 440 (Ind. Ct. App. 2007), trans.

      denied. “An abuse of discretion occurs if a trial court’s decision is clearly

      against the logic and effect of the facts and circumstances before the

      court.” Id. We neither weigh the evidence nor resolve questions of credibility,

      “but consider the evidence which supports the decision of the trier of fact in the

      case of contested evidence and any uncontested evidence presented by the

      appellant.” Davies v. State, 730 N.E.2d 726, 732 (Ind. Ct. App. 2000), trans.

      denied, cert. denied, 532 U.S. 945 (2001).




      Court of Appeals of Indiana | Memorandum Decision 82A05-1511-CR-2010 | September 22, 2016   Page 6 of 26
                                          B. Search Warrant
[10]   Foster argues the affidavit supporting the issuance of the search warrant

       contained a false statement that misled the issuing court and therefore the

       search was unconstitutional under the Fourth Amendment. The Fourth

       Amendment requires a hearing be held in the event a defendant “makes a

       substantial preliminary showing that a false statement knowingly and

       intentionally, or with reckless disregard for the truth, was included by the

       affiant in the warrant affidavit, and [was] necessary to the finding of probable

       cause . . . .” Franks v. Delaware, 438 U.S. 154,155-56 (1978). Stated differently,

       only when the defendant satisfies this burden and the remaining information in

       the affidavit is insufficient to establish probable cause is the search warrant

       deemed void. Id. at 156.


[11]           In deciding whether to issue a search warrant, “[t]he task of the
               issuing magistrate is simply to make a practical, commonsense
               decision whether, given all the circumstances set forth in the
               affidavit . . . there is a fair probability that contraband or
               evidence of a crime will be found in a particular place.” The
               duty of the reviewing court is to determine whether the
               magistrate had a “substantial basis” for concluding that probable
               cause existed. It is clear that a substantial basis requires the
               reviewing court, with significant deference to the magistrate’s
               determination, to focus on whether reasonable inferences drawn
               from the totality of the evidence support the determination of
               probable cause. A “reviewing court” for these purposes includes
               both the trial court ruling on a motion to suppress and an
               appellate court reviewing that decision. In this review, we
               consider only the evidence presented to the issuing magistrate
               and not post hoc justifications for the search.


       Court of Appeals of Indiana | Memorandum Decision 82A05-1511-CR-2010 | September 22, 2016   Page 7 of 26
       Query v. State, 745 N.E.2d 769, 771 (Ind. 2001) (alterations in original) (citations

       omitted). Here, in signing the affidavit, Detective Seibert swore that police

       officers responded to Foster’s residence due to an anonymous complaint that a

       strong chemical odor was coming from the residence. This fact is supported by

       the record. However, Detective Seibert had no knowledge of this fact before

       signing the affidavit. Upon Foster’s motion, the trial court struck that portion

       of the affidavit and concluded the remaining information was sufficient to

       support a probable cause determination. On appeal, Foster acknowledges the

       remaining information included in the affidavit is sufficient to determine

       probable cause exists,2 see Brief of Appellant at 27-28, but cites Esquerdo v. State,

       640 N.E.2d 1023 (Ind. 1994), and argues even if there was sufficient probable

       cause, the affidavit’s false statement tainted the probable cause determination

       thereby invalidating the search warrant.


[12]   In Esquerdo, a confidential informant advised police officers Esquerdo was

       selling drugs from his home. Following a controlled buy, the confidential

       informant notified police officers that she believed Esquerdo was destroying




       2
         We agree. The remaining information in the affidavit provides the following narrative: police officers
       observed a strong chemical odor typically associated with the manufacturing of methamphetamine
       emanating from the home; police officers attempted to contact Thurston and Foster inside the
       residence, but neither answered the door; soon thereafter, Thurston and Foster exited the home in a
       fashion that indicated the pair were attempting to elude police officers; and the police officers
       ultimately made contact with Foster and observed a strong chemical odor associated with the
       manufacturing of methamphetamine. Such a narrative is sufficient to support a probable cause
       determination. See, e.g., State v. Hawkins, 766 N.E.2d 749, 752 (Ind. Ct. App. 2002) (“[W]hen a trained
       and experienced police officer detects the strong and distinctive odor of burnt marijuana coming from a
       vehicle, the officer has probable cause to search the vehicle.”), trans. denied.



       Court of Appeals of Indiana | Memorandum Decision 82A05-1511-CR-2010 | September 22, 2016         Page 8 of 26
       evidence. Without a warrant, police officers forcibly entered Esquerdo’s

       residence and observed cocaine and marijuana in plain view. Thereafter, the

       police officers submitted an affidavit for a search warrant, which included

       information regarding the controlled buy and the narcotics found in plain view.

       Upon the issuance of the search warrant, police officers conducted a more

       detailed search of Esquerdo’s residence, finding more evidence of drug use.

       Prior to trial, Esquerdo moved to suppress the evidence found during the

       warrantless entry, as well as the evidence seized pursuant to the search warrant,

       which the trial court denied. This court affirmed.


[13]   On transfer, our supreme court considered Esquerdo’s argument the evidence

       seized during the warrantless entry was fruit of the poisonous tree for lack of

       exigent circumstances, and therefore the evidence seized pursuant to the search

       warrant was also fruit of the poisonous tree because the information contained

       in the affidavit for the search warrant was the product of the warrantless entry.

       The court agreed no exigent circumstances existed to justify the warrantless

       entry into Esquerdo’s home, id. at 1028, and then considered whether illegally

       obtained evidence that is presented as evidence of probable cause can taint an

       otherwise sufficient probable cause determination thereby invalidating a search

       warrant.


[14]   In its analysis, the court acknowledged the affidavit included evidence of the

       controlled buy, which on its own, made it reasonable for the issuing court to

       conclude sufficient probable cause existed to issue a search warrant. Id. at

       1029. However, the court concluded the evidence illegally seized during the

       Court of Appeals of Indiana | Memorandum Decision 82A05-1511-CR-2010 | September 22, 2016   Page 9 of 26
       warrantless search and used to obtain a search warrant tainted the probable

       cause determination and rendered the search invalid because allowing the

       police to attain a search warrant in such a way would “would give the police

       incentive to enter [] a residence, without a judicially-issued warrant, and search

       for evidence to bolster any evidence supporting probable cause that the police

       already possess.” Id. at 1030.


[15]   Foster argues the present case is analogous to Esquerdo, contending Detective

       Seibert’s false statement tainted an otherwise proper probable cause

       determination. However, unlike Esquerdo, the affidavit here included no

       illegally obtained evidence but merely a false statement regarding whether

       Detective Seibert had personal knowledge of the anonymous complaint, a fact

       we do not consider relevant considering the probable cause affidavit included

       sufficient information regarding numerous police officers who observed a strong

       chemical odor emanating from Foster’s residence. See supra note 2. We

       therefore find the limited holding in Esquerdo inapplicable to the present case

       and conclude the trial court did not err in admitting evidence found pursuant to

       the search warrant.


       II. Conspiracy to Commit Dealing in Methamphetamine
                                         A. Standard of Review
[16]   Foster contends the evidence is insufficient to support his conviction for

       conspiracy to commit dealing in methamphetamine as a Level 2 felony. When

       reviewing the sufficiency of the evidence to support a conviction, we consider

       Court of Appeals of Indiana | Memorandum Decision 82A05-1511-CR-2010 | September 22, 2016 Page 10 of 26
       only the probative evidence and reasonable inferences supporting the

       judgment. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We neither reweigh

       the evidence nor reassess the credibility of witnesses. Id. We will affirm a

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

       crime proven beyond a reasonable doubt.” Id. at 146-47 (citation omitted).


                                   B. Sufficiency of the Evidence
[17]   Foster argues the State presented insufficient evidence to support his conviction,

       arguing the evidence does not establish his unfinished methamphetamine

       mixture would have yielded between five and ten grams of methamphetamine.

       The State charged Foster with conspiracy to commit dealing in

       methamphetamine as a Level 2 felony. Indiana Code section 35-41-5-2 states,

               (a) A person conspires to commit a felony when, with intent to
               commit the felony, the person agrees with another person to
               commit the felony. . . .


               (b) The state must allege and prove that either the person or the
               person with whom he or she agreed performed an overt act in
               furtherance of the agreement.


       Generally, a person who knowingly or intentionally manufactures, finances the

       manufacture, delivers, or finances the delivery of pure or adulterated

       methamphetamine commits dealing in methamphetamine as a Level 5 felony.

       Ind. Code § 35-48-4-1.1(a). However, the crime is enhanced to a Level 2 felony

       if the State proves “the amount of the drug involved is at least five (5) grams but

       less than ten (10) grams and an enhancing circumstance applies.” Ind. Code §

       Court of Appeals of Indiana | Memorandum Decision 82A05-1511-CR-2010 | September 22, 2016 Page 11 of 26
       35-48-4-1.1(e). As an enhancing circumstance, the State alleged Foster

       manufactured or financed the manufacture of methamphetamine pursuant to

       Indiana Code section 35-48-1-16.5 (defining an “enhancing circumstance”).

       Therefore, in order to sustain a conviction for conspiracy to commit dealing as

       a Level 2 felony, the State was required to prove Foster (1) intended to commit

       dealing in methamphetamine, (2) agreed with Thurston to commit the felony,

       (3) either Thurston or Foster performed an overt act in furtherance of the

       agreement, (4) the amount of drug involved was between five and ten grams,

       and (5) Foster manufactured or financed the manufacture of the drug. Foster

       only argues the evidence is insufficient to support the fourth element.


[18]   At the outset, it is necessary to note when police officers searched Foster’s

       residence the manufacturing process was not yet complete, leaving only an

       intermediate mixture of methamphetamine. See Buelna v. State, 20 N.E.3d 137,

       141-42 (Ind. 2014) (describing the final extracted methamphetamine as

       “adulterated” methamphetamine and methamphetamine that has not

       undergone the entire manufacturing process as an “intermediate mixture”).

       “An intermediate chemical mixture is not a controlled substance or drug under

       the Indiana criminal code” and is considered “neither ‘adulterated’ nor ‘pure’

       methamphetamine.” Id. at 146. Therefore, in instances where, as here, the

       State relies on an intermediate mixture to satisfy an enhancement, it may not

       simply rely on the weight of the intermediate mixture; rather “it must

       demonstrate how much final product a defendant’s particular manufacturing

       process would have yielded had it not been interrupted by police . . . .” Id.


       Court of Appeals of Indiana | Memorandum Decision 82A05-1511-CR-2010 | September 22, 2016 Page 12 of 26
[19]   There are several ways the State can demonstrate the weight of a final yield. Id.

       Sufficient evidence of final yield may come from a skilled or expert witness. Id.

       For example, the State may introduce evidence of the amount of finished

       product as weighed by a forensic scientist, elicit direct testimony of the actual

       weight of the final yield from those who “regularly use or deal in the substance”

       or “developed an acute ability to assess the weight” of the drugs in which they

       deal, or may offer testimony from police officers or detectives who regularly

       investigate methamphetamine crimes to establish the weight of the final

       product. Id. at 147-48.


               Skilled witness testimony is permissible as long as the method the
               witness uses for showing final yield is accurately tailored to the
               specific manufacturing conditions, ingredients, and skill of the
               accused. And the testimony cannot leave reasonable doubt that
               the defendant’s final yield would fail to surpass the [weight] . . .
               threshold.


       Id. at 146.


[20]   Here, the State relied largely on the testimony of Detective Hensley to indicate

       Foster’s final yield would have been between five and ten grams.3 Detective

       Hensley has been employed by the Evansville Police Department for sixteen

       years and has served as a detective for the Evansville Police Department-

       Vanderburgh County Joint Task Force for the past four years, specifically




       3
        At trial, Foster conceded Detective Hensley is a skilled witness pursuant to Indiana Evidence Rule 701. See
       Tr. at 156.

       Court of Appeals of Indiana | Memorandum Decision 82A05-1511-CR-2010 | September 22, 2016 Page 13 of 26
       working in the Methamphetamine Suppression Unit. In total, he has

       investigated over 800 methamphetamine labs. He has also attended multiple

       classes that require police officers to engage in discussion and training about the

       manufacturing of methamphetamine. Detective Hensley learned the different

       methods of manufacturing, how to successfully dismantle a methamphetamine

       lab, and how to cook methamphetamine. In addition, the classes required

       Detective Hensley to undergo training in regard to the different yield ratios for

       the different manufacturing methods. He successfully completed his schooling,

       receiving certifications from the Drug Enforcement Agency as a Clandestine

       Lab Investigator and Site Safety Supervisor. Over his career, Detective Hensley

       has cooked methamphetamine approximately ten times in controlled settings,

       largely utilizing the one-pot method.


[21]   Detective Hensley testified there are generally four methods to manufacture

       methamphetamine, including the one-pot method, which does not require

       much skill and provides the highest yield. In determining the yield ratio for the

       one-pot method, Detective Hensley opined,

               [T]he main consideration is the amount of pills that you are
               putting in. Because of the actual reduction process the amount of
               pills you’re putting in will give you the weight of your
               pseudoephedrine based-cold medication, which in time will give
               you the yield ratio or the percentage of the finished product.


       Tr. at 157. Another vital consideration is the barometric pressure in the

       atmosphere surrounding the lab. Id. at 159. A successful one-pot



       Court of Appeals of Indiana | Memorandum Decision 82A05-1511-CR-2010 | September 22, 2016 Page 14 of 26
       manufacturing lab will yield no less than 50% and no more than 92%, with the

       most common yield being 80%. Id. at 158-60.


[22]   Here, Detective Hensley provided the confidential informant with 100, 120

       milligram pseudoephedrine pills, totaling twelve grams. All 100 hundred pills

       were then given to Foster in exchange for three grams of the methamphetamine

       Foster would soon attempt to cook. Foster immediately requested Thurston

       come to his house because he was “ready to go.” Id. at 377. Thurston brought

       over camping fuel, and at Foster’s additional request, retrieved sodium

       hydroxide (lye), coffee filters, and a one-gallon plastic container. Thurston was

       under the impression he would receive one gram of the methamphetamine

       Foster would soon attempt to cook. During the search of Foster’s residence,

       Detective Hensley observed multiple precursors and a one-pot lab, the contents

       of which were still undergoing a chemical reaction. Specifically, he noted

       Foster utilized a one-gallon plastic container instead of the commonly used

       two-liter plastic container, which he claimed through his training was indicative

       of Foster’s intent to manufacture more methamphetamine.


[23]   Detective Hensley described the manufacturing conditions as “a pretty

       controlled environment, obviously it is inside a basement that is inside a

       residence, so you really [do not] have to worry about the weather or pressure or

       anything like that, so it is a pretty controlled environment.” Id. at 182.

       Ultimately, Detective Hensley opined that, but-for police intervention, Foster’s

       one-pot lab would have yielded between 50% and 92%. Given his testimony

       noted above, namely the facts that the confidential informant provided 100, 120

       Court of Appeals of Indiana | Memorandum Decision 82A05-1511-CR-2010 | September 22, 2016 Page 15 of 26
       milligram pseudoephedrine pills totaling twelve grams, no pills were found in

       Foster’s residence or on his person, and Foster’s reaction vessel was larger than

       most, Detective Hensley concluded Foster’s one-pot lab would have yielded

       between six and ten point eight (10.8) grams of methamphetamine.


[24]   Foster argues there is no evidence he used 100 pills and therefore Detective

       Hensley’s opinion in regards to Foster’s final yield amounted to mere

       speculation and conjecture. We disagree.4 Foster was in need of

       pseudoephedrine and the confidential informant provided him with 100, 120

       milligrams pseudoephedrine pills. As soon as he received the pills, he called

       Thurston, stating he was “ready to go.” Id. at 377. Foster used a one-gallon

       plastic container as his reaction vessel, which is larger than the two-liter plastic

       container Detective Hensley typically encounters. In addition, law enforcement

       did not find any pseudoephedrine pills in Foster’s residence or on his person.

       The facts here give rise to an inference that Foster intended to use and did use

       at least 100, 120 milligram pills totaling twelve grams of pseudoephedrine.

       Given this inference, coupled with Foster’s manufacturing process, the




       4
         Stated differently, Foster would have us require, as a matter of law, there be direct evidence of the amount
       of pseudoephedrine pills placed into a reaction vessel in situations where the manufacturing process is
       interrupted in order to convict defendants under Indiana Code section 35-48-4-1.1(c)-(e) (felony
       enhancements). We believe such a requirement would render the enhancement useless because in situations
       where the manufacturing process is interrupted and there is no tangible final yield, it would be impossible to
       determine the amount of pseudoephedrine used without a defendant’s confession or some other form of
       evidence explicitly indicating the defendant utilized a certain amount of pills, such as a co-conspirator
       witnessing exactly 100 ground up pills being placed in the vessel. In addition, if we were to require such
       specific evidence, it would give law enforcement an incentive to allow individuals to continue and finish the
       manufacturing process; given the dangers inherent in manufacturing methamphetamine, such a circumstance
       would undoubtedly increase risk of injury to those in the vicinity of a methamphetamine lab.

       Court of Appeals of Indiana | Memorandum Decision 82A05-1511-CR-2010 | September 22, 2016 Page 16 of 26
       manufacturing conditions, evidence of the precursors, and the lack of skill

       necessary to manufacture methamphetamine via the one-pot method, Detective

       Hensley opined Foster would have produced at the very least six grams of

       methamphetamine. Based on the foregoing, a reasonable jury could conclude

       Foster’s manufacturing lab would have yielded between five and ten grams of

       methamphetamine if it had not been interrupted by police. Therefore, the

       evidence is sufficient to support Foster’s conviction for conspiracy to commit

       dealing in methamphetamine as a Level 2 felony.


                                         III. Double Jeopardy
[25]   Foster argues his conviction as a Level 2 felony implicates double jeopardy

       because “the enhancement charge[] [is] simply a restatement of the underlying

       charge[].”5 Br. of Appellant at 39. Although somewhat difficult to

       comprehend, it appears he contends the fact he manufactured

       methamphetamine was not only used to prove he conspired to commit dealing

       in methamphetamine as an underlying offense but was also the fact utilized by

       the State to subject him to the higher sentencing range imposed for dealing in

       methamphetamine as a Level 2 felony. We disagree.




       5
        The State argues Foster has waived this claim in not objecting at trial. We note a double jeopardy
       violation, if shown, can constitute fundamental error and must be reviewed on a case by case basis. See
       Taylor v. State, 717 N.E.2d 90, 95 n.7 (Ind. 1999) (“We decline to apply prior summary declarations that
       violations of double jeopardy rights constitute fundamental error. The issue of fundamental error is better
       determined on a case by case basis.”).

       Court of Appeals of Indiana | Memorandum Decision 82A05-1511-CR-2010 | September 22, 2016 Page 17 of 26
[26]   The Fifth Amendment to the United States Constitution provides “[n]o person

       shall be . . . subject for the same offense to be twice put in jeopardy of life or

       limb . . . .” Under the Fifth Amendment, a defendant’s conviction upon

       multiple offenses will not be precluded by double jeopardy principles if each

       statutory offense requires proof of a fact the other does not. Blockburger v. United

       States, 284 U.S. 299, 302 (1932).


[27]   Similarly, Article 1, Section 14 of the Indiana Constitution states “[n]o person

       shall be put in jeopardy twice for the same offense.” Two offenses are the

       “same offense” in violation of Article 1, Section 14, 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. Richardson v. State, 717

       N.E.2d 32, 49-50 (Ind. 1999). Both Constitutions prohibit multiple

       punishments for the same offense. Davis v. State, 770 N.E.2d 319, 323 (Ind.

       2002). Therefore, the constitutional double jeopardy provisions govern claims

       regarding the elements of multiple crimes. Nicoson v. State, 938 N.E.2d 660, 663

       (Ind. 2010).


[28]   At the outset, we note Foster was convicted of only one offense: conspiracy to

       commit dealing in methamphetamine as a Level 2 felony. Because the

       aforementioned tests all require the comparison of the elements of multiple

       convictions, neither the Blockburger test, the Richardson actual evidence test, nor

       the Richardson statutory elements test is violated. See id. However, “[i]n

       addition to the instances covered by Richardson, ‘we have long adhered to a

       Court of Appeals of Indiana | Memorandum Decision 82A05-1511-CR-2010 | September 22, 2016 Page 18 of 26
       series of rules of statutory construction and common law that are often

       described as double jeopardy, but are not governed by the constitutional test set

       forth in Richardson.’” Guyton v. State, 771 N.E.2d 1141, 1143 (Ind.

       2002) (quoting Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002)). “These rules

       are sometimes referred to as Justice Sullivan’s categories because he first

       enumerated them in his concurring opinion in Richardson.” Zieman v. State, 990

       N.E.2d 53, 61 (Ind. Ct. App. 2013).


[29]   One such category prohibits “[c]onviction and punishment for an enhancement

       of a crime where the enhancement is imposed for the very same behavior or

       harm as another crime for which the defendant has been convicted and

       punished.” Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring). In

       discussing this category, Justice Sullivan explained, “In situations where a

       defendant has been convicted of one crime for engaging in the specified

       additional behavior or causing the specified additional harm, that behavior or

       harm cannot also be used as an enhancement of a separate crime; either the

       enhancement or the separate crime is vacated.” Id. Foster cites this category,

       arguing the fact he manufactured methamphetamine, which contributed to the

       enhancement of his offense to a Level 2 felony, is the very same behavior

       supporting the underlying offense that he conspired to commit dealing in

       manufacturing as a Level 5 felony.


[30]   We do not see how this category is applicable to the present case. As Justice

       Sullivan made clear in Richardson, this category is applicable in situations where

       the behavior supporting a conviction for one crime is the same behavior used to

       Court of Appeals of Indiana | Memorandum Decision 82A05-1511-CR-2010 | September 22, 2016 Page 19 of 26
enhance a conviction for a separate crime. See id. Foster was only convicted of

conspiracy to commit dealing in methamphetamine as a Level 2 felony, which

required the State to prove Foster (1) intended to commit dealing in

methamphetamine, (2) agreed with Thurston to commit the felony, (3) either

Thurston or Foster performed an overt act in furtherance of the agreement, (4)

the amount of drug involved was between five and ten grams, and (5) Foster

manufactured or financed the manufacture of the drug. Ind. Code §§ 35-48-4-

1.1(a)(1), (e)(2); Ind. Code § 35-41-5-2; Ind. Code § 35-48-1-16.5(5). Therefore,

there is no separate conviction or enhancement for us to address. 6




6
  Foster relies heavily on the dealing statute in support of the notion his conviction as a Level 2 felony is
improper. Dealing in methamphetamine as a Level 5 felony requires proof the defendant knowingly or
intentionally manufactured, financed the manufacture of, delivered, or financed the delivery of pure or
adulterated methamphetamine. Ind. Code § 35-48-4-1.1(a). The crime is enhanced to a Level 2 felony if the
State proves the amount of drug involved is between five and ten grams and an enhancing circumstance
applies. Ind. Code § 35-48-4-1.1(e)(2). One such enhancing circumstance is the defendant’s manufacture or
financing of the manufacture of methamphetamine. Ind. Code § 35-48-1-16.5(5). Therefore, hypothetically
speaking, in situations where a defendant is charged with dealing in methamphetamine as a Level 5 felony
based on evidence he did knowingly or intentionally manufacture or finance the manufacturing of
methamphetamine, a concern may arise if that conviction is enhanced to a Level 2 felony based on the same
fact the defendant manufactured or financed the manufacture of methamphetamine. However, this situation
is not applicable here. Foster was charged with conspiracy to commit dealing in methamphetamine.
Conspiracy to commit dealing in methamphetamine as a Level 5 felony does not require the State to prove
the defendant knowingly or intentionally manufactured or financed the manufacture of methamphetamine.
Rather, it requires the State to only prove a defendant intended to commit dealing in methamphetamine,
agreed with another to commit dealing in methamphetamine, and one party to the agreement took an overt
step in furtherance of the agreement. Certainly, the fact Foster actually manufactured methamphetamine
could be used as evidence to show he conspired to deal in methamphetamine. Other facts supporting his
conviction, however, include his act of attaining pseudoephedrine pills, his promise to provide
methamphetamine to the confidential informant and Thurston in exchange for precursors, Thurston’s acts of
purchasing and providing precursors, and Foster’s possession of scales and corner cut baggies.

Court of Appeals of Indiana | Memorandum Decision 82A05-1511-CR-2010 | September 22, 2016 Page 20 of 26
[31]   We conclude his conviction of conspiracy to commit dealing in

       methamphetamine as a Level 2 felony does not violate any prohibition against

       double jeopardy.


                              IV. Disproportionate Sentence
[32]   Foster claims his sentence cannot stand because it violates the Proportionality

       Clause of the Indiana Constitution. Specifically, and similar to his double

       jeopardy argument, he argues the same conduct of manufacturing or financing

       the manufacture of five to ten grams of methamphetamine can be either a Level

       3 felony, Ind. Code § 35-48-4-1.1(d)(1), or a Level 2 felony, Ind. Code §§ 35-48-

       4-1.1(e)(2) and 35-48-1-16.5(5). Because defendants committing identical

       offenses can be given different sentences depending upon which statute they are

       charged under, Foster claims the statute is unconstitutional. Compare Ind. Code

       § 35-50-2-4.5 (a Level 2 felony carries a sentence between ten and thirty years)

       with Ind. Code § 35-50-2-5(b) (a Level 3 felony carries a sentence between three

       and sixteen years).


[33]   At the outset, we note Foster did not challenge the constitutionality of the

       penalty for the offense at the trial court level. Therefore, the issue is waived.

       See Adams v. State, 804 N.E.2d 1169, 1172 (Ind. Ct. App. 2004) (holding the

       failure to challenge the constitutionality of a criminal statute by a motion to

       dismiss prior to trial waives the issue on appeal). Waiver notwithstanding, our

       standard of review is well settled:




       Court of Appeals of Indiana | Memorandum Decision 82A05-1511-CR-2010 | September 22, 2016 Page 21 of 26
               Every statute stands before us clothed with the presumption of
               constitutionality until clearly overcome by a contrary showing.
               The party challenging the constitutionality of the statute bears the
               burden of proof, and we resolve all doubts against that party. If
               there are two reasonable interpretations of a statute, one of which
               is constitutional and the other not, we will choose that path
               which permits upholding the statute because we will not presume
               that the legislature violated the constitution unless such is
               required by the unambiguous language of the statute.


       Poling v. State, 853 N.E.2d 1270, 1275 (Ind. Ct. App. 2006) (citation omitted).


[34]   Pursuant to Article 1, Section 16, of the Indiana Constitution, “All penalties

       shall be proportioned to the nature of the offense.” Generally, a sentence

       violates the Proportionality Clause only when it is so severe and entirely out of

       proportion to the gravity of the offense committed that it “shock[s] public

       sentiment and violate[s] the judgment of a reasonable people.” Pritscher v. State,

       675 N.E.2d 727, 731 (Ind. Ct. App. 1996) (citation omitted). However, our

       supreme court has also held a sentence violates the proportionality clause where

       identical offenses are given different sentences. Poling, 853 N.E.2d at 1276-77.


[35]   Indiana Code section 35-48-4-1.1 provides,

               (a) A person who:
                      (1) knowingly or intentionally:
                             (A) manufactures;
                             (B) finances the manufacture of;
                             (C) delivers; or
                             (D) finances the delivery of;


               methamphetamine, pure or adulterated;

       Court of Appeals of Indiana | Memorandum Decision 82A05-1511-CR-2010 | September 22, 2016 Page 22 of 26
        ***


        commits dealing in methamphetamine, a Level 5 felony, except
        as provided in subsections (b) through (e).


        ***


         (d) The offense is a Level 3 felony if:
               (1) the amount of the drug involved is at least five (5)
               grams but less than ten (10) grams; or
               (2) the amount of the drug involved is at least one (1) gram
               but less than five (5) grams and an enhancing circumstance
               applies.


        (e) The offense is a Level 2 felony if:
              (1) the amount of the drug involved is at least ten (10)
              grams;
              (2) the amount of the drug involved is at least five (5)
              grams but less than ten (10) grams and an enhancing
              circumstance applies; or
              (3) the person is manufacturing the drug and the
              manufacture results in an explosion causing serious bodily
              injury to a person other than the manufacturer.


Given the facts in this case, the plain and unambiguous language of the statute

required the State, in order to convict Foster of a Level 3 felony, to prove the

amount of methamphetamine involved was between five and ten grams.

However, in order to convict Foster of a Level 2 felony, the State was required

to prove the amount of methamphetamine involved was between five and ten

grams, and as an enhancing circumstance, that Foster manufactured or financed

the manufacture of the drug he and Thurston conspired to deal. See Ind. Code §

Court of Appeals of Indiana | Memorandum Decision 82A05-1511-CR-2010 | September 22, 2016 Page 23 of 26
       35-48-1-16.5(5). Therefore, convicting Foster of conspiracy to commit dealing

       in methamphetamine as a Level 2 felony requires proof of an additional

       element not required to sustain a conviction for the same as a Level 3 felony

       and therefore the two crimes are not identical. See Poling, 853 N.E.2d at 1276-

       77; supra, Part III. We conclude Indiana Code section 35-48-4-1.1 does not

       violate Indiana’s Proportionality Clause as applied to Foster.


                                  V. Inappropriate Sentence
[36]   Foster further contends his sentence is inappropriate in light of the nature of the

       offense and his character. Indiana Appellate Rule 7(B) provides, “The Court

       may revise a sentence 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.” The defendant

       bears the burden of persuading this court that his or her sentence is

       inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether

       we regard a sentence as inappropriate turns on “the culpability of the defendant,

       the severity of the crime, the damage done to others, and myriad other factors

       that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224

       (Ind. 2008). Finally, we note the principal role of appellate review is to “leaven

       the outliers,” not achieve the perceived “correct” result in each case. Id. at

       1225. We therefore “focus on the forest—the aggregate sentence—rather than

       the trees—consecutive or concurrent, number of counts, or length of the

       sentence on any individual count.” Id.



       Court of Appeals of Indiana | Memorandum Decision 82A05-1511-CR-2010 | September 22, 2016 Page 24 of 26
[37]   The advisory sentence is the starting point the legislature has selected as an

       appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081.

       The trial court entered judgment of conviction for conspiracy to commit dealing

       in methamphetamine as a Level 2 felony. A person convicted of a Level 2

       felony shall be imprisoned for a fixed term between ten and thirty years, with

       the advisory sentence being seventeen and one-half years. Ind. Code § 35–50–

       2–4.5. The trial court sentenced Foster to twenty-two and one-half years in the

       Department of Correction. As to the nature of the offense, we note nothing

       egregious or exceptional.


[38]   As to Foster’s character, we note he is twenty-four years old and has been

       convicted of multiple prior felonies. Specifically, Foster was previously

       convicted of dealing in methamphetamine and was sentenced only to

       probation. Foster violated probation in committing the present offense, which

       indicates a reckless disregard for the law and an inability to take advantage of a

       previously lenient sentence. We conclude Foster’s sentence is not inappropriate

       in light of the nature of the offense and his character.



                                               Conclusion
[39]   Foster makes a litany of arguments challenging his conviction and sentence, all

       of which we reject. We conclude the trial court did not err in admitting

       evidence seized during the search of Foster’s residence. In addition, the

       evidence is sufficient to sustain his conviction for conspiracy to commit dealing

       in methamphetamine as a Level 2 felony. This conviction does not violate any

       Court of Appeals of Indiana | Memorandum Decision 82A05-1511-CR-2010 | September 22, 2016 Page 25 of 26
       prohibition against double jeopardy. Moreover, Foster’s sentence does not

       violate the Proportionality Clause nor is it inappropriate. Accordingly, we

       affirm Foster’s conviction and sentence.


[40]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A05-1511-CR-2010 | September 22, 2016 Page 26 of 26
