      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this
                                                                         Jun 04 2015, 10:38 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Paul Stephen Miller                                       Gregory F. Zoeller
      Fort Wayne, Indiana                                       Attorney General of Indiana
                                                                Eric P. Babbs
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Renald Williams, Sr.,                                    June 4, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               02A04-1409-CR-412
              v.
                                                               Appeal from the Allen Superior
      State of Indiana,                                        Court
                                                               Honorable Wendy W. Davis, Judge
      Appellee-Plaintiff,                                      Cause No. 02D04-1309-FB-166




      Robb, Judge.



                                Case Summary and Issues
[1]   Following a bench trial, Renald Williams, Sr., was convicted of dealing in

      methamphetamine as a Class B felony and possession of chemical reagents or


      Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015         Page 1 of 26
      precursors with intent to manufacture as a Class D felony. He received an

      aggregate sentence of nineteen years.


[2]   Williams appeals, raising the following five issues for our review: (1) whether

      he voluntarily, knowingly, and intelligently waived his constitutional right to a

      jury trial; (2) whether the trial court abused its discretion by admitting evidence

      obtained as a result of a warrantless search; (3) whether his convictions violate

      federal and state constitutional prohibitions against double jeopardy; (4)

      whether the trial court abused its discretion in sentencing him; and (5) whether

      his sentence is inappropriate in light of the nature of the offenses and his

      character.


[3]   Concluding that Williams validly waived his right to a jury trial, that the trial

      court did not abuse its discretion by admitting evidence, and that Williams’s

      convictions do not violate double jeopardy principles, we affirm his convictions.

      Further concluding that the trial court did not abuse its sentencing discretion

      and that Williams’s sentence is not inappropriate, we affirm his sentence.



                            Facts and Procedural History
[4]   On September 13, 2013, the Fort Wayne Police Department received an

      anonymous tip regarding a suspected methamphetamine lab at 1131 Summit

      Street in Fort Wayne. Three police officers responded to the call around

      midnight. Upon arrival, the officers knocked on the front door of the house.




      Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015   Page 2 of 26
      When Thomas Hempel answered the door,1 the officers informed him that they

      were conducting a drug investigation and asked if they could come inside to

      speak with him. Hempel agreed and invited them inside.


[5]   Hempel spoke with the officers in the entryway between the living room and

      the kitchen. Hempel told the officers that he lived in the apartment, and when

      the officers asked if there was anyone else currently in the apartment, he said

      that his girlfriend was in the bedroom. He also said they were “free to look

      around.” Transcript of Trial at 12. As the officers were speaking with Hempel,

      they noticed a pile of salt, latex gloves, and plastic bottles in the kitchen

      trashcan—items consistent with the production of methamphetamine.

      Suspecting methamphetamine production somewhere in the apartment, they

      asked Hempel if they could speak to his girlfriend.


[6]   Hempel walked through the kitchen to the bedroom door and pushed the door

      slightly open, only “wide enough that he could speak to whoever was inside.”

      Id. at 28. Detective Marc Deshaies followed and stood behind him. As

      Hempel attempted to tell his “girlfriend” to come out, Detective Deshaies

      detected the odor of methamphetamine production and saw that the entire

      bedroom was filled with white smoke. Mindful of the dangers of an active

      methamphetamine lab, the officers entered the bedroom. A woman was

      standing near the doorway, and Williams was crouched in the middle of the



      1
       The house at 1131 Summit Street is a two-story building that has been divided into separate apartments.
      Hempel lived in the apartment on the first floor.

      Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015              Page 3 of 26
      room. Williams was holding a vapor-filled bag, and the smoke appeared to be

      coming from his immediate area. A third individual was sitting in an armchair

      to the right of Williams.2


[7]   The officers promptly evacuated the house, called the fire department, and

      requested assistance from the methamphetamine cleanup team. Detective

      Robert Kirby interviewed Hempel, who stated that he was renting the

      apartment and was the only person named on the lease. When Detective Kirby

      asked for consent to search the apartment, Hempel consented to the search.

      The search revealed the following items in the bedroom where Williams was

      found:


             A “one pot meth lab;”
             A hydrochloric gas generator;
             “Liquid Fire” drain opener containing sulfuric acid;
             Coleman fuel, an organic solvent;
             Canisters of table salt;
             Unused coffee filters;
             Six feet of vinyl tubing;
             Lithium batteries;
             One zip lock bag containing ammonium nitrate;
             One “foil boat” with burnt residue;
             One zip lock bag containing “a white cloudy liquid” that tested positive
              for methamphetamine;
             Lye drain opener;
             An instant cold pack containing ammonium nitrate;
             A coffee grinder with residue that tested positive for pseudoephedrine;



      2
          Hempel testified at trial that he did not know the two individuals in the bedroom with Williams.


      Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015                 Page 4 of 26
             One coffee filter that had been used as a strainer;
             A glass pipe with burnt residue; and
             Several pairs of pliers, typically used to remove lithium from batteries.

      Id. at 39-48. Officers found a second “one pot meth lab” in the freezer in the

      kitchen and another hydrochloric gas generator in the kitchen trashcan. Id. at

      49.


[8]   During an interview a few days after his arrest, Williams admitted that he “was

      cooking in the back room” and that he “told Mr. Hempel that he had a female

      in the back bedroom to keep Mr. Hempel out of the room.” Id. at 71. Williams

      provided “a very detailed description of how he manufactures meth,” id. at 70,

      and admitted to selling methamphetamine.


[9]   Williams was charged with dealing in methamphetamine as a Class B felony

      and possession of chemical reagents or precursors with intent to manufacture as

      a Class D felony. During a hearing on March 27, 2014, the following exchange

      took place:

               [Defense counsel:] Over the weekend I received a letter from Mr.
               Williams . . . [i]ndicating that he wants me to file a motion to suppress
               and because we’re up against our trial date which I’m going to be gone
               next week and the trial date is the week after. He wants to waive his
               right to a jury trial and set this for a bench trial so we can discuss
               important issues that may – that may have an effect on this case. . . .


               Court: Your attorney is telling me that you would like to waive your
               right to a jury trial and have this tried to me essentially, is that correct?


               [Defendant:] Yes.

      Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015   Page 5 of 26
               Court: All right. And you understand what that means, that you have
               a right to a trial by jury and all the other rights attached to a jury trial?
               Have you discussed the waiver with your counsel?


               [Defendant:] Not fully, but I will grant it.


               Court: Okay. All right. Any objection from the State?


               [Prosecutor:] No, Your Honor.


               Court: All right. I will go ahead then and note – note that he has
               waived his right to a jury trial.
       Transcript of Hearing at 7-8. Williams did not sign a written waiver.


[10]   The parties agreed to set the matter for a combined suppression hearing and

       bench trial on April 9, 2014, and the trial court instructed defense counsel to file

       a written motion to suppress prior to that date. On July 8, 2014, following

       several continuances, Williams sent a letter to the trial court and filed a pro se

       motion to suppress. The letter stated in relevant part:

               [My attorney] has failed to file the suppression that I’ve asked him to
               do. . . . The suppression was supposed to be filed prior to our original
               trial date of April 9, 2014. That was one of the reasons why I waived
               my jury trial rights on March 27, 2014. I wanted to place myself
               completely under your discretion versus 12 jurors whom may be
               ignorant or incompetent to the law.
       Appendix of Appellant at 68.


[11]   The combined suppression hearing and bench trial took place on July 14, 2014.

       After hearing the evidence, the trial court denied the motion to suppress and

       Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015   Page 6 of 26
       found Williams guilty on both counts. The trial court sentenced Williams to

       nineteen years for dealing in methamphetamine, with seventeen years executed

       in the Department of Correction and two years suspended to probation, to be

       served concurrently with a three year executed sentence for possession of

       chemical reagents or precursors. Williams now appeals.



                                  Discussion and Decision
                         I. Waiver of the Right to a Jury Trial
[12]   The right to trial by jury is a fundamental right guaranteed by the Sixth

       Amendment to the U.S. Constitution and by Article 1, Section 13 of the

       Indiana Constitution. Coleman v. State, 694 N.E.2d 269, 278 (Ind. 1998). A

       defendant’s waiver of the right “must be voluntary, knowing, and intelligently

       made with sufficient awareness of the relevant circumstances surrounding its

       entry and its consequences.” O’Connor v. State, 796 N.E.2d 1230, 1233 (Ind. Ct.

       App. 2003) (citation omitted). Williams contends that he did not knowingly

       and voluntarily waive his right to a jury trial.


[13]   Denying a defendant a jury trial in the absence of a knowing, voluntary, and

       intelligent waiver is fundamental error. Johnson v. State, 6 N.E.3d 491, 496 (Ind.

       Ct. App. 2014). A valid waiver requires affirmative action by the defendant,

       O’Connor, 796 N.E.2d at 1233, and “must be elicited personally from the

       defendant, either orally in open court or in writing.” Reynolds v. State, 703

       N.E.2d 701, 704 (Ind. Ct. App. 1999). This court has determined:


       Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015   Page 7 of 26
               A voluntary waiver occurs if the conduct constituting the waiver is the
               product of a free will; a knowing waiver is the product of an informed
               will; an intelligent waiver is the product of a will that has the capacity
               to understand; and a waiver is personal if it is made by the defendant.
       Id. (citation omitted).


[14]   Williams argues that his waiver was not an informed decision for two reasons.

       First, at the time of the waiver, Williams told the trial court that he had “not

       fully” discussed his rights with counsel. Tr. of Hearing at 8. Second, following

       Williams’s statement that he had “not fully” discussed his rights, the trial court

       did not conduct an oral advisement of rights. Id. However, there is nothing in

       the record to suggest that Williams did not understand his right to a jury trial

       and the consequences of waiving that right. Although the defendant’s personal

       desire to waive the right must be apparent from the record, there is no

       requirement that a trial court orally advise a defendant of his or her right to a

       jury trial and the consequences of waiving that right. McSchooler v. State, 15

       N.E.3d 678, 682-83 (Ind. Ct. App. 2014). Nor is counsel required “to explain

       each and every possible detail concerning a jury trial in order for the defendant

       to be sufficiently informed . . . .” Reynolds, 703 N.E.2d at 704.


[15]   Williams’s significant criminal history, including six prior felony convictions,

       “suggests a high level of familiarity with the judicial process, making it quite

       likely that he knew what a ‘jury’ was.” Poore v. State, 681 N.E.2d 204, 207 (Ind.

       1997). Williams demonstrated his knowledge in his letter to the trial court

       when he stated that a jury would be composed of twelve laypersons. In

       addition, Williams was represented by counsel when he waived his right to a

       Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015   Page 8 of 26
       jury trial. At the hearing on March 27, 2014, Williams’s attorney stated that

       Williams wanted to waive his right to a jury trial “so we can discuss important

       issues that may . . . have an effect on this case.” Tr. of Hearing at 8. This

       statement implies that Williams was acting upon the advice of legal counsel,

       and that the decision to waive the right to a jury trial was a strategic one. See

       McSchooler, 15 N.E.3d at 683.


[16]   The letter that Williams sent to the trial court, read in light of his attorney’s

       arguments at sentencing, further suggests that Williams waived his right to a

       jury trial for strategic reasons. Williams wrote that the motion to suppress was

       “one of the reasons why [he] waived his jury trial rights.” App. of Appellant at

       68. He did not trust a jury of his peers—individuals who “may be ignorant or

       incompetent to the law”—because his primary defense was alleging a violation

       of the Fourth Amendment. Id. At sentencing, his attorney stated as much:

               He requested a bench trial so that he could contest what he perceived
               to be a violation of his Fourth Amendment Rights. We didn’t want to
               do a jury trial because all along, he . . . accepted the fact that he was
               caught in the act and . . . there was enough evidence to convict him
               otherwise.
       Transcript of Sentencing at 5-6. Evidence of waiver as a deliberate strategy

       supports the trial court’s conclusion that Williams made an informed decision

       when he waived his right to a jury trial. See McSchooler, 15 N.E.3d at 683.


[17]   Williams also contends that the waiver was not voluntary because it was

       “conditioned on a motion to suppress being filed,” and “the only suppression

       motion was that filed by [Williams] and not his counsel.” Brief of Appellant at

       Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015   Page 9 of 26
       9. The State argues that “subsequent action or inaction by either party’s

       counsel could not undo [the waiver’s] voluntariness.” Brief of Appellee at 13

       n.7. We disagree with the State’s proposition. See Williams v. State, 159 Ind.

       App. 470, 476-77, 307 N.E.2d 880, 884-85 (1974) (finding an abuse of

       discretion when the trial court did not permit the withdrawal of a jury trial

       waiver “predicated upon a bargain struck with the prosecution” after plea

       negotiations failed). Nevertheless, we conclude that Williams’s waiver was

       voluntary.


[18]   Williams opted for a bench trial to “contest what he perceived to be a violation

       of his Fourth Amendment Rights,” and a motion to suppress was indeed filed

       before trial. Tr. of Sentencing at 5. Williams’s statement regarding a motion to

       suppress being one of the reasons for waiver reveals his defense strategy. The

       statement does not make the waiver conditional, as Williams argues.


[19]   Once Williams believed that his attorney would not be filing a motion to

       suppress, Williams filed a pro se motion. He at no point requested to withdraw

       his waiver, and he did not object when the bench trial was held. See Johnson, 6

       N.E.3d at 497 (“[S]ubmission to a bench trial [is] one piece of evidence, among

       others, supporting a waiver.”). Although Williams likely did not anticipate

       filing the motion to suppress without the assistance of counsel, we have stated

       that a “mere allegation” of ineffective assistance is insufficient to invalidate a

       jury trial waiver. See Kindle v. State, 161 Ind. App. 14, 22-23, 313 N.E.2d 721,

       726-27 (1974).



       Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015   Page 10 of 26
[20]   In light of all of these factors, we conclude that Williams knowingly,

       voluntarily, and intelligently waived his right to a jury trial.


                                         II. Warrantless Search
                                          A. Standard of Review
[21]   Williams next contends that the search of Hempel’s bedroom violated his

       Fourth Amendment rights3 because the police obtained invalid consent to

       conduct the search. When a defendant challenges the constitutionality of a

       search following a completed trial, the issue becomes whether the trial court

       abused its discretion by admitting the evidence found during the search.

       Bulthuis v. State, 17 N.E.3d 378, 382 (Ind. Ct. App. 2014), trans. denied. The trial

       court abuses its discretion only if its decision was clearly against the logic and

       effect of the facts and circumstances before it, or if the trial court has

       misinterpreted the law. Id. at 382-83.


[22]   In reviewing the trial court’s ruling, we do not reweigh the evidence but defer to

       the trial court’s factual determinations unless clearly erroneous. Meredith v.

       State, 906 N.E.2d 867, 869 (Ind. 2009). We view conflicting evidence most

       favorably to the trial court’s ruling. Id. However, we also consider any

       undisputed evidence favorable to the defendant. State v. Cunningham, 26




       3
         Williams’s only reference to the Indiana Constitution is his assertion that “[t]he Fourth Amendment to the
       United States Constitution and Article 1, Section 11 of the Indiana Constitution protect an individual’s
       privacy and possessory interests by prohibiting unreasonable searches and seizures.” Br. of Appellant at 11.
       Because Williams “presents no authority or independent analysis supporting a separate standard under the
       state constitution, any state constitutional claim is waived.” Lockett v. State, 747 N.E.2d 539, 541 (Ind. 2001).

       Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015                 Page 11 of 26
       N.E.3d 21, 25 (Ind. 2015) (citation omitted). Finally, although the trial court’s

       factual determinations are entitled to deferential review, the constitutionality of

       a search is a question of law that we review de novo. Johnson v. State, 992

       N.E.2d 955, 957 (Ind. Ct. App. 2013), trans. denied.


                                     B. Admission of Evidence
[23]   “To trigger Fourth Amendment protections, a search arises out of an intrusion

       by a government actor upon an area in which a person maintains a reasonable

       expectation of privacy.” Holder v. State, 847 N.E.2d 930, 935 (Ind. 2006)

       (quoting Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring))

       (internal quotation marks omitted). Williams contends that he was an

       overnight guest with a reasonable expectation of privacy in Hempel’s bedroom.

       While it is true that overnight guests may claim the protection of the Fourth

       Amendment, we do not believe Williams falls in this category.


[24]   The U.S. Supreme Court, in Minnesota v. Carter, distinguished overnight guests

       from those who are “merely present with the consent of the householder . . . .”

       525 U.S. 83, 90 (1998) (citing Minnesota v. Olson, 495 U.S. 91, 98-99 (1990)).

       Our supreme court has similarly distinguished overnight guests from “casual

       guests.” See Gray v. State, 593 N.E.2d 1188, 1191 (Ind. 1992). The casual guest

       lacks standing to challenge a search because he or she has no legitimate

       expectation of privacy in the premises. Id. We believe Williams was a casual

       guest.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015   Page 12 of 26
[25]   In Carter, the U.S. Supreme Court held that a defendant who was in another

       person’s apartment for the sole purpose of packaging cocaine was merely a

       casual guest. 525 U.S. at 90-91. The defendant had never been to the

       apartment before, stayed for less than three hours, and paid the tenant in

       cocaine for his use of the apartment. We confronted a similar set of facts in

       Gregory v. State, 885 N.E.2d 697 (Ind. Ct. App. 2008), trans. denied. Gregory

       agreed to manufacture methamphetamine at his codefendant’s mother’s house.

       His codefendant’s mother was out of town at the time, and we held that

       Gregory was “just a mere visitor” to the property and lacked standing to

       challenge the search that occurred there. Id. at 704. Likewise in Best v. State,

       821 N.E.2d 419 (Ind. Ct. App. 2005), trans. denied, the defendant argued that he

       was an overnight guest in a camper trailer because he had paid to use it to

       manufacture methamphetamine. Best had been to the property where the

       camper trailer was parked “a dozen or more times but had never stayed

       overnight.” Id. at 422. He had “never used the camper trailer as a dwelling

       place, but only for commercial purposes, and he was there only intermittently.”

       Id. at 425. We held that Best was never an overnight guest “but was simply

       there to do business; that is, to manufacture methamphetamine.” Id.4




       4
         We further noted in Best that property used for commercial purposes is treated differently from residential
       property: “‘An expectation of privacy in commercial premises is different from, and indeed less than, a
       similar expectation in an individual’s home.’ . . . Since the property was being used by Best for purely
       commercial purposes, it is treated differently than property used for residential purposes.” Id. at 425 (quoting
       Carter, 525 U.S. at 90).

       Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015                Page 13 of 26
[26]   On the other hand, in Harless v. State, 577 N.E.2d 245, 247-48 (Ind. Ct. App.

       1991), a defendant who “had stayed overnight at [his girlfriend’s] home on

       many occasions and on the evening preceding the day on which the search

       occurred,” and who “paid several of the household utility bills,” was considered

       an overnight guest. Similarly, in Hanna v. State, 726 N.E.2d 384, 387 n.4 (Ind.

       Ct. App. 2000), we held that a defendant who had stayed overnight at his

       friend’s apartment over twenty times in the few months before the search was

       an overnight guest; in that case, the two individuals had been friends for five

       years.


[27]   We believe that the present case resembles the facts of Carter, Gregory, and Best.

       At the time of the search, Hempel had known Williams for less than three

       weeks and did not even know Williams’s real name.5 Although Williams had

       a key to Hempel’s apartment on the day of the search, Hempel testified that day

       was the first and only time he had ever given Williams a key. And Hempel did

       not believe that Williams would be staying the night. Hempel thought

       Williams would be going to a girlfriend’s house and gave Williams a key so that

       Williams could “get cleaned up before he went on down there.” Tr. of Trial at

       94. Williams was not an overnight guest. He “was simply there to do business;

       that is, to manufacture methamphetamine.” See Best, 821 N.E.2d at 425.




       5
           Hempel knew Williams as “Twin” at the time of the search. Tr. of Trial at 92.


       Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015   Page 14 of 26
[28]   In short, Williams cannot challenge the search because he had no legitimate

       expectation of privacy in Hempel’s bedroom.6 We therefore hold that the trial

       court did not abuse its discretion by admitting evidence obtained as a result of

       the search.


                                          III. Double Jeopardy
                                          A. Standard of Review
[29]   Williams also argues that his convictions for dealing in methamphetamine by

       manufacturing and possession of chemical reagents or precursors with intent to

       manufacture violate federal and state constitutional prohibitions against double

       jeopardy. We review whether multiple convictions violate double jeopardy de

       novo. Jones v. State, 976 N.E.2d 1271, 1275 (Ind. Ct. App. 2012), trans. denied.


                                    B. United States Constitution
[30]   The Double Jeopardy Clause of the Fifth Amendment provides that no person

       shall “be subject for the same offense to be twice put in jeopardy of life or



       6
         But even if Williams had been an overnight guest, Hempel had actual authority to consent to the search and
       provided valid consent. See, e.g., Gado v. State, 882 N.E.2d 827, 831-32 (Ind. Ct. App. 2008), trans. denied.
       Hempel was the resident of the apartment. He “sometimes” slept in the bedroom, but more often slept on
       the couch in the living room because the bedroom was quite small. Tr. of Trial at 96. As Hempel explained,
       the bedroom was “more like a closet for everything.” Id. And notwithstanding frequent nights on the couch,
       Hempel referred to the bed in the bedroom as his own. Even though Hempel had permitted Williams to use
       the room on occasion, Hempel could consent to the search in his own right. See Gado, 882 N.E.2d at 832.
       Williams erroneously suggests that overnight guests have a privacy interest that “cannot be invaded by law
       enforcement based on a third party’s consent.” Br. of Appellant at 12. In fact, “[i]t is well established that a
       third party may consent to a search of another’s premises or property if actual authority exists.” Lee v. State,
       849 N.E.2d 602, 606 (Ind. 2006) (citing Illinois v. Rodriguez, 497 U.S. 177, 179 (1990)), cert. denied, 549 U.S.
       1211 (2007). And the exception articulated in Georgia v. Randolph, 547 U.S. 103 (2006), applies only when a
       physically present co-occupant objects to a search. Here, Williams did not object.

       Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015                 Page 15 of 26
       limb.” To evaluate Williams’s federal double jeopardy claim, we employ the

       well-established test announced in Blockburger v. United States: “[T]he test to be

       applied to determine whether there are two offenses or only one, is whether

       each provision requires proof of a fact which the other does not.” 284 U.S. 299,

       304 (1932). Review is limited to the relevant statutes; the factual elements in

       the charging information and the jury instructions are not part of the inquiry.

       Berry v. State, 703 N.E.2d 154, 159 (Ind. 1998).


[31]   Indiana Code section 35-48-4-1.1(a) (2013) provides, in relevant part: “A person

       who . . . knowingly or intentionally . . . manufactures . . . methamphetamine . .

       . commits dealing in methamphetamine, a Class B felony . . . .” Indiana Code

       section 35-48-4-14.5(e) (2013) provides, in relevant part: “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.”7


[32]   Dealing in methamphetamine by manufacturing and possession of chemical

       reagents or precursors with intent to manufacture do not constitute the same

       offense under Blockburger because each provision requires proof of a fact which

       the other does not. Dealing in methamphetamine by manufacturing requires

       that a defendant actually begin the process of manufacturing

       methamphetamine, whereas possession of chemical reagents or precursors with




       7
         “Chemical reagents or precursors” are defined in Indiana Code section 35-48-4-14.5(a) (2013), and include
       the following: pseudoephedrine, ammonia solution, organic solvents, hydrochloric acid, lithium metal,
       sulfuric acid, sodium hydroxide (lye), and ammonium nitrate.

       Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015             Page 16 of 26
       intent to manufacture methamphetamine does not require that the

       manufacturing process actually be initiated. Bush v. State, 772 N.E.2d 1020,

       1024 (Ind. Ct. App. 2002), trans. denied. A defendant can possess chemical

       reagents or precursors with intent to manufacture without taking any steps

       toward actually manufacturing. Likewise, possession of chemical reagents or

       precursors with intent to manufacture requires proof that a defendant possessed

       at least two chemical reagents or precursors, but manufacturing

       methamphetamine does not. If, for instance, a defendant was in the late stages

       of the process of manufacturing methamphetamine and possessed only empty

       containers that had previously contained chemical reagents or precursors, that

       defendant would be guilty of manufacturing, but not of possession of chemical

       reagents or precursors. There is no federal double jeopardy violation because

       each offense requires proof of a fact which the other does not.


                                      C. Indiana Constitution
[33]   Article 1, Section 14 of the Indiana Constitution provides that “[n]o person

       shall be put in jeopardy twice for the same offense.” Our supreme court has

       concluded:

               [T]wo or more offenses are the same offense in violation of [A]rticle 1,
               [S]ection 14 if, with respect to either the statutory elements of the
               challenged crimes or the actual evidence used to obtain convictions,
               the essential elements of one challenged offense also establish the
               essential elements of another challenged offense.


       Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013) (citing Richardson v. State, 717

       N.E.2d 32 (Ind. 1999)). The statutory elements test is the test enunciated in
       Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015   Page 17 of 26
       Blockburger. Brown v. State, 912 N.E.2d 881, 896 (Ind. Ct. App. 2009), trans.

       denied. Under the actual evidence test, we examine the evidence presented at

       trial to determine whether each offense was established by separate and distinct

       facts. Garrett, 992 N.E.2d at 719. To find a double jeopardy violation under the

       actual evidence test, we must conclude that there is a reasonable possibility that

       the evidentiary facts used to establish the essential elements of one offense may

       also have been used to establish all of the essential elements of a second

       challenged offense. Id.


[34]   In Iddings v. State, 772 N.E.2d 1006 (Ind. Ct. App. 2002), trans. denied, and Bush

       v. State, 772 N.E.2d 1020, two cases decided on the same day, we addressed the

       circumstances in which a defendant’s conviction for possession of chemical

       reagents or precursors would be a lesser included offense of dealing in

       methamphetamine by manufacturing. As we explained in Iddings and Bush,

       both convictions may stand if the evidence reasonably permits the conclusion

       that the defendant committed two independent offenses. In Iddings, the police

       recovered completed methamphetamine at the defendant’s residence as well as

       precursors of methamphetamine in large quantities. 772 N.E.2d at 1017. We

       concluded that the evidence established two independent offenses because the

       defendant had already completed the process of manufacturing

       methamphetamine and possessed the precursors with intent to manufacture

       more methamphetamine. Id. We reached a different conclusion in Bush, where

       the defendant’s “conviction for manufacturing methamphetamine was based

       exclusively on his possession of the precursors of that drug in circumstances

       Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015   Page 18 of 26
       suggesting that he was in the process of manufacturing it.” 772 N.E.2d at 1024.

       Bush’s possession of precursors was not an independent offense because there

       was no evidence that he had succeeded in completing a “batch” of

       methamphetamine. Id.


[35]   In Scott v. State, 803 N.E.2d 1231, 1240 (Ind. Ct. App. 2004), another case in

       which a defendant was convicted of both dealing by manufacturing and

       possession of chemical reagents or precursors, we held that the evidence

       supported the inference that two independent offenses had occurred, even

       though the police did not find completed methamphetamine on the defendant’s

       property. Notwithstanding the absence of completed methamphetamine, the

       evidence permitted the conclusion that “actual methamphetamine had already

       been created.” Id. The defendant stated that he was tired of people calling the

       police about the smell of ether emanating from this property, and the police

       found “punctured and burned starting fluid cans, empty mineral spirits cans,

       stripped out lithium batteries, and two plastic containers that were being used as

       [hydrochloric gas] generators” on his property. Id. Citing Iddings, we affirmed

       both convictions because the defendant also possessed the chemical reagents

       and precursors needed to manufacture additional methamphetamine. Id.


[36]   Here, the evidence indicates that Williams had previously manufactured

       methamphetamine, had nearly completed another batch when he was

       discovered, and possessed materials to produce more methamphetamine.

       Williams admitted that he had previously manufactured methamphetamine and

       provided a very detailed description of the production process. Williams also

       Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015   Page 19 of 26
       admitted to selling methamphetamine and even disclosed how much he charges

       for the finished product. In addition to the equipment found in the bedroom

       where Williams was actively manufacturing, police found a second “one pot

       meth lab” in the freezer and another hydrochloric gas generator in the kitchen

       trashcan. Tr. of Trial at 49. The bottle of Coleman fuel discovered in the

       bedroom tested positive for “a high level of ammonia,” meaning that Williams

       had “re-used” the organic solvent. Id. Finally, Williams was at a late stage in

       the manufacturing process at the time of the search and had already produced

       methamphetamine. Police found liquid methamphetamine base, an

       intermediate mixture containing methamphetamine and organic solvents. The

       final step in the manufacturing process, known as “salting out” the

       methamphetamine, removes the methamphetamine from the solvent in order to

       produce the finished powder form. Id. at 84; see also Buelna v. State, 20 N.E.3d

       137, 144 (Ind. 2014). The final step requires hydrochloric gas, and police

       found two hydrochloric gas generators—one in the bedroom with Williams and

       another that had been thrown away in the kitchen trashcan.


[37]   At the time of the search, Williams had already produced methamphetamine,

       was one step away from a finished product, and possessed chemical reagents

       and precursors in addition to what was needed to complete the process. The

       evidence supports the inference that two independent offenses occurred. We

       therefore conclude that each offense was established by separate and distinct

       facts.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015   Page 20 of 26
                           IV. Abuse of Sentencing Discretion
[38]   Sentencing decisions rest within the sound discretion of the trial court and are

       reviewed on appeal only 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. (citation and internal quotation marks

       omitted). A trial court abuses its discretion at sentencing if it: (1) fails to enter a

       sentencing statement; (2) enters a sentencing statement that explains reasons for

       imposing a sentence, but the record does not support the reasons; (3) enters a

       sentencing statement that omits reasons that are clearly supported by the record

       and advanced for consideration; or (4) gives reasons that are improper as a

       matter of law. Id. at 490-91. If we determine that the trial court has abused its

       discretion, we will remand for resentencing “if we cannot say with confidence

       that the trial court would have imposed the same sentence had it properly

       considered reasons that enjoy support in the record.” Id. at 491.


[39]   Williams contends that the trial court abused its discretion by entering a

       sentencing statement with a reason that was unsupported by the record. The

       trial court found the following aggravating circumstances on the written

       judgment of conviction: “Criminal history includes 1 misdemeanor, 6 felonies

       of which are robbery, unlawful use of a weapon, battery, escape, strangulation

       and on parole when he committed this offense.” App. of Appellant at 73.

       Williams argues that the trial court abused its discretion by finding that he has a

       Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015   Page 21 of 26
       prior conviction for robbery as a felony; in fact, Williams has only a juvenile

       adjudication for robbery. Yet notwithstanding the mischaracterization of the

       juvenile adjudication as an adult conviction on the judgment of conviction, the

       trial court’s assertion that Williams has six prior felony convictions was

       accurate.


[40]   Williams has been convicted of the following felonies as an adult: (1)

       possession of a stolen vehicle; (2) unlawful use of a weapon; (3) domestic

       battery; (4) escape; (5) strangulation; and (6) possession of methamphetamine.

       In addition to his six prior felony convictions as an adult, Williams was

       adjudicated delinquent for committing an act that would have been felony

       robbery if committed by an adult. At the sentencing hearing, the trial court

       listed seven felony-level offenses, but concluded by stating that Williams had

       only six prior felony convictions. Because the trial court was permitted to

       consider Williams’s history of delinquent behavior,8 and the record supports the

       trial court’s statement that Williams has six prior felony convictions as an adult,

       we hold that the trial court did not abuse its discretion when it mischaracterized

       Williams’s juvenile adjudication as an adult conviction. Cf. Bethea v. State, 983

       N.E.2d 1134, 1141 (Ind. 2013) (concluding that the trial’s court’s misstatement

       that defendant “had been convicted of possession of cocaine with intent to

       distribute, when in fact he had pled guilty to the lesser included offense of



       8
        Indiana Code section 35-38-1-7.1(a) provides: “In determining what sentence to impose for a crime, the
       court may consider the following aggravating circumstances: . . . The person has a history of criminal or
       delinquent behavior.”

       Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015              Page 22 of 26
       possession of cocaine” was “not significant” because the error “did not change

       the fact that [the defendant] had in fact been convicted of a felony for

       possessing cocaine, which was also part of a pattern of [the defendant’s]

       involvement in criminal activity”).


                              V. Appropriateness of Sentence
[41]   Finally, Williams contends that his sentence is inappropriate in light of the

       nature of the offenses and his character. Indiana Appellate Rule 7(B) 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.” The defendant bears the burden of persuading this court that his or

       her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

       2006). Whether we regard a sentence as inappropriate turns on “the culpability

       of the defendant, the severity of the crime, the damage done to others, and

       myriad other factors that come to light in a given case.” Cardwell v. State, 895

       N.E.2d 1219, 1224 (Ind. 2008).


[42]   Regarding the nature of the offense, the advisory sentence is the starting point

       that the legislature has selected as an appropriate sentence for the crime

       committed. Childress, 848 N.E.2d at 1081. Williams was convicted of dealing

       in methamphetamine as a Class B felony and possession of chemical reagents

       or precursors with intent to manufacture as a Class D felony. A person who

       commits a Class B felony is subject to a sentence of six to twenty years, with the


       Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015   Page 23 of 26
       advisory sentence being ten years. Ind. Code § 35-50-2-5. Likewise, a person

       who commits a Class D felony is subject to a sentence of six months to three

       years, with the advisory sentence being one-and-a-half years. Ind. Code § 35-

       50-2-7.


[43]   Here, the trial court sentenced Williams to nineteen years for the dealing

       conviction and three years for possession of chemical reagents or precursors, to

       be served concurrently. Seventeen of the nineteen years are to be served in the

       Department of Correction, followed by two years of probation. 9 Williams told

       police that he not only “cooks” but also sells methamphetamine and often

       accepts pseudoephedrine as payment. Tr. of Trial at 71-74. Moreover, twenty-

       seven-year-old Williams was manufacturing methamphetamine in an apartment

       that did not belong him; the apartment belonged to sixty-six-year-old Hempel.

       Hempel had known Williams for just over two weeks the day the

       methamphetamine lab was discovered. That day, Williams drove Hempel to

       Grabill, a small town outside of Fort Wayne. After dropping off Hempel,

       Williams went back to Hempel’s apartment to manufacture methamphetamine

       while Hempel was away, and when Hempel returned home, Williams told

       Hempel “that he had a female in the back bedroom to keep . . . Hempel out of

       the room.” Id. at 71. Williams was manufacturing methamphetamine in an




       9
         Williams argues that we should reduce his sentence because the maximum possible sentence is reserved for
       the “worst of the worst.” Br. of Appellant at 18. Williams correctly states the law in Indiana. See Hamilton v.
       State, 955 N.E.2d 723, 727 (Ind. 2011). However, Williams did not receive the maximum sentence on the
       lead charge, and an “approximation” of the maximum sentence is not the same as the maximum possible
       sentence. Br. of Appellant at 17.

       Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015               Page 24 of 26
       apartment that was not his, possibly without the tenant’s knowledge, and in so

       doing exposed innocent bystanders to the dangers of an active

       methamphetamine lab. See Holder, 847 N.E.2d at 939 (“[T]he production of

       methamphetamine introduces a high risk of explosion and fire.”).


[44]   Williams acknowledges that manufacturing methamphetamine “creates a

       serious and dangerous situation” but argues that his character does not warrant

       a nineteen-year sentence. Br. of Appellant at 17. Williams contends that his

       sentence should be reduced because “he has an extremely serious drug abuse

       problem.” Id. We have previously stated, however, that “substance abuse

       reflects poorly upon [a defendant’s] character.” Calvert v. State, 930 N.E.2d 633,

       644 (Ind. Ct. App. 2010). Furthermore, in the present case, Williams was

       convicted of not merely possession but dealing in methamphetamine, a far more

       serious offense that is not directly related to his addiction. As Williams has

       never undergone treatment or otherwise addressed his substance abuse, he has

       failed to convince us that his addiction merits a reduced sentence.


[45]   As to Williams’s character more generally, at twenty-seven-years-old, Williams

       has six prior felony convictions. His prior convictions include unlawful use of a

       weapon, domestic battery, and strangulation. Williams has been sentenced to

       executed time in the Department of Correction for each prior felony conviction

       and has continued to reoffend. He was on parole at the time of this offense.


[46]   Given the nature of his offenses and his character, we are not persuaded that

       Williams’s sentence is inappropriate.


       Court of Appeals of Indiana | Memorandum Decision 02A04-1409-CR-412 | June 4, 2015   Page 25 of 26
                                               Conclusion
[47]   Williams knowingly, voluntarily, and intelligently waived his right to a jury

       trial, and the trial court did not abuse its discretion by admitting evidence

       obtained pursuant to Hempel’s consent. Williams’s convictions do not violate

       double jeopardy principles because each offense requires proof of additional

       facts which the other does not, and each was established by separate and

       distinct facts. Finally, the trial court did not abuse its discretion in sentencing,

       and an aggregate sentence of nineteen years is not inappropriate. Therefore, we

       affirm.


[48]   Affirmed.


       Bailey, J., and Brown, J., concur.




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