Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                               FILED
any court except for the purpose of                          Jan 29 2013, 9:05 am

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




ATTORNEYS FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

WILLIAM S. FRANKEL, IV                             GREGORY F. ZOELLER
DAVID P. FRIEDRICH                                 Attorney General of Indiana
Terre Haute, Indiana
                                                   RICHARD C. WEBSTER
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JEFFREY A. BOOTH,                                  )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 84A01-1203-CR-118
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                       APPEAL FROM THE VIGO SUPERIOR COURT
                           The Honorable David R. Bolk, Judge
                             Cause No. 84D03-1103-FB-782


                                        January 29, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                  STATEMENT OF THE CASE

          Jeffrey A. Booth (“Booth”) appeals his conviction, following a jury trial, for Class

B felony dealing in methamphetamine1 and Class D felony possession of

methamphetamine.2

          We affirm.

                                              ISSUE

                     Whether sufficient evidence supports Booth’s convictions.

                                             FACTS

          On March 9, 2011, around 12:30 a.m., Terre Haute Police Officer Gregory

Mossbarger (“Officer Mossbarger”) and Officer John Perillo (“Officer Perillo”) were

dispatched to 1425 South 6th Street in Terre Haute to investigate a possible

methamphetamine lab. After the officers approached the garage from the alley and

smelled an odor that they knew was associated with a methamphetamine lab, they called

for further assistance.

          Shortly thereafter, Sergeant Harold Seifers (“Sergeant Seifers”) arrived at the

scene.        As he approached from the alley, Sergeant Seifers also detected the

methamphetamine-related odor, which got stronger as he neared the garage. As the

officers stood outside the garage, they heard music and people talking inside the garage

and saw light from the cracks around the garage door.




1
    Ind. Code § 35-48-4-1.1(a).
2
    I.C. § 35-48-4-6.1.
                                                2
          The side garage door then opened, releasing a “real strong” odor from the garage,

and Booth walked out with a cigarette and a lighter in his hand. (Tr. 235). When Booth

saw the officers, he appeared “real surprised” and then “shut the door behind him real

fast.” (Tr. 226). Sergeant Seifers grabbed Booth, stopped him from lighting his cigarette

and asked him why he was there and if anyone else was inside the garage. Booth

responded that he was there working on a car and that there was someone else in there.

Sergeant Seifers had Booth knock on the door, and Robert Fennell (“Fennell”) opened the

door and walked out. The officers then took Booth and Fennell into custody.

          Sergeant Seifers and Officer Perillo then went inside the garage, where the “very,

very, very strong” odor from inside made their eyes burn and required them to hold their

breath.      (Tr. 242).    The officers saw items associated with methamphetamine

manufacturing and, fearing an explosion, opened the main garage door to air out the

space. Sergeant Seifers asked Booth and Fennell who had the key to the garage, and

Booth responded that he did. Sergeant Seifers retrieved the key from Booth’s pocket,

opened the garage door, and called the Drug Task Force to report the methamphetamine

lab.

          Detective Denzil Lewis (“Detective Lewis”) and Detective Jason Parker

(“Detective Parker”) of the Drug Task Force then arrived at the scene and briefly walked

through the garage. Detective Parker then called Indiana State Police Trooper Jason

Kempf (“Trooper Kempf”) to process the methamphetamine lab because “it was a lot

larger than [the detectives] could handle.” (Tr. 341).



                                              3
       Trooper Kempf arrived around 3:00 a.m. to process the methamphetamine lab in

the garage. When he arrived, he could “still smell the odor of anhydrous ammonia” used

in the methamphetamine manufacturing process. (Tr. 259). There was a car in the

garage, but there were no fluids on the floor to indicate that someone had worked on a

car.   Instead, Trooper Kempf observed items used in the various stages of

methamphetamine production, including the presence of: (1) anhydrous ammonia that

was in a Coleman fuel container; (2) “pill dough” or ground up pseudoephedrine pills that

were soaking in the anhydrous ammonia to extract the pseudoephedrine to convert to

methamphetamine, (Tr. 267); (3) a wooden spoon or “stir stick” to stir the pill dough, (Tr.

307); (4) a Mountain Dew bottle with a tube sticking out of it that was used as a

hydrochloric (“HCL”) gas generator and that was continuing to produce HCL gas; (5) salt

and Liquid Fire to use in the HCL generator; (6) a pitcher containing methamphetamine

and “waiting for the stage of being gassed off” in the HCL generator, (Tr. 275); and (7) a

pitcher with a coffee filter containing a finished methamphetamine product. Trooper

Kempf also observed a Crock pot in the garage.

       Detective Lewis obtained a written consent to search the garage from Booth.

Detective Lewis also interviewed Booth at the scene and made an audio recording of the

interview. Booth told Detective Lewis that he did not live there but that he had gotten the

key to the garage from Jeremy Gibson (“Gibson”) so he could work on Gibson’s car.

Booth said that Gibson wanted him to remove the old radiator and old sway bar arm and

replace them with a new radiator and new sway bar arm. Booth told Detective Lewis that

he arrived at the garage at 7:30 p.m. and that Fennell arrived at 8:00 p.m. In response to

                                            4
the detective’s question of what Fennell did when he arrived, Booth responded that

Fennell “put the pill trash in a pitcher[,]” (State’s Ex. 1; Tr. 351); “poured some

Coleman’s on it and then put it in the Crock pot[,]” (State’s Ex. 1; Tr. 353); turned on the

Crock pot; and then left for about an hour. (State’s Ex. 1; Tr. 351). Detective Lewis

asked Booth if it smelled when Fennel did that, and Booth stated that it smelled like

“[a]nhydrous.” (State’s Ex. 1; Tr. 352). When the detective asked Booth how the HCL

generator got to the garage, Booth appeared confused by the term generator. Detective

Lewis rephrased the question to ask about the device that was used with “[t]he drain

cleaner and the salt . . . pour[ed] . . . in there” and that was used to “smoke the dope,” and

Booth responded, “Oh, um, that’s, he usually has that in there under that bench.” (State’s

Ex. 1; Tr. 354). Booth stated that upon Fennell’s return to the garage, Fennell took the

pitcher out of the Crock pot and then took another pitcher and “ran it through a filter.”

(State’s Ex. 1; Tr. 355). When asked if Fennell “g[o]t any product, Booth indicated that

it “looked like he did.” (State’s Ex. 1; Tr. 355). Finally, Booth admitted to Detective

Lewis that he and Fennell had smoked some methamphetamine while they were in the

garage but stated that the methamphetamine “was some that was already done.” (State’s

Ex. 1; Tr. 356).

       The State charged Booth with: Count 1, Class B felony dealing in

methamphetamine (by manufacturing); Count 2, Class D felony possession of chemical

reagents or precursors with intent to manufacture a controlled substance; and Count 3,

Class D felony possession of methamphetamine.



                                              5
      On February 7-8, 2012, the trial court held a jury trial. With regard to the dealing

charge, the State proceeded under the theory that Booth either manufactured the

methamphetamine or aided Fennell in the manufacturing process. The State tendered,

without objection from Booth, an instruction on accomplice liability for the dealing in

methamphetamine charge. The trial court accepted the instruction and instructed the jury

that it could find Booth guilty of dealing in methamphetamine if it found that he aided

Fennell to commit the offense. The jury found Booth guilty of Count 1 and 3 but not

guilty of Count 2. The trial court imposed a fourteen (14) year sentence for Booth’s

dealing conviction and a two (2) year sentence for his possession conviction. The trial

court ordered that the sentences be served concurrently and executed at the Department

of Correction.

                                      DECISION

      Booth argues that the evidence was insufficient to support his convictions for: (a)

dealing in methamphetamine; and (b) possession of methamphetamine.

      When reviewing the sufficiency of the evidence to support a conviction,
      appellate courts must consider only the probative evidence and reasonable
      inferences supporting the verdict. It is the fact-finder’s role, not that of
      appellate courts, to assess witness credibility and weigh the evidence to
      determine whether it is sufficient to support a conviction. To preserve this
      structure, when appellate courts are confronted with conflicting evidence,
      they must consider it most favorably to the trial court’s ruling. Appellate
      courts affirm the conviction unless no reasonable fact-finder could find the
      elements of the crime proven beyond a reasonable doubt. It is therefore not
      necessary that the evidence overcome every reasonable hypothesis of
      innocence. The evidence is sufficient if an inference may reasonably be
      drawn from it to support the verdict.




                                           6
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks and

citations omitted) (emphasis in original).

A. Dealing in Methamphetamine

       Booth first argues that the evidence was insufficient to support his conviction for

dealing in methamphetamine. To convict Booth of dealing in methamphetamine as

charged, the State was required to prove beyond a reasonable doubt that Booth

“knowingly manufacture[d] methamphetamine.”        (App. 10). See also Ind. Code § 35–

48–4–1.1(a) (“A person who . . . knowingly . . . manufactures . . . methamphetamine,

pure or adulterated . . . commits dealing in methamphetamine, a Class B felony[.]”).

“Manufacture” is defined as:

       the production, preparation, propagation, compounding, conversion, or
       processing of a controlled substance, 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 the substance or
       labeling or relabeling of its container.

Ind. Code § 35-48-1-18(1).

       Booth acknowledges that methamphetamine was manufactured in the garage and

that he was in the garage but argues that the evidence was insufficient to show that he

knowingly manufactured it because none of the officers saw him manufacture the

methamphetamine.       He contends that Fennell was the only person involved in

manufacturing the methamphetamine and that he was merely present in the garage

working on a car and had no involvement in the manufacturing process.




                                             7
      Here, the trial court instructed the jury, without objection from Booth, that he

could be found guilty of dealing methamphetamine under a theory of accomplice

liability. The accomplice liability statute provides that “[a] person who knowingly or

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

offense . . . .” Ind. Code § 35–41–2–4. In determining whether a person aided another in

the commission of a crime, we consider factors such as: (1) presence at the scene of the

crime; (2) companionship with another at the scene of the crime; (3) failure to oppose

commission of the crime; and (4) course of conduct before, during, and after occurrence

of the crime. Garland v. State, 788 N.E.2d 425, 431 (Ind. 2003).

      Here, the evidence reveals that, from 7:30 p.m. to around 12:30 a.m., Booth was

present in the garage where methamphetamine was clearly being manufactured. When

Booth walked out of the garage and saw police, he immediately shut the door behind him.

Booth claimed to Detective Lewis that he was in the garage only to work on a car. While

the evidence revealed that Booth’s hands were dirty and there were tools and a car in the

garage, officers testified that the tools were not lying about and there were no fluids on

the garage floor. Instead, the evidence shows that Booth was aware that Fennell was

engaged in the process of manufacturing methamphetamine. Indeed, Booth’s interview

with Detective Lewis reveals that he was aware of the stages of the manufacturing

process.   Furthermore, the evidence also reveals that Booth did not oppose the

manufacturing of the methamphetamine. To be sure, from the evidence presented, the

jury could have inferred that Booth assisted with the mixing of the pill dough. Booth

claimed that Fennell put the “pill trash” in a Crock pot and then left the garage for one

                                            8
hour. (State’s Ex. 1; Tr. 351). However, police officers testified that, at that early stage

of manufacturing, the pill dough has to be stirred or it will stick and that it cannot be left

unattended. They also testified that the pill dough in the garage did not show signs of

being unattended. Additionally, Booth admitted that he smoked methamphetamine with

Fennell while he was in the garage.

       Booth’s argument that he was merely working on his car and was “in the wrong

place at the wrong time” is nothing more than an invitation to reweigh the evidence,

which we will not do. See Drane, 867 N.E.2d at 146. Because there was probative

evidence from which the jury could have found Booth guilty beyond a reasonable doubt

of Class B felony dealing in methamphetamine, we affirm his conviction.

B. Possession of Methamphetamine

       Booth also argues that the evidence was insufficient to support his conviction for

possession of methamphetamine. To convict Booth of possession of methamphetamine

as charged, the State was required to prove beyond a reasonable doubt that Booth

“knowingly possess[ed] methamphetamine.” (App. 10). See also Ind. Code § 35–48–4-

6.1(a) (“A person who, without a valid prescription . . . , knowingly . . . possesses

methamphetamine (pure or adulterated) commits possession of methamphetamine, a

Class D felony[.]”).

       Booth was not in actual possession of the methamphetamine found in the garage;

thus, the State was required to prove that Booth had constructive possession of the

methamphetamine. Evidence of constructive possession is sufficient where the State



                                              9
proves that the defendant had intent and capability to maintain dominion and control over

the contraband. Hardister v. State, 849 N.E.2d 563, 573 (Ind. 2006).

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

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

N.E.2d 4, 6 (Ind. 1999). A defendant’s knowledge may be inferred from either the

exclusive dominion and control over the premise containing the contraband or, if the

control is non-exclusive, evidence of additional circumstances pointing to the defendant’s

knowledge of the presence of the contraband. Id. These additional circumstances may

include: (1) incriminating statements by the defendant; (2) attempted flight or furtive

gestures; (3) a drug manufacturing setting; (4) proximity of the defendant to the drugs;

(5) drugs in plain view; and (6) location of the drugs in close proximity to items owned

by the defendant. Hardister, 849 N.E.2d at 574. The capability element of constructive

possession is met when the State shows that the defendant is able to reduce the controlled

substance to the defendant’s personal possession.      Goliday, 708 N.E.2d at 6.      For

example, proof of a possessory interest in the premises where illegal drugs are found is

sufficient to show capability to maintain dominion and control over the contraband. Id.

      Here, Booth does not dispute that the garage was a drug manufacturing setting for

manufacturing methamphetamine. Indeed, the evidence reveals that the garage had the

very strong odor associated with the manufacturing of methamphetamine emanating from

it. Additionally, the evidence indicates that the garage contained the various stages of

methamphetamine manufacturing. Booth was present for five hours in the garage where

methamphetamine was manufactured. He made a furtive gesture of trying to quickly

                                           10
close the garage door when he saw the police standing outside the garage door. The

evidence also reveals that the products used to make methamphetamine, as well as

finished methamphetamine, were in plain view and in close proximity to Booth.

Furthermore, Booth’s statements to Detective Lewis were incriminating because they

revealed that Booth was aware that methamphetamine was being manufactured and

suggest that he was aware of the various steps or procedures for manufacturing

methamphetamine. Booth also made incriminating statements by admitting that he had

smoked methamphetamine while in the garage.          Given the evidence presented, we

conclude the State presented evidence of additional circumstances sufficient to prove that

Booth had the intent to maintain dominion and control over the contraband.

      The State also presented sufficient evidence on the capability element. Although

Booth did not live at the house where the garage was located, he (and not Fennell)

possessed the key to the garage. Additionally, given the close proximity of the drugs in

the garage to Booth and his furtive gesture of quickly closing the garage door when he

saw police, we conclude the State presented sufficient evidence to show that he was able

to reduce the drugs to his personal possession. See, e.g., Goliday, 708 N.E.2d at 6

(evidence was sufficient to show that the defendant, who had a key to the trunk where the

drugs were located, had the capability to maintain dominion and control over the drugs).

      The evidence is sufficient to show that Booth had the intent and capability to

maintain dominion and control over the methamphetamine. Because there was probative

evidence from which the jury could have found Booth constructively possessed the



                                           11
methamphetamine, we affirm his conviction for Class D felony possession of

methamphetamine.

      Affirmed.

ROBB, C.J., and MAY, J., concur.




                                   12
