MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                      FILED
this Memorandum Decision shall not be                            May 23 2016, 9:18 am

regarded as precedent or cited before any                             CLERK
                                                                  Indiana Supreme Court
court except for the purpose of establishing                         Court of Appeals
                                                                       and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                     Gregory F. Zoeller
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        Brian Reitz
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

William L. Howard,                                      May 23, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        92A03-1504-CR-129
        v.                                              Appeal from the Whitley Superior
                                                        Court
State of Indiana,                                       The Honorable Douglas M. Fahl,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        92D01-1406-FD-309



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 92A03-1504-CR-129 | May 23, 2016        Page 1 of 22
[1]   William L. Howard appeals his conviction for possession of two or more

      chemical reagents or precursors with intent to manufacture methamphetamine

      as a class D felony. He raises two issues which we revise and restate as:


            I.    Whether the trial court abused its discretion by admitting certain
                  evidence; and

           II.    Whether the evidence is sufficient to sustain his conviction.

      We affirm.


                                      Facts and Procedural History

[2]   Howard struggled with alcohol and resided at Thirteen Steps halfway house

      where he met Robert Jennings, who also resided there for a time under the

      supervision of the Allen County drug court for manufacturing

      methamphetamine. Howard was self-employed, working part-time scrapping

      metal. Howard and Jennings worked together on a roofing project through

      Thirteen Steps, where Howard noticed that Jennings was a hard worker, and he

      offered Jennings a job scrapping metal.


[3]   The two worked together scrapping metal about four or five times over a period

      of a month and a half. On the morning of June 13, 2014, the two met at the

      scrap metal site that Howard was clearing. They left the job site to purchase

      gas, cigarettes, drinks, and to run a few errands in Columbia City. Howard was

      driving his sister’s vehicle, which he had “traded for,” but the title was still in

      his sister’s name and he did not yet have the title in his possession. Transcript

      at 299. While Howard was driving, Jennings requested that they make a stop at



      Court of Appeals of Indiana | Memorandum Decision 92A03-1504-CR-129 | May 23, 2016   Page 2 of 22
      ACE Hardware in Columbia City, and Jennings entered the store and

      purchased a bottle of lye.


[4]   An ACE Hardware employee contacted Detective William Brice of the Whitley

      County Sheriff’s Office to report the purchase. Lye is a precursor used in

      manufacturing methamphetamine, and ACE Hardware participated in Whitley

      County’s Meth Watch program which involved training by the Whitley County

      Sheriff’s Department to raise awareness about items that could be used in

      manufacturing methamphetamine. ACE Hardware employees in Whitley

      County had previously contacted area law enforcement regarding suspicious

      purchases. The employee stated to Detective Brice that a man, later identified

      as Jennings, purchased lye while another man, later identified as Howard,

      waited in the vehicle. The employee also provided Detective Brice with a

      description of the vehicle.


[5]   After Detective Brice received the employee’s report, he drove towards the

      ACE Hardware, observed the vehicle, and began following it. Detective Brice

      noticed that the vehicle “went a long way out of the way,” and appeared to

      make “a big circle or big loop” before arriving at its eventual destination,

      Walmart. Id. at 146-147. When they arrived, Jennings entered the Walmart,

      purchased drain opener and lighter fluid, and returned to the vehicle. Howard

      then entered the Walmart and at Jennings’s request purchased “Wal-fed,” a

      generic form of pseudoephedrine, and returned to the vehicle. Id. at 182. As

      Howard left the store and was returning to the vehicle, Jennings went back

      inside the Walmart but did not purchase anything. At that point, Detective

      Court of Appeals of Indiana | Memorandum Decision 92A03-1504-CR-129 | May 23, 2016   Page 3 of 22
      Brice, who had been observing the two men, became aware that Howard and

      Jennings had at least two precursors, lye and pseudoephedrine, and requested

      that other law enforcement officers initiate a traffic stop when the vehicle drove

      away. When Jennings returned to the vehicle, the two men sat in the parking

      lot for a short time before driving away.


[6]   Meanwhile, Detective Brice ran the vehicle’s license plate and observed that the

      plate belonged to Howard but was not registered to the vehicle, which raised

      “another red flag.” Id. at 150. Deputy Scott Schmitt initiated a traffic stop,

      which was recorded on his dashboard camera, approached the vehicle and

      inquired as to why the license plate did not match the plate listed for the

      vehicle, and Howard told him that his sister had recently purchased the vehicle

      and that he had placed his license plate on it. Deputy Schmitt asked Howard to

      step out of the vehicle, and when asked if he knew what precursors are, Howard

      responded affirmatively. Detective Brice arrived at the scene and spoke with

      Howard about conducting a search of the vehicle, and read him a Pirtle1

      warning. Because the vehicle belonged to his sister, Howard asked Detective

      Brice if he could consent, and Detective Brice told him that he could. Howard

      asked what would happen if he did not consent, and Detective Brice stated that

      he would seek a search warrant. Howard consented to the search and again

      stated to Detective Brice that he knew what precursors are.




      1
          Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975).


      Court of Appeals of Indiana | Memorandum Decision 92A03-1504-CR-129 | May 23, 2016   Page 4 of 22
[7]   Detective Brice and two other officers then proceeded to search the vehicle,

      which revealed a one-pound jar of sodium hydroxide, liquid lightening drain

      opener, which contained hydrochloric acid, and two eight-fluid-ounce bottles of

      lighter fluid. The officers also discovered receipts, dated June 13, 2014, for the

      items purchased from ACE Hardware and Walmart, as well as a cooler

      containing beer and plastic bottles. Fifteen tablets of pseudoephedrine were

      found in Jennings’s pockets. Detective Brice observed that ammonium nitrate,

      salt, and lithium were the only items missing for the two men to be able to

      manufacture methamphetamine, and he indicated that he was not aware of any

      other purpose for which the items found at the search could be used

      collectively.


[8]   Detective Brice arrested both men and took them to the Whitley County jail

      where both were interviewed. During Howard’s interview he told Detective

      Brice that, after Jennings first entered the Walmart, he returned to the vehicle

      and asked Howard if he would buy a “box of Wal-fed” which Howard

      purchased for Jennings, and when Howard returned to the vehicle, Jennings

      began “busting the pills out.” Id. at 182, 185. Jennings removed fifteen pills

      from the package, which were recovered on Jennings’s person, but the package

      itself was not found.


[9]   On June 16, 2014, the State charged Howard with Count I, possession of two or

      more chemical reagents or precursors with the intent to manufacture

      methamphetamine as a class D felony, and Count II, maintaining a common



      Court of Appeals of Indiana | Memorandum Decision 92A03-1504-CR-129 | May 23, 2016   Page 5 of 22
       nuisance as a class D felony.2 At a hearing on March 2, 2015, the State sought

       to dismiss Count II, and the court granted the State’s motion.


[10]   A two-day jury trial began on March 4, 2015. The State offered into evidence

       the video recording of Howard’s interview with Detective Brice. Howard’s

       counsel objected, stating, “I would have no[] objection to the, to the interview

       it’s self [sic] judge, although there are portions which are at issue.” Id. at 174.

       The court played the exhibit to the jury, and in the course of the interview

       Howard indicated that he had not had any prior drug charges, that he had

       “never used Meth,” and he acknowledged that he used marijuana “[e]very once

       in a while” for back pain. Id. at 187. While the State was playing Howard’s

       interview with Detective Brice, Howard’s counsel requested a sidebar but did

       not contemporaneously object when Howard first acknowledged using

       marijuana. At the sidebar the following exchanged occurred3:


                [Howard’s Counsel]: I believe[] the State might try to introduce
                the portion of the videotaped statement in which Howard
                indicated he smoked marijuana, despite his earlier objection to
                the presentation of such evidence. I’m going to object to that.




       2
        On the same day, Howard also received a complaint and summons for lacking a valid motor vehicle license
       as a class C infraction as well as for operating a motor vehicle with a fictitious registration number as a class
       C infraction.
       3
         In an order granting Howard’s motion to stay, file-stamped August 28, 2015 and entered in this Court’s
       docket on August 31, 2015, this Court ordered Howard to file a Statement of Evidence pursuant to Appellate
       Rule 31(A). The trial court certified Howard’s Statement of Evidence on October 27, 2015. Where
       Howard’s Statement of Evidence contains material supplementing inaudible or unintelligible portions of the
       transcript, citation will be made to both the transcript and the Statement of Evidence.

       Court of Appeals of Indiana | Memorandum Decision 92A03-1504-CR-129 | May 23, 2016                  Page 6 of 22
               [Prosecutor]: He’s going to testify (inaudible) he’s told the jury in
               a little bit that he’s going to testify. I think I should be allowed to
               explore anything that has to do with his memory and his ability
               to recollect events. So I think I can play it. It is uncharged
               misconduct but not for purposes of proving character
               (unintelligible).


               [Howard’s Counsel]: But the problem is that he doesn’t just say I
               smoked that day. It’s a disclosure that I do it all the time. And I
               think it is prejudicial.


               [The Court]: [W]hat I’m going to do [is] allow admission of the
               evidence of Howard’s statement that he had smoked marijuana
               for purposes of showing Howard’s state of mind but not for
               purposes of challenging his character.


       Transcript at 191; Appellant’s Appendix at 156. The State then recalled

       Detective Brice for further questioning.


[11]   On cross-examination of Detective Brice, the following exchange occurred:

               Q: Wouldn’t you agree that [Howard] appeared to be pretty
               calm? At that point in time?


               A: I, don’t know how to answer that. I mean, he wasn’t out of
               control. If that’s, he seemed very nervous to me. But that’s,
               that’s my impression.


               Q: And would that be something we would have seen on the
               video?


               A: Yes.



       Court of Appeals of Indiana | Memorandum Decision 92A03-1504-CR-129 | May 23, 2016   Page 7 of 22
                                               *****


        Q: So you guys ended up, you went back to the Sheriff’s
        Department and he did engage with you and give a voluntary
        statement?


        A: Yes.


        Q: And you also interviewed Mr. Jennings?


        A: Yes.


                                              *****

        Q: Did Mr. Jennings appear to you to be nervous, either at the
        scene of the arrest or in the jail as your statement?


        A: I didn’t have much contact with him at the scene. Um, and
        I’d have to answer yes of, he seemed nervous when I was
        interviewing him.


        Q: Would it be fair to say (unintelligible)?


        A. I don’t recall. But yes. I would say, in my mind he seemed
        nervous and that’s one of the things that I think of as nervous.


                                              *****


        Q: I guess what I’m asking you detective is if you could expand
        a little bit on what you said that, he did appear to be in your
        mind to some degree acting nervous? Can, can you describe
        what you saw that would bring you to that conclusion?



Court of Appeals of Indiana | Memorandum Decision 92A03-1504-CR-129 | May 23, 2016   Page 8 of 22
               A: I have a lot of opportunity to interview a lot of people in my
               job and a lot of people that are using drugs especially
               Methamphetamine and in questioning Mr. Jennings in our
               interview. He just seemed to be, I’ve got precursors in the
               vehicle, and I’ve got two people. One of them did it? Or two of
               them did it. I don’t know which. I’m trying to get to the bottom
               of it. So when I’m asking pointed questions, people seem to get
               nervous and shuffle in there [sic] seat a little bit. And I noticed
               that with Mr. Jennings.


               Q: I really only have a couple other questions for you detective.
               Based on your, what you have personally witnessed yourself,
               your own personal knowledge, it, the only thing that you, you
               found these items here and I understand it, but did you ever
               witness [Howard] be in possession or purchase any of these
               items, other than the pseudoephed, did you see him purchase
               these other items that were in question?


               A: No. Just the pseduoephed.


       Transcript at 207-210.


[12]   During the State’s redirect examination of Detective Brice, the prosecutor

       requested a sidebar, and the following exchange occurred:

               [Prosecutor]: The last thing, I think, the last thing that I want to
               get into, [Howard’s Counsel] brought it up, on (unintelligible), I
               think it’s a fair game now for me is he compared and contrasted
               Jennings’ nervousness with Howard’s calmness. I want to ask
               about the marijuana, if (unintelligible) for his demeanor.
               Because [Howard’s Counsel] used that as a way to say, my guy’s
               calm. He’s innocent, this guy’s guilty. He’s (unintelligible).
               He’s nervous. He’s used that. So, in my idea judge he’s opened
               the door to whether or not there was some evident [sic] behind
               that calmness.
       Court of Appeals of Indiana | Memorandum Decision 92A03-1504-CR-129 | May 23, 2016   Page 9 of 22
        [Howard’s Counsel]: [T]he prejudicial impact of introduction of
        Howard’s drug usage exceed[s] its probative value. [T]his [is] a
        drug case and [] exposing the jury to Howard’s admission to
        illegal drug use would prejudice the jury against him.


         [Prosecutor]: I agree. He did not. (Unintelligible) Jennings, on
        Jennings point of view, made specific reference with the fact that
        Howard was calm, very calm. And the evidence from the video
        is that he had smoked marijuana, (unintelligible) prior to this
        event.


        [Howard’s Counsel]: (Unintelligible).


        Court: Okay. Okay. I’m going to let (unintelligible) that he did
        point out the nervousness, talked about that and the use of
        marijuana can contribute to that, calmness, so, uh the portion of
        Howard’s videotaped statement to police in which he admitted
        smoking marijuana but only for the limited purpose of explaining
        Howard’s alleged calmness after his arrest. Okay.


Transcript at 212; Appellant’s Appendix at 157. Following the sidebar, and on

the State’s redirect, the following exchange occurred:

        Q: Detective, [Howard’s Counsel] asked you several questions
        about, or compared for a lack of better term, Mr. Jennings[‘s]
        demeanor with that of the defendant. And I believe you testified
        that Mr. Jennings appeared nervous and fidgety. Is that right?


        A: Yes.


        Q: In the interview?


        A: Yes.

Court of Appeals of Indiana | Memorandum Decision 92A03-1504-CR-129 | May 23, 2016   Page 10 of 22
               Q: Okay. And that, and that, and that contrast Mr. Howard
               appeared to somewhat calmer in the interview. Is that fair to
               say?


               A: In the interview, yes.


               Q: Okay. Um and during the course of that interview
               specifically to his level of calmness, did you ask him later in that
               interview whether there was, whether he had, had anything that
               day? Whether he consumed anything that day?


               A: Yes I did. Yes I believe [he] did.


               Q: And what was that?


               A: I think he used marijuana that day.


               Q: That was the defendant’s statement to you?


               A: Yes.


       Transcript at 212-213.


[13]   Jennings testified that he did not tell Howard that he had purchased lye at ACE

       Hardware, that he did not show Howard the lye he purchased, that he tried to

       hide it from Howard when he returned to the vehicle, and that after leaving

       ACE Hardware Howard “just drove to Wal-Mart” Id. at 234. Jennings stated

       that he went into Walmart and purchased drain opener and lighter fluid and

       indicated that he did not tell or show Howard what he bought, and he then

       asked Howard to buy him some “Claritin.” Id. at 238. He further testified that

       Court of Appeals of Indiana | Memorandum Decision 92A03-1504-CR-129 | May 23, 2016   Page 11 of 22
       when Howard called him to tell him that Walmart did not have the brand

       Jennings requested, he walked back into the store and “felt kind of nervous” but

       he was also “kind of excited” because he thought he had acquired the items he

       needed to manufacture methamphetamine. Id. at 240. Jennings indicated that

       it was his intention to make methamphetamine for himself, and that he did not

       plan to sell it. He further stated that he did not discuss with Howard prior to

       their purchasing the items that he was planning to manufacture

       methamphetamine and that he took full responsibility for the items found in

       Howard’s vehicle. Jennings also acknowledged that during his interview with

       Detective Brice he initially blamed Howard, and that, during his guilty plea, he

       pled guilty to possession of precursors with the intent to manufacture

       methamphetamine with Howard.


[14]   Howard testified that he studied “extensively” about chemicals in a vocational

       course in horticulture he completed at Rhend Lake Community College. Id. at

       272. He stated that he had never been to ACE Hardware or Walmart prior to

       the date he was arrested, and that he was not familiar with the route to go from

       ACE Hardware to Walmart. He acknowledged that he was aware Jennings

       was drug tested while at Thirteen Steps and that Jennings’s drug of choice was

       methamphetamine, but he did not specifically know why Jennings was in drug

       court. He testified that he was on the phone when Jennings went into ACE

       Hardware, that he did not see what was in the bag when Jennings returned to

       the vehicle, but that it “looked like a bottle” and he “didn’t know what it was.”

       Id. at 288. He indicated that Jennings did not tell him what he was buying or


       Court of Appeals of Indiana | Memorandum Decision 92A03-1504-CR-129 | May 23, 2016   Page 12 of 22
       doing at Walmart, that Jennings returned with a bag, that he did not see what

       was in the bag, that Jennings placed the bag behind the seat on the passenger

       side, and that Jennings asked him to pick up some “cold pills,” specifically,

       “Wal-fed.” Id. at 294-295.


[15]   The jury found Howard guilty of possession of two or more chemical reagents

       or precursors with intent to manufacture methamphetamine. The court

       sentenced him to two years imprisonment with 284 days credit for time served,

       consecutive to any sentence he received on pending federal charges.


                                                   Discussion

                                                         I.


[16]   The first issue is whether the trial court abused its discretion when it admitted

       certain evidence of Howard’s marijuana use on the day of the offense.

       Generally, we review the trial court’s ruling on the admission or exclusion of

       evidence for an abuse of discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind.

       1997), reh’g denied. We reverse only where the decision is clearly against the

       logic and effect of the facts and circumstances. Joyner v. State, 678 N.E.2d 386,

       390 (Ind. 1997), reh’g denied. We will not reverse an error in the admission of

       evidence if the error was harmless. Turner v. State, 953 N.E.2d 1039, 1058 (Ind.

       2011). Errors in the admission of evidence are to be disregarded unless they

       affect the defendant’s substantial rights. Id. at 1059. In determining the effect

       of the evidentiary ruling on a defendant’s substantial rights, we look to the

       probable effect on the fact-finder. Id. The improper admission is harmless error

       Court of Appeals of Indiana | Memorandum Decision 92A03-1504-CR-129 | May 23, 2016   Page 13 of 22
       if the conviction is supported by substantial independent evidence of guilt

       satisfying the reviewing court that there is no substantial likelihood the

       challenged evidence contributed to the conviction. Id. Failure to timely object

       to the erroneous admission of evidence at trial will procedurally foreclose the

       raising of such error on appeal unless the admission constitutes fundamental

       error. Stephenson v. State, 29 N.E.2d 111, 118 (Ind. 2015).


[17]   Howard argues that the trial court abused its discretion by admitting evidence

       of his statement to Detective Brice that he had used marijuana on the day of the

       alleged offense, and that evidence of his statement regarding his marijuana use

       was inadmissible under Indiana Evidence Rule 404(b). He further argues that

       he did not open the door to evidence of his marijuana use, and, even if it was

       admissible under Indiana Evidence Rule 404(b), the statement would be

       inadmissible because its probative value was substantially outweighed by the

       risk of unfair prejudice.


[18]   The State argues that Howard “opened the door” on cross-examination when

       he “attempted to compare and contrast his own alleged calmness with

       Jennings’s alleged nervousness during their interactions with law enforcement.”

       Appellee’s Brief at 14-15. Alternatively, the State argues that the admission of

       Howard’s marijuana use was harmless error, noting that the jury was already

       aware of his marijuana use and that independent evidence of his guilt existed.


[19]   Indiana Rule of Evidence 404(b) constrains the admission of evidence of

       uncharged misconduct and provides:


       Court of Appeals of Indiana | Memorandum Decision 92A03-1504-CR-129 | May 23, 2016   Page 14 of 22
        Crimes, Wrongs, or Other Acts.


                (1) Prohibited Uses. Evidence of a crime, wrong, or other
                act is not admissible to prove a person’s character in order
                to show that on a particular occasion the person acted in
                accordance with the character.


                (2) Permitted Uses; Notice in a Criminal Case. This
                evidence may be admissible for another purpose, such as
                proving motive, opportunity, intent, preparation, plan,
                knowledge, identity, absence of mistake, or lack of
                accident.


The rule is “designed to prevent the jury from assessing a defendant’s present

guilt on the basis of his past propensities.” Hicks v. State, 690 N.E.2d 215, 218

(Ind. 1997). In determining whether to admit evidence of specific acts under

the rule, the trial court is to: (1) determine whether the evidence of other crimes,

wrongs, or acts is relevant to a matter at issue other than the defendant’s

propensity to commit the charged act; (2) determine that the proponent has

sufficient proof that the person who allegedly committed the act did, in fact,

commit the act; and (3) balance the probative value of the evidence against its

prejudicial effect pursuant to Indiana Evidence Rule 403. Camm v. State, 908

N.E.2d 215, 223 (Ind. 2009), reh’g denied. Additionally, otherwise inadmissible

evidence may become admissible where the defendant “opens the door” to

questioning on that evidence. Jackson v. State, 728 N.E.2d 147, 152 (Ind. 2000).

However, “the evidence relied upon to ‘open the door’ must leave the trier of

fact with a false or misleading impression of the facts related.” Id.


Court of Appeals of Indiana | Memorandum Decision 92A03-1504-CR-129 | May 23, 2016   Page 15 of 22
[20]   Here, we need not decide whether the trial court abused its discretion in

       admitting the portion of Detective Brice’s testimony challenged by Howard

       because any error in the admission of evidence concerning Howard’s marijuana

       use was harmless. The jury previously heard Howard acknowledge in his

       interview with Detective Brice that he had used marijuana, “[e]very once in a

       while” for back pain. Transcript at 187. Howard did not contemporaneously

       or specifically object when his previous use of marijuana was initially

       mentioned, does not argue on appeal that the admission of evidence constituted

       fundamental error, and his arguments on appeal merely concern his subsequent

       objections to the admission of his use of marijuana on the day of the offense. 4

       Further, as set forth in part II below, there was substantial evidence in the

       record of Howard’s guilt to support his conviction, and the probable impact on

       the jury of his marijuana use on the day of the offense was sufficiently minor so

       as not to affect his substantial rights. Accordingly, we conclude that any error

       was at worst harmless error. See Ortiz v. State, 741 N.E.2d 1203, 1208 (Ind. Ct.

       App. 2001) (holding that the admission of evidence of defendant’s prior bad

       acts was harmless error where defendant’s conviction was supported by

       substantial independent evidence of guilt); Daniels v. State, 683 N.E.2d 557, 559

       (Ind. 1997) (explaining that the admission of otherwise prejudicial evidence was




       4
         We observe that Howard’s statement that he used marijuana “[e]very once in a while” appears on page 187
       of the transcript, and he did not object until page 191 when his counsel stated, “I believe[] the State might try
       to introduce the portion of the videotaped statement in which Howard indicated he smoked marijuana,
       despite his earlier objection to the presentation of such evidence. I’m going to object to that.” Transcript at
       187, 191; Appellant’s Appendix at 156. To the extent he references a prior objection in the statement of
       evidence, he does not point to the prior objection in the record.

       Court of Appeals of Indiana | Memorandum Decision 92A03-1504-CR-129 | May 23, 2016                 Page 16 of 22
       “harmless in light of the other evidence clearly establishing the defendant’s

       guilt”).


                                                        II.


[21]   The next issue is whether the evidence is sufficient to sustain Howard’s

       conviction for possession of two or more chemical reagents or precursors with

       intent to manufacture methamphetamine as a class D felony. When reviewing

       claims of insufficiency of the evidence, we do not reweigh the evidence or judge

       the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995),

       reh’g denied. Rather, we look to the evidence and the reasonable inferences

       therefrom that support the verdict. Id. We will affirm the conviction if there

       exists evidence of probative value from which a reasonable trier of fact could

       find the defendant guilty beyond a reasonable doubt. Id.


[22]   The offense of possession of two or more chemical reagents or precursors with

       intent to manufacture methamphetamine as a class D felony is governed by Ind.

       Code § 35-48-4-14.5(e), which at the time of the offense, provided that “[a]

       person who possesses two (2) or more chemical reagents or precursors with the

       intent to manufacture a controlled substance commits a Class D felony.”

       (Subsequently amended by Pub. L. No. 158-2013, § 643 (eff. July 1, 2014); Pub.

       L. No. 168-2014, § 105 (eff. July 1, 2014)). The charging information provided

       that Howard “did knowingly possess two (2) or more chemical reagents or

       precursors with the intent to manufacture Methamphetamine, a schedule II

       controlled substance.” Appellant’s Appendix at 22. Thus, the State was


       Court of Appeals of Indiana | Memorandum Decision 92A03-1504-CR-129 | May 23, 2016   Page 17 of 22
       required to prove that Howard (1) knowingly; (2) possessed two or more

       chemical reagents or precursors; and (3) that he had the intent to manufacture

       methamphetamine.


[23]   It is well-established that possession of an item may be either actual or

       constructive. See Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997), modified

       on reh’g, 685 N.E.2d 698 (Ind. 1997). Constructive possession occurs when a

       person has: (1) the capability to maintain dominion and control over the item;

       and (2) the intent to maintain dominion and control over it. Id. The capability

       element of constructive possession is met when the State shows that the

       defendant is able to reduce the contraband to the defendant’s personal

       possession. Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999). Additionally, “[a]

       trier of fact may infer that a defendant had the capability to maintain dominion

       and control over contraband from the simple fact that the defendant had a

       possessory interest in the premises on which an officer found the item.” Gray v.

       State, 957 N.E.2d 171, 174 (Ind. 2011). See also Goliday, 708 N.E.2d at 6

       (explaining that “[p]roof of a possessory interest in the premises in which the

       illegal drugs are found is adequate to show the capability to maintain control

       and dominion over the items in question”) (quoting Davenport v. State, 464

       N.E.2d 1302, 1307 (Ind. 1984), cert. denied, 469 U.S. 1043, 105 S. Ct. 529

       (1984)).


[24]   The intent element of constructive possession is shown if the State demonstrates

       the defendant’s knowledge of the presence of the contraband. Goliday, 708

       N.E.2d at 6. A defendant’s knowledge may be inferred from either the

       Court of Appeals of Indiana | Memorandum Decision 92A03-1504-CR-129 | May 23, 2016   Page 18 of 22
       exclusive dominion and control over the premises containing the contraband,

       or, if the control is non-exclusive, evidence of additional circumstances pointing

       to the defendant’s knowledge of the presence of contraband. Id. These

       additional circumstances may include: “(1) a defendant’s incriminating

       statements; (2) a defendant’s attempting to leave or making furtive gestures; (3)

       the location of contraband[-]like drugs in settings suggesting manufacturing; (4)

       the item’s proximity to the defendant; (5) the location of contraband within the

       defendant’s plain view; and (6) the mingling of contraband with other items the

       defendant owns.” Gray, 957 N.E.2d at 175. The State is not required to prove

       all additional circumstances when showing that a defendant had the intent to

       maintain dominion and control over contraband. See Gee v. State, 810 N.E.2d

       338, 344 (Ind. 2004) (explaining that the additional circumstances “are not

       exclusive” and that “the State is required to show that whatever factor or set of

       factors it relies upon in support of the intent prong of constructive possession,

       those factors or set of factors must demonstrate the probability that the

       defendant was aware of the presence of the contraband and its illegal

       character”).


[25]   Howard acknowledges that the State produced evidence of lye drain cleaner

       containing sodium hydroxide; liquid lightening drain opener containing

       hydrochloric acid; two eight-ounce containers of lighter fluid, a solvent; and

       pseudoephedrine tablets; but asserts that it failed to prove that he had “the

       intent and capability to maintain dominion and control” over the precursors

       found during the search and on Jennings’s person. Appellant’s Brief at 20. He


       Court of Appeals of Indiana | Memorandum Decision 92A03-1504-CR-129 | May 23, 2016   Page 19 of 22
       maintains that the precursors were not within his control in the vehicle, that he

       lacked knowledge of the presence of precursors other than the pseudoephedrine

       tablets, that Jennings testified he used deception to acquire the precursors and

       Howard was unaware of Jennings’s intent to manufacture methamphetamine,

       and that Jennings testified that it was his intent alone, not shared with Howard,

       to manufacture methamphetamine.


[26]   The State argues the evidence is sufficient to sustain Howard’s conviction and

       notes that Howard conceded that the vehicle contained lye, lighter fluid, drain

       opener, and pseudoephedrine. It argues Howard constructively possessed the

       precursors, noting that they were found in the vehicle he was driving, that he

       knew pseudoephedrine was a precursor, and that the precursors were all found

       in close proximity to him and that his arguments on appeal are a request for this

       Court to reweigh the evidence.


[27]   The facts most favorable to the conviction show that Howard, though lacking

       physical possession of the vehicle’s title, was the driver of the vehicle and had a

       possessory interest in it, and that lye drain cleaner, which contained sodium

       hydroxide; liquid lightening drain opener, which contained hydrochloric acid;

       two eight-ounce containers of lighter fluid, which is a solvent; and

       pseudoephedrine tablets, were all found in the vehicle. Howard’s possessory

       interest in the vehicle demonstrates his capability to maintain dominion and

       control over the contraband therein. As he was not in exclusive possession of

       the vehicle at the time of the offense, we must look to evidence of additional

       circumstances pointing to his knowledge of the presence of contraband. The

       Court of Appeals of Indiana | Memorandum Decision 92A03-1504-CR-129 | May 23, 2016   Page 20 of 22
       record reveals that Howard drove Jennings to ACE Hardware where Jennings

       purchased a bottle of lye, Howard testified that he observed Jennings with what

       “looked like a bottle”, and they then drove “a long way out of the way” and

       appeared to make “a big circle or big loop” before driving to Walmart, where

       Jennings first entered the store and purchased drain opener and lighter fluid.

       Transcript at 288, 146-147. Howard then entered the store and purchased cold

       medicine, which contains pseudoephedrine, for Jennings, who could not

       purchase the product due to his being in Drug Court, and Howard was aware

       that Jennings was drug tested. After driving away from the Walmart parking

       lot, when law enforcement stopped the vehicle to perform a search, Howard

       twice stated that he knew what precursors were. From this evidence, the jury

       could have reasonably determined that Howard had the intent to maintain

       dominion and control over the contraband and that he constructively possessed

       it. See Woods v. State, 640 N.E.2d 1089, 1091 (Ind. Ct. App. 1994) (explaining

       that “[c]onstructive possession of items found in a vehicle may be imputed to

       the driver of the vehicle” and affirming the defendant’s possession of cocaine

       conviction where he was driving and the drugs were found under his seat).


[28]   As to Howard’s intent to manufacture methamphetamine, intent is a mental

       function, and the jury may rely upon “an examination of the surrounding

       circumstances to determine whether, from the person’s conduct and the natural

       consequences of what might be expected from that conduct, a showing or

       inference of the intent to commit that conduct exists.” Tapely v. State, 886

       N.E.2d 61, 64 (Ind. Ct. App. 2008) (citing West v. State, 805 N.E.2d 909, 915


       Court of Appeals of Indiana | Memorandum Decision 92A03-1504-CR-129 | May 23, 2016   Page 21 of 22
       (Ind. Ct. App. 2004), trans. denied), trans. denied. Detective Brice testified that he

       was not aware of any other purpose for which the items found could be used

       collectively, and that ammonium nitrate, salt, and lithium were the only items

       missing for the two men to be able to manufacture methamphetamine. Howard

       also testified that he studied “extensively” about chemicals in community

       college coursework that he had completed. Id. at 272. The jury had sufficient

       evidence before it from which it could determine that Howard had the intent to

       manufacture methamphetamine.


[29]   Based upon the record, we conclude that the State presented evidence of a

       probative nature from which a reasonable trier of fact could have found

       Howard guilty beyond a reasonable doubt of possession of two or more

       chemical reagents or precursors with intent to manufacture methamphetamine

       as a class D felony. Howard’s arguments to the contrary are an invitation to

       reweigh the evidence, which we decline to do.


                                                   Conclusion

[30]   For the foregoing reasons, we affirm Howard’s conviction for possession of two

       or more chemical reagents or precursors with intent to manufacture

       methamphetamine as a class D felony.


[31]   Affirmed.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 92A03-1504-CR-129 | May 23, 2016   Page 22 of 22
