                                                               FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                            Mar 09 2012, 9:02 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                       CLERK
                                                                 of the supreme court,
                                                                 court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

KIMBERLY A. JACKSON                              GREGORY F. ZOELLER
Indianapolis, Indiana                            Attorney General of Indiana

                                                 ANN L. GOODWIN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

KENNETH A. LAINHART,                             )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 24A01-1108-CR-371
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE FRANKLIN CIRCUIT COURT
                          The Honorable J. Steven Cox, Judge
                             Cause No. 24C01-1009-FB-48



                                        March 9, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

      Kenneth A. Lainhart appeals his conviction for dealing in methamphetamine, as a

Class B felony, following a jury trial. Lainhart raises the following five issues for our

review:

      1.     Whether the State violated his right to be free from unreasonable
             searches under the federal or Indiana constitutions;

      2.     Whether the trial court committed fundamental error when it
             permitted an arresting officer to testify that Lainhart‟s acquaintance
             at the crime scene stated that the two were there to “cook meth,”
             transcript at 77;

      3.     Whether the State adequately demonstrated chain of custody over
             the numerous exhibits it had seized from the crime scene;

      4.     Whether the trial court abused its discretion when it instructed the
             jury on accomplice liability; and

      5.     Whether the State presented sufficient evidence to support
             Lainhart‟s conviction.

      We affirm.

                      FACTS AND PROCEDURAL HISTORY

      On September 14, 2010, a group of surveyors observed a red van drive off Laurel

Road in Franklin County at a high rate of speed, up a hill, and into the woods. The

surveyors observed the van leave the woods later and subsequently return. Thinking the

behavior suspicious, the surveyors informed the Franklin County Sheriff‟s Department.

Chief Deputy Doug Baker and Deputy Sheriff Brad Lecher responded to the call and

spoke with the surveyors. The officers entered the wooded area near where the van had

reportedly entered and followed a “rough” path for about a mile and a half. Transcript at

74.
                                           2
       The officers then observed a parked red van with two people standing behind the

van‟s open back doors. The two individuals were engrossed “in whatever they were

doing” and did not notice the officers arrive in their vehicle. Id. at 75. But when the

officers exited their vehicle, Lainhart “took off running” while the other person “stayed at

the back of the van.” Id. at 74. Officer Baker recognized Lainhart and ordered him to

stop, and Officer Lecher pursued Lainhart on foot. Lainhart ran into a tree, at which time

Officer Lecher handcuffed him.

       Officer Baker approached the other person at the scene, Bonnie Scarette. As he

approached her at the van, he saw that, “[a]ll the way down through the woods[,] there

w[ere] precursors of a meth lab.” Id. at 76. Officer Baker asked Scarette to move “away

from the lab because of the smell and . . . the hazardous material around.” Id. at 77.

Officer Baker then read Scarette her Miranda rights, and she told him that she and

Lainhart were there to “cook meth.” Id.

       Later,   Trooper    Jeremy    Franklin,   an   expert   in   the   manufacture    of

methamphetamine, arrived at the scene. He seized a total of thirty-eight precursors as

well as equipment used in the manufacture of methamphetamine. In the van he observed

a container of pink sludge floating in liquid, a second container of pieces of lithium

floating in liquid, and a fifty-pound bag of ammonium nitrate. A short distance away he

found bottles of Drano, propane tanks, and a five-gallon bucket with tubes attached to it.

Officer Franklin recognized all of these items as part of a meth lab.

       On September 17, 2010, the State charged Lainhart with dealing in

methamphetamine, as a Class B felony. The trial court held Lainhart‟s two-day trial on


                                             3
June 6 and 7, 2011, after which a jury found him guilty. This appeal ensued. Additional

facts will be provided as necessary.

                                 DISCUSSION AND DECISION

                           Issue One: Reasonableness of the Search

        Lainhart first contends that the State violated his right to be free from

unreasonable search and seizure under the Fourth Amendment to the U.S. Constitution

and under Article I, Section 11 of the Indiana Constitution. Specifically, Lainhart argues

that “[t]he officers‟ pursuit of the van on private property violated the Fourth

Amendment.” Appellant‟s Br. at 12. For the same reason, Lainhart contends that his

rights under the Indiana Constitution were violated.1

        “[T]he Fourth Amendment protects people, not places.” Katz v. United States,

389 U.S. 347, 351 (1967). Further:

        The Fourth Amendment protects persons from unreasonable search and
        seizure and this protection has been extended to the states through the
        Fourteenth Amendment. Brown v. State, 691 N.E.2d 438, 443 (Ind. 1998).
        Federal Fourth Amendment rights are personal and may not be vicariously
        asserted. Peterson v. State, 674 N.E.2d 528, 532 (Ind. 1996) (quoting
        Rakas v. Illinois, 439 U.S. 128, 133-34 (1978)), cert. denied, 522 U.S. 1078
        (1998). The definition of those rights is more properly placed within the
        purview of substantive Fourth Amendment law than within that of standing.
        Minnesota v. Carter, 525 U.S. 83 (1998). Thus, in order to claim the
        protection of the Fourth Amendment, a defendant must demonstrate that he
        personally has an expectation of privacy in the place searched and that his
        expectation is reasonable. Id. In reviewing whether a privacy expectation
        exists under the Fourth Amendment, an appellate court also examines

        1
            Lainhart twice makes a fleeting comment that “passengers have standing to challenge any part
of a vehicle stop.” Appellant‟s Br. at 13, 17. However, the entirety of Lainhart‟s Fourth Amendment and
Article I, Section 11 arguments are based only on the police intrusion onto the private property, not on the
police search of the vehicle. We consider only the actual arguments raised by Lainhart and do not
undertake the burden of arguing an alternative position on his behalf. Fleeting references are not a
substitute for arguments supported by cogent reasoning. See Ind. Appellate Rule 46(A)(8)(a); see, e.g.,
Patel v. United Inns, Inc., 887 N.E.2d 139, 149 n.6 (Ind. Ct. App. 2008).
                                                     4
       whether the defendant has control over or ownership in the premises
       searched. Peterson, 674 N.E.2d at 532.

                                           ***

               Article I, Section 11 of the Indiana Constitution provides an
       independent prohibition against unreasonable searches and seizures. Id. [at
       533]. The right of Indiana citizens “to be secure in their persons, houses,
       papers, and effects, against unreasonable search or seizure” under Section
       11 is a personal right of the individual whose person, house, papers or
       effects are searched or seized. Id. at 533-34 (citing Snedegar v. State, 196
       Ind. 254, 257, 146 N.E. 849, 849-50 (1925)). Indiana law has also imposed
       a requirement of standing to challenge a search or seizure. Id. at 534.
       While the Fourth Amendment inquiry focuses largely on the defendant‟s
       privacy expectation in the premises searched, cases interpreting our state
       constitution focus both on the premises searched and the defendant‟s
       interest in the property seized. Id. Thus, to challenge evidence as the result
       of an unreasonable search or seizure under Article I, Section 11, a
       defendant must establish ownership, control, possession, or interest in
       either the premises searched or the property seized. Id.

Mays v. State, 719 N.E.2d 1263, 1266-67 (Ind. Ct. App. 1999), trans. denied.

       The trial court concluded, and we agree, that Lainhart does not have standing

under either constitutional provision to challenge the police entry onto the property in

question. The undisputed evidence shows that Lainhart did not have ownership, control,

possession, or an interest in the searched premises. Accordingly, he had no expectation

of privacy and lacks standing to complain about the State‟s intrusion onto those premises

under both the federal and the state constitutions. See id.

                           Issue Two: Confrontation Clause

       Lainhart next contends that the trial court erroneously admitted Officer Baker‟s

testimony that Scarette stated she and Lainhart were in the woods to “cook meth.” See

Transcript at 77. Specifically, Lainhart argues that the admission of that statement denied

him the right to confront Scarette and permitted the jury to hear inadmissible hearsay.
                                             5
But Lainhart acknowledges that his trial counsel did not object to Officer Baker‟s

testimony and, as such, that on appeal he must demonstrate fundamental error. “A

fundamental error is a substantial, blatant violation of basic principles of due process

rendering the trial unfair to the defendant.” Taylor v. State, 717 N.E.2d 90, 93 (Ind.

1999). “[W]e view this exception as an extremely narrow one, available only when the

record reveals clearly blatant violations of basic and elementary principles of due

process, and the harm or the potential for harm cannot be denied.” Canaan v. State, 683

N.E.2d 227, 235 n.6 (Ind. 1997) (quotation and alterations omitted).

       Lainhart‟s argument on appeal does not demonstrate fundamental error.           The

State‟s evidence over a two-day trial included the arresting officers‟ testimonies that they

had observed Lainhart at the crime scene and that he had fled from them upon their

arrival. The State also introduced a host of exhibits seized from the van that thoroughly

demonstrated the van was          being used as a laboratory for             manufacturing

methamphetamine. And the prosecutor did not reference the one-time reiteration of

Scarette‟s comment in either his opening or closing statement. We are confident that,

even if that evidence had been excluded, the jury would have reached the same result that

it did. Accordingly, the admission of that testimony did not obviously harm Lainhart and

did not harm him beyond a reasonable doubt. See id.; Simpson v. State, 628 N.E.2d

1215, 1219 (Ind. Ct. App. 1994), trans. denied.

                                Issue Three: Chain of Custody

       Lainhart next asserts that the State failed to establish a proper chain of custody

over the evidence seized from the scene when it sought to admit that evidence at trial.


                                             6
Generally, the sufficiency of an evidentiary foundation is a matter left to the trial court‟s

sound discretion, and we will reverse only upon a showing of an abuse of that discretion.

Payne v. State, 658 N.E.2d 635, 644 (Ind. Ct. App. 1995), 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. Roush v. State, 875 N.E.2d 801, 808 (Ind. Ct.

App. 2008).

       Regarding chain of custody in particular, our supreme court has held:

       The requirement that a chain of custody be proven by a party submitting
       physical evidence at trial is an attempt to satisfy the goal of assuring the
       trial court that the evidence submitted has not been substituted or tampered
       with. While the State is not required to exclude every possibility of
       tampering, the chain of custody must give reasonable assurances that the
       property passed through the hands of the parties in an undisturbed
       condition.

Johnson v. State, 580 N.E.2d 670, 671-72 (Ind. 1991) (quotation and citation omitted).

Further, “the State need not establish a perfect chain of custody whereby any gaps go to

the weight of the evidence and not to admissibility.” Culver v. State, 727 N.E.2d 1062,

1067 (Ind. 2000).

       The State demonstrated chain of custody to the exhibits in question. At trial,

Officer Franklin testified that he removed items from the crime scene and placed them in

the locked trunk of his police vehicle. Transcript at 140. The next day, he signed the

items over to Officer Lecher, who placed the items in his personal storage locker, to

which only he possessed the key. Id. at 130-31. Thereafter, Officer Lecher signed the

items over to Officer Baker, who then delivered the evidence to the Indiana State Police

Laboratory (“the ISP Lab”). Id. at 142. An officer of the ISP Lab placed the evidence in


                                             7
the ISP Lab‟s vault until it was tested by forensic scientist Audrey Youvonwich. Id. at

122-23. Officer Baker retrieved the evidence from the ISP Lab on May 2, 2011, and kept

it in a locked evidence locker until he brought it to court for Lainhart‟s trial on June 6.

Id. at 144-45.

       Lainhart‟s arguments on appeal question the veracity of the witnesses and attempt

to impeach their testimonies based simply on the fact that the State had to recall the

witnesses in the course of establishing the exhibits‟ foundations and the fact that some of

the witnesses had to rely on notes to recall the details of the chain of custody. These

arguments, to the extent they have any merit, go only to the weight of the evidence and

not to the admissibility of the exhibits. The State sufficiently demonstrated chain of

custody and the trial court did not abuse its discretion in admitting the exhibits.

                              Issue Four: Jury Instructions

       Lainhart also challenges the trial court‟s instruction to the jury on accomplice

liability. As we have discussed:

       “The purpose of a jury instruction „is to inform the jury of the law
       applicable to the facts without misleading the jury and to enable it to
       comprehend the case clearly and arrive at a just, fair, and correct verdict.‟ ”
       Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001) (quoting Chandler v. State,
       581 N.E.2d 1233, 1236 (Ind. 1991)). Instruction of the jury is left to the
       sound judgment of the trial court and will not be disturbed absent an abuse
       of discretion. Schmidt v. State, 816 N.E.2d 925, 930 (Ind. Ct. App. 2004),
       trans. denied. Jury instructions are not to be considered in isolation, but as
       a whole and in reference to each other. Id. The instructions must be a
       complete, accurate statement of the law which will not confuse or mislead
       the jury. Id. at 930-31. Still, errors in the giving or refusing of instructions
       are harmless where a conviction is clearly sustained by the evidence and the
       jury could not properly have found otherwise. Id. at 933 (citing Dill, 741
       N.E.2d at 1233).

Williams v. State, 891 N.E.2d 621, 630 (Ind. Ct. App. 2008). Further:
                                              8
       In reviewing a challenge to a jury instruction, we consider: (1) whether the
       instruction is a correct statement of the law; (2) whether there was evidence
       in the record to support giving the instruction; and (3) whether the
       substance of the instruction is covered by other instructions given by the
       court.

Simpson v. State, 915 N.E.2d 511, 519 (Ind. Ct. App. 2009) (quotation omitted), trans.

denied.

       Here, the trial court instructed the jury in relevant part as follows: “When one or

more individuals combine to commit an offense, each is responsible for the acts

committed in furtherance of their common design.” Appellant‟s App. at 76. On appeal,

Lainhart contends that that instruction was not supported by the evidence. Lainhart is

incorrect.

       The undisputed evidence demonstrated that Lainhart and Scarette were both

present at the crime scene when the officers arrived, and the State presented

overwhelming evidence that the van at the scene was being used as a laboratory for

making methamphetamine. Officer Baker further testified that, upon his arrival at the

scene, Lainhart and Scarette were both very engaged in “whatever they were doing.”

Transcript at 75. Thus, the evidence showed that Lainhart and Scarette were acting in

concert, which supported the giving of an instruction on accomplice liability. The trial

court did not abuse its discretion in tendering that instruction to the jury.

                         Issue Five: Sufficiency of the Evidence

       Finally, Lainhart argues that the State failed to present sufficient evidence to

support his conviction. When reviewing a claim of sufficiency of the evidence, we do

not reweigh the evidence or judge the credibility of the witnesses. Jones v. State, 783


                                               9
N.E.2d 1132, 1139 (Ind. 2003). We look only to the probative evidence supporting the

verdict and the reasonable inferences that may be drawn from that evidence to determine

whether a reasonable trier of fact could conclude the defendant was guilty beyond a

reasonable doubt. Id. If there is substantial evidence of probative value to support the

conviction, it will not be set aside.

       The State charged Lainhart with dealing in methamphetamine, as a Class B felony.

To prove that charge, the State was required to demonstrate beyond a reasonable doubt

that Lainhart knowingly or intentionally manufactured methamphetamine, pure or

adulterated.   Under Indiana law, “manufacture” means “the production, preparation,

propagation, compounding, conversion, or processing of a controlled substance . . . .”

Ind. Code § 35-48-1-18. On appeal, Lainhart asserts that “[t]he State failed to establish

manufacturing occurred and[,] even if it did, [the State] failed to establish Lainhart

engaged in the manufacturing.” Appellant‟s Br. at 33. For all of the above stated

reasons, the State presented evidence sufficient to support Lainhart‟s conviction.

       Affirmed.

ROBB, C.J., and VAIDIK, J., concur.




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