MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be
                                                                 Oct 19 2016, 6:24 am
regarded as precedent or cited before any
court except for the purpose of establishing                          CLERK
                                                                  Indiana Supreme Court
the defense of res judicata, collateral                              Court of Appeals
                                                                       and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Tara Coats Hunt                                          Gregory F. Zoeller
Johanna D. Rippey                                        Attorney General of Indiana
Salem, Indiana
                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Leah S. Fink,                                            October 19, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         31A01-1510-CR-1704
        v.                                               Appeal from the Harrison Superior
                                                         Court
State of Indiana,                                        The Honorable Joseph L.
Appellee-Plaintiff.                                      Claypool, Judge
                                                         The Honorable Frank Newkirk,
                                                         Jr., Special Judge
                                                         Trial Court Cause No.
                                                         31D01-1108-FB-688



Altice, Judge.


                                         Case Summary


Court of Appeals of Indiana | Memorandum Decision 31A01-1510-CR-1704 | October 19, 2016   Page 1 of 13
[1]   Leah Fink appeals, on sufficiency grounds, her convictions for class B felony

      dealing in methamphetamine and class D felony possession of chemical

      reagents or precursors with intent to manufacture methamphetamine.

      Additionally, she challenges the ten-year advisory sentence imposed for her

      dealing conviction, contending that the trial court abused its discretion by

      failing to consider certain mitigating factors and that the sentence is

      inappropriate in light of her character and the nature of the offense.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On August 15, 2011, Michael Marshall, working as a confidential informant for

      the Harrison County Sheriff’s Department, participated in a controlled buy that

      was audio/video recorded. He called and arranged to purchase one gram of

      methamphetamine for $100 at Fink’s home in Corydon. Jeremy Ripperdan

      was Fink’s boyfriend at the time and often stayed at her home. Marshall knew

      both Fink and Ripperdan.


[4]   When Marshall arrived that evening, Fink answered the door and let him in.

      Marshall immediately smelled a very strong chemical odor, which he associated

      with a “shake and bake meth lab.” Transcript at 126. Ripperdan told Fink to

      send Marshall upstairs. Ripperdan met Marshall on the stairs holding an active

      meth lab. The two men went to the small upstairs area to continue with the

      manufacturing process, while Fink stayed downstairs. On two separate

      occasions Ripperdan directed Marshall to obtain necessary items from Fink.

      Court of Appeals of Indiana | Memorandum Decision 31A01-1510-CR-1704 | October 19, 2016   Page 2 of 13
      She provided Marshall with glue sticks and tubing, which were then used in the

      manufacturing process. Ripperdan and Marshall eventually came down to the

      kitchen to finish the process using the oven. Although Fink was not involved in

      the majority of the manufacturing process that evening, she was aware that it

      was occurring and was “actively involved” in providing materials for the

      process. Id. at 128. Marshall eventually left the home with a portion of the

      finished product that he obtained from Ripperdan in exchange for the $100 in

      buy money.


[5]   After the controlled buy, law enforcement sought and obtained a search

      warrant for Fink’s home. The warrant was executed in the early morning hours

      of August 16, 2011. During the execution of the warrant, officers located an

      active meth lab in a closet under the stairwell consistent with the shake-and-

      bake or one-pot method. The vessel contained organic solvents and lithium.

      Items associated with the production and use of methamphetamine were found

      throughout the small house, in an outbuilding, and in a burn bin outside the

      house. Officers found an open cold pack that contained ammonium nitrate,

      burned blister packs of pseudoephedrine, burned lithium battery remnants,

      drain opener containing sodium hydroxide, muriatic acid, plastic tubing, an

      HCL generator, coffee filters with white residue found both upstairs and in the

      bedroom, a glass pipe with white residue, and glass jars with white residue.

      Inside Fink’s purse officers found marijuana, methamphetamine, syringes, a

      straw, rolling paper, nylon rope, and scissors. Fink’s wallet also contained

      three receipts for purchases of pseudoephedrine. The two most recent


      Court of Appeals of Indiana | Memorandum Decision 31A01-1510-CR-1704 | October 19, 2016   Page 3 of 13
      purchases were about seven hours apart on the same day, August 5, 2011, at

      stores in Indiana and Kentucky.1


[6]   On August 18, 2011, the State charged Fink with seven counts: Count I, class

      B felony dealing in methamphetamine; Count II, class D felony possession of

      methamphetamine; Count III, class D felony maintaining a common nuisance;

      Count IV, class D felony possession of a hypodermic needle; Count V, class D

      felony possession of chemical reagents or precursors with the intent to

      manufacture controlled substances; Count VI, class A misdemeanor possession

      of marijuana; and, Count VII, class A misdemeanor possession of marijuana.

      After numerous continuances, Fink’s jury trial was held on August 19 and 20,

      2015. Fink acknowledged, through counsel, that she was a drug user who

      committed Counts II, III, IV, VI, and VII. Fink contested only Counts I and V,

      which involved manufacturing of methamphetamine. The jury found Fink

      guilty on all counts.


[7]   At the conclusion of the sentencing hearing on September 24, 2015, the trial

      court sentenced Fink to concurrent terms of ten years for Count I with two

      years suspended to probation, 545 days for each of Counts II through V, and

      365 days for Counts VI and VII. Thus, Fink received an aggregate sentence of




      1
        Ripperdan testified that he did not recall if Fink provided the pseudoephedrine used in this particular
      manufacturing process. National purchase logs, maintained by NPLEx, revealed that Fink regularly
      purchased (about twice a month) pseudoephedrine in the nine months prior at various locations in Indiana
      and Kentucky. Based on her training and experience, Sergeant Katrina Smith testified that these purchases,
      though legal, raise a red flag to law enforcement.

      Court of Appeals of Indiana | Memorandum Decision 31A01-1510-CR-1704 | October 19, 2016        Page 4 of 13
       ten years in prison with eight executed and two suspended to probation. Fink

       appeals her convictions on Counts I and V and the sentence imposed for Count

       I. Additional facts will be provided below as needed.


                                           Discussion & Decision


                                         Sufficiency of the Evidence


[8]    Our standard of review for sufficiency of the evidence claims is well settled.

       We consider only the probative evidence and reasonable inferences supporting

       the conviction. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not

       assess the credibility of witnesses or reweigh evidence, and we will affirm unless

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

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

       reasonable hypothesis of innocence; rather, the evidence will be found sufficient

       if an inference may reasonably be drawn from it to support the conviction. Id.

       at 147.


[9]    With respect to Count I, dealing methamphetamine, Fink argues that the State

       failed to present sufficient evidence under its theory of accomplice liability. She

       asserts that, at best, the State proved that she was present in her home while

       Ripperdan manufactured methamphetamine with her knowledge.


[10]   In relevant part, Ind. Code § 35-48-4-1.1(a)(1) provides that a person who

       knowingly or intentionally manufactures methamphetamine commits dealing in

       methamphetamine. Here, the State sought to convict Fink as an accomplice.


       Court of Appeals of Indiana | Memorandum Decision 31A01-1510-CR-1704 | October 19, 2016   Page 5 of 13
       To do so, the State needed to prove that Fink knowingly or intentionally aided

       Ripperdan in manufacturing methamphetamine. See Ind. Code § 35-41-2-4.

       There is no separate crime of being an accessory or aiding and abetting the

       perpetrator of a crime; rather a defendant may be convicted as a principal upon

       evidence that he aided or abetted in the perpetration of the charged crime.

       Sanquenetti v. State, 727 N.E.2d 437, 441 (Ind. 2000). Under Indiana law, an

       individual who aids another person in committing a crime is as guilty as the

       actual perpetrator, and one may be charged as a principal yet convicted as an

       accomplice. Id. Further, the accomplice need not participate in each and every

       element of the crime in order to be convicted of it. Vandivier v. State, 822

       N.E.2d 1047, 1054 (Ind. Ct. App. 2005), trans. denied.


[11]   Although a defendant’s presence during the commission of the crime or her

       failure to oppose the crime are, by themselves, insufficient to establish

       accomplice liability, the jury may consider them along with other facts and

       circumstances tending to show participation. Id. The jury may also consider

       the defendant’s companionship with the one engaged in the crime and the

       defendant’s actions before, during, and after the crime. Id. “In order to sustain

       a conviction as an accomplice, there must be evidence of the defendant’s

       affirmative conduct, either in the form of acts or words, from which an

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

       may reasonably be drawn.” Id.


[12]   We cannot agree with Fink that there is “no evidence of affirmative conduct by

       [her] from which an inference could be drawn that her purpose was to aid in the

       Court of Appeals of Indiana | Memorandum Decision 31A01-1510-CR-1704 | October 19, 2016   Page 6 of 13
       commission of a crime.” Appellant’s Brief at 9. The evidence favorable to the

       conviction establishes that Fink, on at least two separate occasions, provided

       materials needed for the manufacturing process that night. Specifically, she

       provided Marshall and Ripperdan with glue sticks and tubing. In addition to

       her active participation, we note that the manufacturing process took place with

       her knowledge in her home, and items used in the manufacturing process –

       glass jars and coffee filters, both containing methamphetamine residue – were

       found in her bedroom during the subsequent search. The State also presented

       evidence that Fink was a regular purchaser of pseudoephedrine, a key

       ingredient in the manufacturing process, and about a week before the instant

       crime made two purchases on the same day but in two different states. While

       the State could not affirmatively establish that these purchases were used in this

       manufacturing process, the jury could consider this evidence and determine

       what weight to give it. In light of all of the above evidence, the jury had ample

       evidence to find Fink guilty of dealing methamphetamine.


[13]   We now turn to the sufficiency of the evidence regarding Count V, possession

       of chemical reagents or precursors with intent to manufacture a controlled

       substance. The State alleged that Fink possessed ammonia nitrate, lithium

       metal, and organic solvents, all statutorily defined as chemical reagents or

       precursors. See I.C. § 35-48-4-14.5.


[14]   With regard to Count V, the State was required to prove that Fink possessed

       two or more chemical reagents or precursors with the intent to manufacture a

       controlled substance. See I.C. § 35-48-4-14.5(e). Fink acknowledges that the

       Court of Appeals of Indiana | Memorandum Decision 31A01-1510-CR-1704 | October 19, 2016   Page 7 of 13
       State presented evidence at trial that police discovered ammonium nitrate in a

       container in a garage/outbuilding, lithium metal in a burn barrel and in the

       one-pot vessel found in a closet, and organic solvent found in the one-pot

       vessel. Her sole challenge to her conviction on this count is that the State failed

       to prove that she constructively possessed these items. In this regard, she

       simply notes that she did not have exclusive control over the areas in which the

       items were found and asserts that the State failed to establish that she had actual

       knowledge of the presence of these items.


[15]   Constructive possession occurs when a person does not have direct physical

       control over the item but has “the intent and capability to maintain dominion

       and control over the item.” Massey v. State, 816 N.E.2d 979, 989 (Ind. Ct. App.

       2004) (quoting Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999)). Fink does

       not argue that she did not have the capability to maintain dominion and control

       over the precursors. Rather, her argument focuses only on intent.


[16]   To prove the intent element, the State must demonstrate the defendant’s

       knowledge of the presence of the contraband. Id. Where control over the

       premises containing the contraband is non-exclusive, knowledge may be

       inferred from evidence of additional circumstances pointing to the defendant’s

       knowledge. Id. Such additional circumstances may include: “(1) incriminating

       statements made by the defendant; (2) attempted flight or furtive gestures; (3) a

       drug manufacturing setting; (4) proximity of the defendant to the contraband;

       (5) the contraband being in plain view; and (6) the location of the contraband

       being in close proximity to items owned by the defendant.” Harrison v. State, 32

       Court of Appeals of Indiana | Memorandum Decision 31A01-1510-CR-1704 | October 19, 2016   Page 8 of 13
       N.E.3d 240, 248 (Ind. Ct. App.), trans. denied. Further, a defendant can be

       found to have jointly possessed contraband with another. Massey v. State, 816 at

       989.


[17]   The State presented evidence from which the jury could infer that Fink had

       knowledge of the presence of the precursors on her property. The record is

       replete with evidence that her home was a drug manufacturing setting and used

       as such with Fink’s knowledge and involvement. Accordingly, Fink’s slender

       sufficiency argument fails.


                                                   Sentencing


[18]   With regard to sentencing, Fink initially contends that the trial court abused its

       discretion when it failed to consider certain mitigating circumstances.

       Specifically, she asserts that the trial court failed to consider her minimal role in

       the manufacturing process, the fact that the crime was the result of

       circumstances unlikely to recur, and the fact that she had already suffered an

       extraordinary penalty in that she lost her ability to practice law.


[19]   Sentencing decisions rest within the sound discretion of the trial court and are

       reviewed on appeal for an abuse of discretion. Anglemyer v. State, 868 N.E.2d

       482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. An abuse of discretion

       occurs if the decision is clearly against the logic and effect of the facts and

       circumstances before the court, or the reasonable, probable, and actual

       deductions to be drawn therefrom. Id. One way a trial court may be found to

       have abused its discretion is by entering a sentencing statement that omits

       Court of Appeals of Indiana | Memorandum Decision 31A01-1510-CR-1704 | October 19, 2016   Page 9 of 13
       reasons clearly supported by the record and advanced for consideration. Id. at

       490-91. When claiming on appeal that the trial court failed to identify or find a

       mitigating circumstance, it is the defendant’s burden to establish that the

       mitigating evidence is both significant and clearly supported by the record. Id.

       at 493.


[20]   Because a court may impose any sentence authorized by statute “regardless of

       the presence or absence of aggravating circumstances or mitigating

       circumstances,” a trial court is no longer obligated to weigh aggravating and

       mitigating factors against each other when imposing a sentence. See Richardson

       v. State, 906 N.E.2d 241, 243 (Ind. Ct. App. 2009). If the trial court finds the

       existence of aggravating or mitigating circumstances, it must give a “statement

       of the court’s reasons for selecting the sentence that it imposes.” Ind. Code §

       35-38-1-3; see also Anglemyer, 868 N.E.2d at 491 (“trial court must enter a

       sentencing statement that includes a reasonably detailed recitation of its reasons

       for imposing a particular sentence”). On review, we may examine both the

       written and oral sentencing statements to discern the findings of the trial court.

       See Vaughn v. State, 13 N.E.3d 873, 890 (Ind. Ct. App. 2014), trans. denied.


[21]   In this case, the trial court entered a detailed, thoughtful oral sentencing

       statement followed by a written sentencing statement. It is apparent to us that

       the trial court considered each of the proffered mitigating circumstances that

       Fink now argues on appeal. Specifically, after observing that Fink’s conduct

       was the result of an addiction that developed during a painful medical



       Court of Appeals of Indiana | Memorandum Decision 31A01-1510-CR-1704 | October 19, 2016   Page 10 of 13
       condition, the court acknowledged Fink’s minimal role in the crime.2 Cf. Roney

       v. State, 872 N.E.2d 192, 205 (Ind. Ct. App. 2007) (finding an abuse of

       discretion where “trial court did not discuss [the defendant’s] lesser role either

       at the sentencing hearing or in its sentencing statement”), trans. denied.

       Similarly, the trial court addressed the fact that Fink had lost her legal career

       “which is a very severe consequence of her conduct.”3 Appendix at 518.

       Finally, the trial court considered and expressly rejected the proffered mitigator

       that the crime was the result of circumstances unlikely to recur, aptly noting

       “the power of drug addiction and the fact that [Fink] was arrested again during

       her pretrial release.” Id.


[22]   Fink has failed to establish an abuse of discretion. Accordingly, we turn to

       Fink’s claim that her ten-year advisory sentence with two years suspended to

       probation was inappropriate in light of her character and the nature of the

       offense.


[23]   Although a trial court may have acted within its lawful discretion in imposing a

       sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize




       2
         The court observed that it was clear Ripperdan was the person “doing the most active manufacturing and
       that [Fink’s] role in that was minimal.” Transcript at 582.
       3
           At the sentencing hearing, the trial court observed further:

                I take note of the fact that when some people are sitting in your seat they will go back to their
                job painting houses…and your life is forever changed because of this in a way which is gonna
                cost you many thousands of dollars and the, your pride and respect in the community. And so I
                know you’ve already suffered a penalty, which many people would not have suffered at this
                point.
       Transcript at 587.

       Court of Appeals of Indiana | Memorandum Decision 31A01-1510-CR-1704 | October 19, 2016            Page 11 of 13
       independent appellate review and revision of a sentence imposed by the trial

       court. Alvies v. State, 905 N.E.2d 57, 64 (Ind. Ct. App. 2009). This appellate

       authority is implemented through Indiana Appellate Rule 7(B), which provides:

       “The Court may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, the Court finds that the sentence is

       inappropriate in light of the nature of the offense and the character of the

       offender.” Nevertheless, “we must and should exercise deference to a trial

       court’s sentencing decision, both because Rule 7(B) requires us to give ‘due

       consideration’ to that decision and because we understand and recognize the

       unique perspective a trial court brings to its sentencing decisions.” Stewart v.

       State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The appellant bears the

       burden of persuading us that her sentence is inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006).


[24]   With respect to the character of the offender, Fink notes that she had no prior

       criminal history, her conduct was the result an addiction arising out of a painful

       medical condition, and she had a low risk of reoffending. This is juxtaposed,

       however, with the fact that while the instant case was pending, Fink was

       arrested on similar charges, also involving Ripperdan (with whom she had been

       ordered to have no contact), in another county in June 2014.


[25]   Turning to the nature of the offense, Fink emphasizes her minimal role in the

       manufacturing process. While she certainly had a minor role in the actual

       manufacturing, the record indicates that she allowed her home to be the setting

       of Ripperdan’s drug labs. It is evident that this was not a one-time event, as the

       Court of Appeals of Indiana | Memorandum Decision 31A01-1510-CR-1704 | October 19, 2016   Page 12 of 13
       home contained drug paraphernalia, items used to manufacture

       methamphetamine, marijuana, and methamphetamine in various stages of the

       manufacturing process. Further, it can be inferred from the record that Fink

       regularly provided Ripperdan with pseudoephedrine used in his manufacturing

       activities and may have financed his manufacturing to support her drug habit.


[26]   As noted previously, Fink’s sentences were all ordered to be served

       concurrently and, with respect to the highest level offense, she received the

       advisory sentence, which was partially suspended. Considering Fink’s

       character and the nature of her offense, we do not find inappropriate her

       aggregate sentence of ten years with two suspended to probation for seven drug-

       related counts.


[27]   Judgment affirmed.


[28]   Bradford, J. and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 31A01-1510-CR-1704 | October 19, 2016   Page 13 of 13
