      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                  FILED
      regarded as precedent or cited before any
                                                                        Dec 30 2016, 6:39 am
      court except for the purpose of establishing
      the defense of res judicata, collateral                                CLERK
                                                                         Indiana Supreme Court
      estoppel, or the law of the case.                                     Court of Appeals
                                                                              and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Mark Leeman                                              Gregory F. Zoeller
      Logansport, Indiana                                      Attorney General of Indiana
                                                               J.T. Whitehead
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Robert L. Dowell,                                        December 30, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               09A04-1601-CR-23
              v.                                               Appeal from the Cass Superior
                                                               Court
      State of Indiana,                                        The Honorable Thomas C.
      Appellee-Plaintiff                                       Perrone, Judge
                                                               Trial Court Cause No.
                                                               09D01-1402-FB-11



      Mathias, Judge.


[1]   Robert Dowell (“Dowell”) was convicted after a jury trial in Cass Superior

      Court of three felonies and two misdemeanors for making methamphetamine


      Court of Appeals of Indiana | Memorandum Decision 09A04-1601-CR-23 | December 30, 2016     Page 1 of 17
      and possessing methamphetamine, marijuana, and paraphernalia. Dowell

      challenges the evidence against him as unlawfully seized and as insufficient to

      sustain his convictions.


[2]   We affirm.


                                 Facts and Procedural History

[3]   On the evening of February 18, 2014, Officer Flaude Dillon (“Dillon”) of the

      Logansport Police Department (“LPD”) was speaking with Sabrina Brewer

      (“Brewer”) in the lobby of the Cass County jail. Dillon had been summoned to

      the jail by the Cass County sheriff, to whom Brewer had earlier reported what

      she was then telling Dillon: Brewer had just been to a home on Wabash Avenue

      on the Wabash River to pick up her boyfriend’s children. As she stood on the

      front porch, Brewer smelled a “strong chemical odor” coming from the house.

      Appellant’s App. p. 116. Brewer thought it smelled like methamphetamine was

      being made there. Brewer did not know the exact address but described the

      house well enough for Dillon to identify it.


[4]   Dillon relayed what Brewer told him to Sergeant Adam Morrow (“Morrow”) of

      the LPD. Together with every uniformed LPD officer on duty that night, up to

      “six or seven” officers in total, Tr. p. 60, Morrow went to the Wabash Avenue

      house for the stated purpose of checking on the safety and welfare of any other

      children who might be there. Morrow, a K-9 officer, left his dog in the car

      because fumes from methamphetamine production can hurt a dog’s nose.

      Morrow and other officers went to the front door and knocked. Standing on the

      Court of Appeals of Indiana | Memorandum Decision 09A04-1601-CR-23 | December 30, 2016   Page 2 of 17
      front porch, Morrow, like Brewer, smelled the distinct chemical odor of

      methamphetamine production.


[5]   Dowell opened the front door. With him was a woman, Amanda Burden

      (“Burden”). Morrow and the officers explained to Dowell why they were there.

      Dowell insisted no one else was in the house, certainly no children, and invited

      the officers inside so they could see for themselves. Once inside, the officers

      found the chemical smell to be nearly overwhelming. Headaches and nausea set

      in, and the officers’ eyes and noses began to burn.


[6]   The officers asked Dowell about the smell. Dowell replied that it came from

      chemicals he used in a makeshift tattooing operation run from the house.

      Morrow “did [not] agree with that assessment” of the odor’s origin. Tr. p. 327.

      Dowell pointed to a side room near the front door as his tattoo parlor. On a

      table inside that room, officers saw some tattooing equipment and a blue glass

      pipe with black residue inside. Morrow asked Dowell for Dowell’s consent to

      search the house for drugs. Dowell refused and told Morrow to get a warrant.

      The only thing the officers would find in the house, Dowell said, was some

      marijuana.

[7]   The officers decided to accept Dowell’s invitation to seek a search warrant.

      They handcuffed Dowell and Burden, put them in separate police cars, and

      swept the house to be sure no one else was inside. Morrow, meanwhile, left for

      the county courthouse to meet the prosecutor and judge on call that night.




      Court of Appeals of Indiana | Memorandum Decision 09A04-1601-CR-23 | December 30, 2016   Page 3 of 17
[8]   At the time, Judge Leo T. Burns (“Judge Burns”) was judge of the Cass Circuit

      Court and was on call that evening. Before becoming a judge, he had been an

      attorney who represented criminal defendants in Cass County as an appointed

      public defender. Dowell was one of his former clients, most recently in 2004,

      ten years earlier. From Dowell’s perspective, he and Attorney Burns had had an

      acrimonious relationship. The bases of this alleged acrimony, however, were

      never made quite clear. “[W]e fell out,” Dowell would later testify. Tr. pp. 83-

      84. “I filed some stuff against his will[;] he was ordered . . . to relinquish the

      information that I requested. He basically threw a . . . fit about it[.] I mean . . .

      we had words back and forth[;] we weren’t at good standings.” Tr. p. 84 (sic).

      Dowell would also later direct voluminous correspondence to the trial court,

      making nonspecific, unsupported claims of Judge Burns’s bias against him. It is

      not clear from the record whether, on February 18, 2014, Judge Burns

      recognized the target of Morrow’s search warrant application as his former

      client.


[9]   At the courthouse, Morrow described to Judge Burns what LPD officers had

      seen at the Wabash Avenue house. Morrow sought a warrant to search both the

      house and a detached garage on the same property. Judge Burns granted the

      request as to the house but denied it as to the garage, because “it seems like [the

      house] is where the probable cause is.” Appellant’s App. p. 120. The warrant

      authorized a search for “[e]vidence of criminal drug activity including [deleted]

      methamphetamine, marijuana, synthetic drugs, paraphernalia and any

      controlled substances, precursors, chemicals commonly used to manufacture,


      Court of Appeals of Indiana | Memorandum Decision 09A04-1601-CR-23 | December 30, 2016   Page 4 of 17
       weigh, package, sell or consume illegal drugs[.]” Ex. Vol., State’s Ex. 1. It was

       now early in the morning of February 19, 2014.


[10]   Morrow returned to the Wabash Avenue house with the search warrant. There,

       Morrow met Senior Trooper Michael Lorona (“Lorona”), a member of the

       “Clandestine Lab” unit of the Indiana State Police. Tr. p. 347. Lorona had been

       summoned to the house by reports that a possible methamphetamine

       production site had been discovered there. Armed with Morrow’s warrant,

       Lorona and another trooper entered the house and began their search in

       Dowell’s tattoo parlor. In a closet in that room, Lorona found a collection of

       ingredients and utensils used to make methamphetamine.1 Every step of the

       production process was accounted for by the items in the closet, except for

       pseudoephedrine, a necessary ingredient at the first step, and completed

       methamphetamine. Investigators would later examine records of the National

       Precursor Log Exchange (“NPLEx”), a privately maintained database of

       pseudoephedrine purchases, showing Dowell purchasing pseudoephedrine in

       such quantities that Lorona thought indicated a nontherapeutic purpose. On

       and around the table where the tattooing equipment and blue glass pipe had




       1
         This included a bottle of ammonium nitrate pellets taken from instant cold packs; opened and emptied
       instant cold packs; lithium-ion batteries; pliers and wire cutters for breaking open the batteries and extracting
       the lithium; a bottle of lye drain cleaner; camp fuel, used as a solvent; three bottles identified as “reaction
       vessels,” Tr. p. 613, used to contain the chemical reaction that results from the combination of the above
       ingredients and produces methamphetamine; a bottle of sulfuric acid drain cleaner; salt, which creates
       hydrochloric gas when mixed with sulfuric acid; two bottles identified as “[hydrogen chloride] generators,”
       Tr. p. 450, testing positive for hydrochloric gas, used to precipitate solid methamphetamine from the camp
       fuel solution; and other accoutrements of the production process, including tubing, a digital kitchen scale,
       coffee filters, funnels, and a makeshift ventilation system.

       Court of Appeals of Indiana | Memorandum Decision 09A04-1601-CR-23 | December 30, 2016               Page 5 of 17
       been seen earlier, Lorona found, among other items, the blue glass pipe with

       black residue, later identified as burned marijuana; two clear glass pipes, one of

       which tested positive for methamphetamine; a bag of marijuana; and the butts

       of two marijuana cigarettes.


[11]   Having catalogued and photographed what he found, Lorona removed

       potentially dangerous items from the room for proper disposal, opened the

       windows to ventilate the house, and told the LPD officers that his investigation

       was complete. Dowell and Burden were arrested for conspiracy to manufacture

       methamphetamine.2


[12]   Later that day, February 19, 2014, the State charged Dowell in a six-count

       information with Class B felony dealing in methamphetamine, Class D felony

       possession of methamphetamine, Class D felony maintaining a common

       nuisance, Class D felony unlawful possession of a syringe, Class A

       misdemeanor possession of marijuana, and Class A misdemeanor possession of

       paraphernalia. The State later added a habitual offender charge which rested in




       2
         It was the official account below that Dowell and Burden were first detained for their safety and the
       officers’, and only arrested after the search warrant was executed. See, e.g., Tr. pp. 59, 310, 313. Given that
       the search warrant was not issued until about 12:30 A.M. on February 19, 2014, Ex. Vol., State’s Ex. 1, on
       this account, Dowell would have been arrested some time later that morning. A Cass County sheriff’s
       booking report, however, records that Dowell was booked into the Cass County jail at 11:55 P.M. on
       February 18, 2014, on the charge of reckless possession of paraphernalia, Appellant’s App. p. 21, presumably
       for the blue glass pipe LPD officers saw inside the Wabash Avenue house before the warrant was applied for.
       While nothing in Dowell’s appeal turns on this issue, we find it disconcerting that law enforcement could
       lead a man from his house in handcuffs in the middle of the night without being able to give a consistent
       account of what they were doing. See Tr. p. 72 (At the suppression hearing, Morrow “[did]n’t recall” whether
       it was possible that Dowell was already in jail when the warrant was executed.)

       Court of Appeals of Indiana | Memorandum Decision 09A04-1601-CR-23 | December 30, 2016            Page 6 of 17
       part on a felony conviction secured in the 2004 case in which Attorney Burns

       had represented Dowell.


[13]   The next day, February 20, 2014, Dowell appeared before Judge Burns for an

       initial hearing. By then, Judge Burns had remembered his earlier representation

       of Dowell. From an abundance of caution and concern for propriety, Judge

       Burns disclosed that representation in open court, and advised Dowell that

       “when you do get a chance to talk to your lawyer . . . that [sh]ould be one of the

       first things that you talk about, . . . whether . . . I [should] continue to be the

       [j]udge in this case or whether . . . it’s more appropriate that somebody else be

       the [j]udge.” Appellant’s App. p. 38. Dowell replied that he understood. At a

       pretrial conference on April 24, 2014, Judge Burns’s possible recusal was

       discussed more fully. Again from an abundance of caution, Judge Burns

       thought that “discretion up front is better than holding on to something and

       running into an issue later on, so I will recuse myself . . . .” Appellant’s App.

       pp. 67-68. The case was ultimately transferred to Judge Thomas C. Perrone of

       Cass Superior Court, who assumed jurisdiction over Dowell’s case on May 6,

       2014.

[14]   On August 26, 2015, Dowell moved to suppress the evidence taken from the

       Wabash Avenue home under the warrant, arguing that the warrant was not

       supported by probable cause and had not been issued by a neutral and detached

       magistrate. At a hearing on September 24, 2015, the court heard the testimony

       of Morrow and Dowell and the parties’ arguments. The court denied the

       motion in a memorandum order on October 6, 2015.

       Court of Appeals of Indiana | Memorandum Decision 09A04-1601-CR-23 | December 30, 2016   Page 7 of 17
[15]   Dowell’s case was tried to a Cass County jury over three days from October 27,

       2015, to October 29, 2015. At the close of the State’s evidence, Dowell sought

       and won dismissal of the charge for Class D felony unlawful possession of a

       syringe. The jury returned guilty verdicts on the five remaining charges and

       found Dowell to be a habitual offender. On December 17, 2015, the trial court

       merged the convictions for possessing methamphetamine and maintaining a

       common nuisance into the conviction for dealing methamphetamine, and

       sentenced Dowell to an aggregate term of forty-two years in the Department of

       Correction on the remaining convictions.


[16]   This appeal followed. Dowell claims that the search warrant for the Wabash

       Avenue house was invalid under the Fourth Amendment because it was not

       issued by a neutral and detached magistrate, and that all the fruits of the search

       under the warrant therefore should have been suppressed. Dowell claims

       further that the evidence against him was insufficient to support his convictions

       because the State did not show he had possession of the evidence taken from

       the Wabash Avenue house.


                                      Discussion and Decision

       I. Dowell Waived His Claim of Fourth Amendment Error and Cannot Claim
       Fourteenth Amendment Error

[17]   The Fourth Amendment to the federal constitution requires that a warrant be

       issued by a “neutral and detached” magistrate. Lo-Ji Sales, Inc. v. New York, 442

       U.S. 319, 326 (1979). When the issuing magistrate fails to exhibit the neutrality

       and detachment required, for example, by “acting [not] as a judicial officer but

       Court of Appeals of Indiana | Memorandum Decision 09A04-1601-CR-23 | December 30, 2016   Page 8 of 17
       as an adjunct law enforcement officer,” id. at 327, the warrant will be

       invalidated. Id. It is not settled whether and how a magistrate fails to satisfy this

       requirement when issuing a warrant for a person whom he previously

       prosecuted, see United States v. Villanueva, 821 F.3d 1226, 1235 (10th Cir. 2016)

       (declining to address the merits in favor of decision under the good faith

       exception to the exclusionary rule), or, as here, for a person whom he

       previously represented as defense counsel under allegedly acrimonious

       circumstances. See generally Green v. State, 676 N.E.2d 755, 762-63 (Ind. Ct.

       App. 1997) (Neutrality and detachment are presumed in the absence of “any

       showing of actual bias or prejudice” on the part of the issuing magistrate; mere

       “contact or knowledge by a judge obtained outside the setting of a formal

       hearing” will not without more invalidate a warrant.), trans. denied.


[18]   This case does not afford us the opportunity to consider this question, however,

       because Dowell’s Fourth Amendment claim was waived. Dowell moved to

       suppress the challenged evidence before trial but concedes that he did not

       contemporaneously object to its admission at trial. Appellant’s Br. p. 21.

       Contemporaneous objection at trial was required to preserve the issue for

       appeal, irrespective of a pretrial motion to suppress. Jackson v. State, 735 N.E.2d

       1146, 1152 (Ind. 2000). Dowell’s claim of error was therefore waived unless the

       error alleged was fundamental. Trice v. State, 766 N.E.2d 1180, 1182 (Ind.

       2002).


[19]   Our supreme court has held that “a claim [for error in admitting unlawfully

       seized evidence at trial], without more, does not assert fundamental error.”

       Court of Appeals of Indiana | Memorandum Decision 09A04-1601-CR-23 | December 30, 2016   Page 9 of 17
       Brown v. State, 929 N.E.2d 204, 205 (Ind. 2010). The Brown court explained that

       errors are fundamental only where they “make a fair trial impossible or

       constitute clearly blatant violations of basic and elementary principles of due

       process.” Id. at 207 (internal quotation and citation omitted). With respect to

       the protections of the Fourth Amendment, and of the exclusionary remedy for

       its violation, the Brown court held that erroneous denial of these protections is

       fundamental error only when coupled with a “claim of fabrication of evidence,”

       “willful malfeasance,” or a “contention that the evidence is not what it appears

       to be.” Brown, 929 N.E.2d at 207.3


[20]   Dowell’s claim for Fourth Amendment error does not allege fabrication, willful

       malfeasance, or “that the evidence is not what it appears to be.” Id. We are

       therefore bound to deny that Dowell alleges fundamental error under Brown

       unless he can show an independent basis for finding such error.


[21]   For these reasons, Dowell relies on the independent due process guarantee of

       adjudication by an impartial tribunal under the Fourteenth Amendment.4 In re

       Murchison, 349 U.S. 133, 136 (1955); Kennedy v. State, 258 Ind. 211, 218, 280

       N.E.2d 611, 615 (1972). An allegation of actual bias alleges a due process

       violation, Murchison, 349 U.S. at 136 (“Fairness of course requires an absence of




       3
         The Brown court noted that the main run of suppression errors “ordinarily d[o] not cause us to question
       guilt,” id., suggesting that only errors affecting accuracy can be taken as fundamental in this context. But
       claims alleging “willful malfeasance” will not usually go to accuracy either, id., suggesting that Brown does
       not so limit fundamental Fourth Amendment error.
       4
           The State does not address Dowell’s argument on this point.


       Court of Appeals of Indiana | Memorandum Decision 09A04-1601-CR-23 | December 30, 2016            Page 10 of 17
       actual bias in the trial of case.”), and fundamental error. Rosendaul v. State, 864

       N.E.2d 1110, 1115 (Ind. Ct. App. 2007) (“[I]f a judge is biased, fundamental

       error exists.”), trans. denied; Ware v. State, 560 N.E.2d 536, 539 (Ind. Ct. App.

       1990) (“If the trial judge was biased against [defendant], it [was] fundamental

       error . . . .”).


[22]   Dowell’s argument fails, however, because the due process clause of the

       Fourteenth Amendment has not been held to apply of its own force to warrant

       application proceedings, and Dowell has not offered argument that it does or

       should. In addition to an impartial tribunal, due process ordinarily guarantees

       notice and an opportunity to be heard. See, e.g., Twining v. New Jersey, 211 U.S.

       78, 111 (1908). Dowell, however, like all other targets of warrant applications,

       received neither, and does not argue that he should have.


[23]   More fundamentally, in Gerstein v. Pugh, the Supreme Court held that a pretrial

       detainee is entitled to a probable cause determination by a neutral and detached

       magistrate under the Fourth Amendment, but not to an adversary proceeding of

       the type guaranteed by the due process clause in other contexts. 420 U.S. 103,

       126 (1975); see also id. at 127 (Stewart, J., concurring) (“I cannot join the

       [majority’s] effort to foreclose any claim that the traditional requirements of

       constitutional due process are applicable in the context of pretrial detention.”).

       In rejecting the broader guarantees of the due process clause as a basis for its

       decision in favor of the specific terms of the Fourth Amendment, the Gerstein

       Court reasoned that the “Fourth Amendment was tailored explicitly for the

       criminal justice system, and its balance between individual and public interests

       Court of Appeals of Indiana | Memorandum Decision 09A04-1601-CR-23 | December 30, 2016   Page 11 of 17
       has always been thought to define the ‘process that is due’ for seizures of person

       or property in criminal cases . . . .” Id. at 125 fn.27. This reasoning applies to

       warrant applications with even greater force, as the text of the Fourth

       Amendment is tailored even more explicitly to the warrant process than to

       pretrial detention.


[24]   Simply said, in the criminal context, the Fourteenth Amendment guarantee is

       particularly concerned with adjudication at trial. See, e.g., Albright v. Oliver, 510

       U.S. 266, 283 (1994) (Kennedy, J., concurring) (“The constitutional

       requirements [the Supreme Court] enforced in [cases recognizing due process

       requirements not specified in the Bill of Rights] ensured fundamental fairness in

       the determination of guilt at trial.”); Murchison, 349 U.S. at 137 (Due process

       forbids a magistrate from acting as grand jury and judge in the same case

       because the judge could not be “wholly disinterested in the conviction or

       acquittal of those accused. . . . Fair trials are too important a part of our free

       society to let prosecuting judges be trial judges of the charges they prefer.”);

       Rosendaul, 864 N.E.2d at 1115 (“A trial before an impartial judge is an essential

       element of due process.”); Ware, 560 N.E.2d at 539 (Defendant “contends the

       judge’s bias against him . . . denied him a fair trial.”). Here, even if Judge Burns

       was actually biased against him in issuing the search warrant, Dowell cannot

       contend that this denied him a fair trial, as a different, unbiased judge heard

       Dowell’s arguments for suppression, decided to admit the challenged evidence,

       and presided over the jury trial at which Dowell was convicted.




       Court of Appeals of Indiana | Memorandum Decision 09A04-1601-CR-23 | December 30, 2016   Page 12 of 17
[25]   For these reasons, the proper standard for challenging the neutrality of a

       magistrate in issuing a warrant is supplied by the Fourth Amendment itself.

       Brown forecloses Dowell from bringing that challenge as a claim for

       fundamental error. Our supreme court may wish to reconsider Brown in that

       respect, but we cannot. The Fourteenth Amendment does not fly to Dowell’s

       rescue by allowing him to raise the same procedurally defaulted claim merely

       under a different rubric. Dowell’s Fourth Amendment claim was waived.


       II. The State Sufficiently Proved Dowell’s Possession and Control Over the
       Evidence in the Wabash Avenue House

[26]   At trial, due process requires that the State bear the burden of proving all

       elements of the crime charged beyond a reasonable doubt. In re Winship, 397

       U.S. 358, 364 (1970); Powers v. State, 540 N.E.2d 1225, 1227 (Ind. 1989). On

       direct appeal, a defendant may attack his conviction as unsupported by

       evidence sufficient to have satisfied the State’s burden.


[27]   When reviewing the sufficiency of the evidence, we neither reweigh the

       evidence nor re-evaluate its credibility. Henley v. State, 881 N.E.2d 639, 652

       (Ind. 2008). Rather, we view the facts of the case and the reasonable inferences

       to be drawn from them in the light most favorable to the judgment. Bailey v.

       State, 907 N.E.2d 1003, 1005 (Ind. 2009). We affirm unless no reasonable trier

       of fact could have found the elements of the crime proved beyond a reasonable

       doubt. Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007).




       Court of Appeals of Indiana | Memorandum Decision 09A04-1601-CR-23 | December 30, 2016   Page 13 of 17
[28]   To convict Dowell of Class B felony dealing in methamphetamine,5 the State

       was required to prove beyond a reasonable doubt that Dowell “knowingly or

       intentionally . . . manufacture[d] . . . methamphetamine . . . .” Ind. Code § 35-

       48-4-1.1(a) (2013). Manufacturing means


               the production, preparation, propagation, compounding,
               conversion, or processing of [methamphetamine], either directly
               or indirectly by extraction from substances of natural origin,
               independently by means of chemical synthesis, or by a
               combination of extraction and chemical synthesis, and includes
               any packaging or repackaging of [methamphetamine] or labeling
               or relabeling of its container.


       Id. at § 1-18(1)(A).


[29]   Though the statute does not in terms refer to possession, “[w]e accept that it is

       impossible to knowingly or intentionally manufacture methamphetamine

       without first possessing the chemical precursors [of methamphetamine and other

       necessaries] with the intent to make the drug. Methamphetamine cannot be

       conjured up out of thin air.” Iddings v. State, 772 N.E.2d 1006, 1016 (Ind. Ct.

       App. 2002) (finding possession of precursors with intent to manufacture not to

       be a factually lesser included offense of manufacturing in defendant’s case)

       (emphasis added), trans. denied; see also Hundley v. State, 915 N.E.2d 575, 579–81

       (Ind. Ct. App. 2011) (State had to and did prove that defendant possessed camp




       5
         Dowell’s convictions for possession of methamphetamine and maintaining a common nuisance were
       merged into the conviction for dealing methamphetamine. See ¶ 15 supra. Accordingly, we review only that
       latter conviction.

       Court of Appeals of Indiana | Memorandum Decision 09A04-1601-CR-23 | December 30, 2016       Page 14 of 17
       site where methamphetamine was manufactured.), trans. denied. Here, therefore,

       the State had to prove that Dowell possessed the ingredients and equipment for

       manufacturing methamphetamine found in the closet of Dowell’s tattoo parlor.


[30]   Possession may be actual or constructive. Holmes v. State, 785 N.E.2d 658, 660

       (Ind. Ct. App. 2003). As the LPD did not come upon Dowell actually

       manufacturing methamphetamine, the State was required to prove Dowell’s

       constructive possession of the incriminating evidence. “Constructive possession

       is established by showing that the defendant [had] the intent and capability to

       maintain dominion and control over” the incriminating evidence. Id. A

       defendant’s exclusive possession or control of premises where such evidence is

       found, without more, permits an inference that he knew of and was capable of

       controlling it. Id.; see also Chandler v. State, 816 N.E.2d 464, 467 (Ind. Ct. App.

       2004) (“[T]he law infers the party in possession of the premises is capable of

       exercising dominion and control over all items on the premises.”).


[31]   For the purposes of exclusivity, possession or control refers to “the defendant’s

       relation to the place where the [evidence] is found: whether the defendant has

       the power, by way of legal authority or in a practical sense, to control the place

       where . . . the [evidence] is found.” Jones v. State, 807 N.E.2d 58, 65 (Ind. Ct.

       App. 2004), trans. denied. In this light, there was ample basis for the jury to find

       that Dowell, and only Dowell, had control over the Wabash Avenue house.6




       6
        At his sworn indigency hearing before Judge Burns, Dowell said that he “lived” at the Wabash Avenue
       house but that it was owned by his father, Appellant’s App. p. 48, presumably the “Victor Dowell” named in

       Court of Appeals of Indiana | Memorandum Decision 09A04-1601-CR-23 | December 30, 2016       Page 15 of 17
       Dowell answered the door when LPD officers first came knocking; Dowell

       invited the officers inside to see that no one was present but he and Burden;

       Dowell told the officers that he ran a tattoo parlor from the house, pointing

       them to the room where the methamphetamine was produced; Dowell refused

       his consent to a search of the house; and Dowell told the officers that they

       would find marijuana in the house, which, like the evidence of

       methamphetamine production, was then located in Dowell’s tattoo parlor. No

       evidence before the jury indicated that Burden had any say over what went on

       at the Wabash Avenue house. Burden stood silent as Dowell first granted and

       then denied the LPD officers access to the house. Dowell’s unsupported

       assertion to the contrary notwithstanding, it was Brewer’s boyfriend, not

       Burden, whose children were said to have been picked up from the house that

       night. No evidence before the jury would have permitted it to find that Burden

       was anything but a visitor to Dowell’s home.


[32]   From this evidence and all reasonable inferences drawn in favor of the

       judgment below, a reasonable trier of fact could have concluded that Dowell

       had the intent and capability to control the ingredients and equipment for

       manufacturing methamphetamine found in the closet of Dowell’s tattoo parlor.



       the search warrant. Ex. Vol., State’s Ex. 1. The younger Dowell did not pay cash rent to his father, he
       explained, but “d[id] the remodeling there, painting and such” apparently as a form of in-kind rent.
       Appellant’s App. pp. 48-49. This testimony was, of course, never put to the jury. The search warrant itself
       was introduced at trial, but only to show its effect on the LPD officers serving it. Tr. p. 330 (“[W]hat [the
       State] need[s] to put before the jury is evidence that the officers . . . weren’t just kicking in somebody’s door
       without authorization . . . .”) The warrant would have been hearsay violative of the Confrontation Clause,
       U.S. Const. amend. VI, if offered for the truth of its assertions that the Wabash Avenue house was “currently
       inhabited by Robert Dowell” and “owned by Victor Dowell . . . .” Ex. Vol., State’s Ex. 1.

       Court of Appeals of Indiana | Memorandum Decision 09A04-1601-CR-23 | December 30, 2016             Page 16 of 17
       Sufficient evidence supported Dowell’s conviction for dealing in

       methamphetamine.


                                                 Conclusion

[33]   Dowell’s claim of Fourth Amendment error was waived, and sufficient

       evidence proved his possession of the incriminating evidence needed to convict.

       For these reasons, Dowell’s convictions are affirmed.


[34]   Affirmed.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 09A04-1601-CR-23 | December 30, 2016   Page 17 of 17
