Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                        Feb 28 2014, 10:11 am
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:

MATTHEW J. McGOVERN                                GREGORY F. ZOELLER
Anderson, Indiana                                  Attorney General of Indiana

                                                   MICHAEL GENE WORDEN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA
DEBRA SUE MILES,                                   )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 82A01-1304-CR-179
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )

                APPEAL FROM THE VANDERBURGH SUPERIOR COURT
                        The Honorable Robert J. Pigman, Judge
                          Cause No. 82D02-1110-FA-1104

                                       February 28, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
          Debra Sue Miles appeals her conviction of Class A felony dealing in

methamphetamine.1 She argues the State did not present sufficient evidence she committed

the crime. We affirm.

                            FACTS AND PROCEDURAL HISTORY

          On October 2, 2011, police arrived at Miles’ apartment in search of a person believed

to be staying there with her son, Larry. When police arrived, they smelled an odor consistent

with the manufacture of methamphetamine. Police knocked on the door of Miles’ apartment

for ten to fifteen minutes, and heard rustling around and whispering inside the apartment.

The police used a battering ram to open the door.

          Once inside they found Miles, Debra Monyhan, and Larry on a bed just inside the

front door in varioius rooms in the apartment.            Police found items indicative of

methamphetamine manufacturing, including red flakes indicative of ground pseudoephedrine

pills, Liquid Fire, multiple containers of salt, an HCl generator, and coffee filters. The police

also found methamphetamine, methadone, and marijuana in the apartment. In the alley near

Miles’ apartment, the police found other precursors and a trash bag containing what

responding Officer Dave Barron testified was a “one-pot meth lab” (Tr. at 195) inside.

          The State charged Miles with two counts of Class A felony dealing in

methamphetamine, Class D felony possession of a controlled substance,2 and Class A

misdemeanor possession of marijuana.3 The State also alleged Miles was an Habitual


1
    Ind. Code § 35-48-4-1.1(b).
2
    Ind. Code § 35-48-4-7(a).
3
    Ind. Code § 35-48-4-11(b).
                                                2
Offender. At the end of Miles’ jury trial, the trial court dismissed all the charges except one

count of Class A felony dealing in methamphetamine. The jury found Miles guilty and Miles

pled guilty to being an Habitual Offender. The court imposed a thirty-year sentence for

dealing, with a thirty-year enhancement for the habitual substance offender adjudication.

                             DISCUSSION AND DECISION

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

probative evidence and reasonable inferences supporting the trial court’s decision. Drane v.

State, 867 N.E.2d 144, 146 (Ind. 2007). It is the fact-finder’s role, and not ours, to assess

witness credibility and weigh the evidence to determine whether it is sufficient to support a

conviction. Id. To preserve this structure, when we are confronted with conflicting

evidence, we consider it most favorably to the judgment. Id. We affirm a conviction unless

no reasonable fact-finder could find the elements of the crime proven beyond a reasonable

doubt. Id. It is therefore not necessary that the evidence overcome every reasonable

hypothesis of innocence; rather, the evidence is sufficient if an inference reasonably may be

drawn from it to support the trial court’s decision. Id. at 147.

       To prove Miles committed Class A felony dealing in methamphetamine, the State had

to prove she knowingly or intentionally manufactured, financed the manufacture of,

delivered, or financed the delivery of methamphetamine in a quantity of three grams or more.

Ind. Code § 35-48-4-1.1(b). At trial, the State argued Miles committed the crime as an

accomplice.    Under the accomplice liability theory, “[a] person who knowingly or

intentionally aids, induces, or causes another person to commit an offense commits that

                                              3
offense.” Ind. Code § 35-41-2-4. We consider four factors to determine whether a defendant

acted as an accomplice: “(1) presence at the scene of the crime; (2) companionship with

another at scene of crime; (3) failure to oppose commission of crime; and (4) course of

conduct before, during, and after occurrence of crime.” Castillo v. State, 974 N.E.2d 458,

466 (Ind. 2012). The mere fact a defendant was present during a crime and did not oppose

the crime is not sufficient to convict her based on accomplice liability. However, “presence

at and acquiescence to a crime, along with other facts and circumstances” may be considered.

Id. Miles argues she was merely present in the apartment when the police discovered her

son in the process of making methamphetamine. We disagree.

       Miles was present and “trying to be asleep” (Tr. at 153) when police arrived, and she

did not answer the door for ten to fifteen minutes even though the police were “beating on

the door.” (Id. at 151.) Officer Jeff Taylor testified that, after knocking on the door, he

could hear “voices and you could hear people moving around.” (Id. at 42.) While Larry hid

the materials he used to make methamphetamine, Miles “just [sat] there on the bed.” (Id. at

133.) To enter the apartment, the police had to use a “ram” to open the door. (Id. at 48.)

       In Miles’ bedroom, the police found methamphetamine and items used to produce

methamphetamine, including a HCl generator made from a green two-liter bottle, a two-

pound container of salt, and pseudoephedrine tablets. The police found other precursors in

Larry’s bedroom and in the only bathroom in the apartment. There was a chemical smell so

strong that other tenants in the apartment building “came down choking and vomiting

actually on the sidewalk right in front of, right in front of the house.” (Id. at 41.) One

                                             4
officer testified the smell was consistent with the smell emitted from the manufacture of

methamphetamine. However, despite these strong odors detectable to people outside the

apartment, Miles told police “[s]he had no clue what was going on inside the place. She

pretty much took her medication and went to bed and didn’t know anything else.” (Id. at 78.)

       There was sufficient evidence Miles was an accomplice to Larry’s methamphetamine

manufacturing. See Fowler v. State, 900 N.E.2d 770, 775 (Ind. Ct. App. 2009) (evidence

sufficient to support conviction of dealing in methamphetamine based on accomplice liability

when police found precursors in almost every room, vapors consistent with

methamphetamine production were readily apparent, and defendant helped carry precursors

into the house). Miles’ arguments to the contrary are invitations to reweigh the evidence,

which we cannot do. See Drane, 867 N.E.2d at 146 (appellate court will not reweigh

evidence or judge the credibility of witnesses). Accordingly, we affirm Miles’ conviction of

Class A felony dealing in methamphetamine.

       Affirmed.

VAIDIK, C.J., concurs.

RILEY, J., dissents with separate opinion.




                                             5
                              IN THE
                    COURT OF APPEALS OF INDIANA

DEBRA SUE MILES,                                  )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )     No. 82A01-1304-CR-179
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


RILEY, Judge, dissenting

       I respectfully dissent from the majority’s decision to affirm Miles’ conviction for

dealing in methamphetamine. Ind. Code §§ 35-48-4-1.1(a)(1)(A), -(b)(1). Based on the

record before me, I do not find that there is evidence beyond a reasonable doubt establishing

that Miles “knowingly or intentionally aid[ed], induce[d], or cause[d] another person to”

manufacture methamphetamine. I.C. § 35-41-2-4.

       In order to uphold a conviction under the theory of accomplice liability, there must be

evidence of affirmative conduct by a defendant, “either in the form of acts or words, from

which an inference of common design or purpose to effect the commission of a crime may

reasonably drawn.” Vandivier v. State, 822 N.E.2d 1047, 1054 (Ind. Ct. App. 2005), trans.

denied. It is well-settled that a defendant’s mere presence or failure to oppose the

commission of a crime may be considered in light of the totality of facts and circumstances as

                                              6
tending to show participation but, standing alone, are insufficient to establish accomplice

liability. Id.

       The evidence establishes that, at the time of her arrest, Miles was fifty-four years old

and suffered from numerous health impairments. Her adult son, Larry, had moved into her

apartment following his release from prison several months earlier. Both Larry and Miles’

step-cousin, Monyhan, who was visiting Miles when police arrived, explained to police and

testified during Miles’ trial that Miles had absolutely no involvement in manufacturing

methamphetamine. In a sworn affidavit, Larry claimed responsibility “for any and all illegal

items found” in Miles’ apartment and stated that Miles “told me not to have illegal items in

her home[,]” but Miles “was very sick and I did what I wanted to do and she couldn’t stop

me.” (Appellant’s App. p. 27). Although Larry admitted that he had manufactured

methamphetamine on prior occasions, he testified that this was the first time he had done so

in Miles’ apartment, so she was not aware of what he was doing. Additionally, Larry and

Monyhan both testified that, as the police were beating on the door, Miles was lying in bed

and did nothing to help Larry discard the drugs or hide the precursors. Larry explained in

detail as to how and where he hid the items recovered when police searched Miles’

apartment, including that he brought the green HCl generator bottle and Liquid Fire into the

house that night and hid the green bottle in Miles’ room as the police were knocking; that he

took everything from his pockets and shoved it into the laundry basket before lying down on

the bed; that the scales belonged to him; that he hid the coffee filters in the gray storage tub

full of his clothes; and that he had taken the bag of trash from his friend’s car and dumped it

                                               7
in the alley.

          The majority relies on Fowler v. State, 900 N.E.2d 770 (Ind. Ct. App. 2009), where

this court upheld a conviction under accomplice liability for dealing in methamphetamine.

Similar to the facts in Fowler, Larry used Miles’ residence as a methamphetamine lab, police

found methamphetamine precursors in each room of the apartment, the apartment had a

strong chemical odor, and police discovered finished methamphetamine product in the home.

See id. at 775. However, unlike in Fowler where the defendant actually carried a bag of

precursors into his house for a friend, there is no evidence that Miles ever handled or

obtained any ingredients, that she assisted Larry in procuring any materials, or—even if she

was aware of his activities—that she consented to Larry bringing such items into her home.

See id.

          Both the State and the majority emphasize the finding of methamphetamine precursors

in Miles’ bedroom as indicative of Miles’ role in “provid[ing] the kitchen” for Larry.

(State’s Br. p. 6). However, they disregard the non-traditional layout of Miles’ apartment.

The apartment consists of a kitchen, a bathroom, and two other rooms. Miles slept in the

middle room, which also doubled as a TV/living room area; the back room served as Larry’s

bedroom. Thus, Miles did not have privacy or exclusive use of her “bedroom,” so there is

little significance in the finding of precursors. The State also argues—and the majority

agrees—that Miles neglected to turn Larry into the police or answer the door when the police

were knocking, but this does not amount to affirmative conduct undertaken by Miles in order

to facilitate Larry’s drug production.

                                               8
       The State presented evidence that methamphetamine and precursors were found in the

shared residence of Miles and Larry but set forth no other evidence to establish that Miles

was more than merely present in her own home. It is not the role of this court to reweigh

evidence or assess witness credibility, but there must be evidence in the record to show that

Miles affirmatively acted to aid, induce, or cause Larry to manufacture methamphetamine.

See Green v. State, 937 N.E.2d 923, 927, 930 (Ind. Ct. App. 2010), trans. denied. Here, there

is no such evidence. Based on the foregoing, I conclude that the State failed to present

evidence beyond a reasonable doubt to uphold Miles’ conviction for dealing in

methamphetamine and would reverse.




                                             9
