      MEMORANDUM DECISION
                                                                     May 15 2015, 8:35 am
      Pursuant to Ind. Appellate Rule 65(D), this
      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
      Stephen P. Murphy, Jr.                                   Gregory Zoeller
      Law Offices of Stephen Murphy, LLC                       Attorney General of Indiana
      Evansville, Indiana
                                                               Christina D. Pace
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Scott Wolf,                                              May 15, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               82A01-1410-CR-433
              v.                                               Appeal from the Vanderburgh
                                                               Superior Court
                                                               The Honorable Robert J. Pigman,
      State of Indiana,                                        Judge
      Appellee-Plaintiff                                       Cause No. 82D02-1306-FA-810




      Bradford, Judge.



                                            Case Summary
[1]   On May 1, 2013, Appellant-Defendant Scott Wolf was manufacturing

      methamphetamine in his cousin’s apartment. During the manufacturing


      Court of Appeals of Indiana | Memorandum Decision 82A01-1410-CR-433 | May 15, 2015     Page 1 of 8
      process, a bottle containing highly flammable contents began to leak and started

      a fire in the apartment. After an investigation into the origins of the fire and

      upon finding that Wolf had purchased large amounts of pseudoephedrine (a

      common methamphetamine precursor) in the weeks prior to the fire, Appellee-

      Plaintiff the State of Indiana (“the State”) charged Wolf with dealing in

      methamphetamine. Wolf was found guilty and sentenced to forty years of

      incarceration. On appeal, Wolf argues that the evidence was insufficient to

      support his conviction. We disagree and affirm Wolf’s conviction.



                            Facts and Procedural History
[2]   On May 1, 2013, Wolf began the process of making methamphetamine at his

      cousin Shane Memmer’s apartment. Wolf had been staying at Memmer’s

      apartment which was located in the North Apartment Complex in Evansville

      and lies within 1000 feet of Holy Redeemer School. Wolf and Memmer had an

      agreement whereby Wolf was allowed to manufacture methamphetamine in

      Memmer’s apartment and in return, Wolf would give Memmer a portion of the

      product. Prior to May 1, this arrangement had continued for approximately

      “eight to ten weeks” and Wolf had produced “six or eight” batches of

      methamphetamine. Tr. p. 301.


[3]   After Memmer dropped his son off for school on the morning of May 1, he

      returned home and began helping Wolf with his methamphetamine production.

      As part of this process, Wolf had filled empty plastic bottles with several

      ingredients and explained to Memmer that he had to shake the bottle and then

      Court of Appeals of Indiana | Memorandum Decision 82A01-1410-CR-433 | May 15, 2015   Page 2 of 8
      slowly release the pressure and fumes. After the two had been shaking the

      bottles for approximately forty-five minutes, Wolf’s bottle sprung a leak. As the

      liquid sprayed from the bottle it caught flame and started a fire in the kitchen.

      Wolf and Memmer attempted to extinguish the fire to no avail. At Memmer’s

      instruction, Wolf attempted to retrieve a fire extinguisher from the Laundromat

      next door but fell and broke his arm in the process. A short time later, the fire

      department arrived at Memmer’s apartment. Upon hearing sirens, Memmer

      fled the scene but was picked up by police officers soon after.


[4]   After putting out the fire, Evansville Fire Department investigator Joseph

      Mayer spoke with Wolf and examined the Memmer’s apartment. Based on the

      presence of several items known to be used in the production of

      methamphetamine (including three containers of lye, stripped lithium batteries,

      coffee grinder and filters, a can of xylene organic solvent, and Coleman

      camping fuel), Mayer requested the presence of the Drug Enforcement Unit.


[5]   Evansville Police Department Detective Patrick McDonald, who works with

      the Methamphetamine Suppression Unit, was called to the scene. In addition

      to the items found by Mayer, Detective McDonald found several additional

      tools and precursors used in the production of methamphetamine, including

      wire cutters, safety goggles burned to a container of lye, a one-pint container of

      liquid fire (a sulfuric-acid-based drain cleaner), an air-purifying mask, a burned

      backpack containing mail addressed to Wolf, instant cold packs containing

      ammonia nitrate, an empty box of Claritin-D pseudoephedrine, as well as



      Court of Appeals of Indiana | Memorandum Decision 82A01-1410-CR-433 | May 15, 2015   Page 3 of 8
      several items of “lab trash.” Tr. p. 308. The items found were consistent with

      methamphetamine being manufactured by the “one pot” method. Tr. p. 32.


[6]   Memmer testified that both he and Wolf had bought the precursors necessary to

      produce methamphetamine on several occasions, mainly from local CVS and

      Walgreens drug stores. Memmer testified that he never purchased

      pseudoephedrine for himself or Wolf for any purpose other than the

      manufacture of methamphetamine. Wolf’s National Precursor Log Exchange1

      (“NPLEx”) records indicate that he bought the following boxes of

      pseudoephedrine based medications: one 1.44-gram box on April 26, 2013, one

      2.4-gram box on April 24, 2013, one 2.4-gram box on April 21, 2013, one 0.72-

      gram box on April 20, 2013, one 2.4-gram box on March 25, 2013, on 2.4-gram

      box on March 20, 2013, one 2.4-gram box on March 18, 2013, one 3.6-gram

      box on March 8, 2013, and one 2.4-gram box on February 18, 2013. Wolf was

      also prohibited from purchasing pseudoephedrine medications on March 27

      and April 8, 2013, for exceeding the maximum amount allowed to be

      purchased in a given period of time.


[7]   The State charged Wolf with Class A felony dealing in methamphetamine

      within 1000 feet of a school, Class A felony dealing in methamphetamine

      within 1000 feet of a family housing complex, Class A felony conspiracy to

      commit dealing in methamphetamine within 1000 feet of a school, and Class A



      1
       The NPLEx is a system which documents individual’s purchases and attempted purchases of ephedrine and
      pseudoephedrine.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1410-CR-433 | May 15, 2015         Page 4 of 8
      felony conspiracy to commit dealing in methamphetamine within 1000 feet of a

      family housing complex. A jury found Wolf guilty as charged. On September

      8, 2014, the trial court merged the conspiracy and dealing convictions and

      sentenced Wolf to forty-year terms for each dealing in methamphetamine

      conviction to be served concurrently.



                                Discussion and Decision
[8]   Wolf argues that there was insufficient evidence to support his convictions for

      dealing in 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.
      Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007) (internal quotations and

      citations omitted, emphases in original).


[9]   In order to convict Wolf of Class A felony dealing in methamphetamine the

      State was required to show that Wolf knowingly or intentionally manufactured

      methamphetamine, pure or adulterated, within 1000 feet of a school property or

      housing complex. Ind. Code § 35-48-4-1.1. Wolf concedes that he was staying
      Court of Appeals of Indiana | Memorandum Decision 82A01-1410-CR-433 | May 15, 2015   Page 5 of 8
       at Memmer’s apartment at the time of the fire and that methamphetamine was

       being produced at Memmer’s apartment; as such we need not reiterate the

       evidence thereof. However, Wolf argues that there was not sufficient evidence

       that he took part or aided in the manufacturing process and that it was only

       Memmer who had been illegally producing the drug.


[10]   The probative evidence and reasonable inferences supporting the verdict include

       Memmer’s testimony which revealed that (1) he and Wolf had an agreement

       whereby he would allow Wolf to produce methamphetamine in his apartment

       and (2) that the fire started in his apartment during and as a result of Wolf’s

       manufacture of methamphetamine. Additionally, Wolf’s NPLEx records

       indicate that Wolf had purchased large amounts of the methamphetamine

       precursor pseudoephedrine in the weeks prior to the fire. In fact, Wolf had

       reached the legal limit of pseudoephedrine allowed to be purchased by an

       individual and had twice been prohibited from purchasing additional amounts

       on March 27 and April 8, 2013, just weeks before the fire. Wolf’s

       pseudoephedrine purchase history corroborates Memmer’s testimony that Wolf

       had been producing methamphetamine at his apartment for approximately

       eight to ten weeks prior to the fire. Wolf made nine separate pseudoephedrine

       purchases in the months prior to the fire, the first of which was made on

       February 18, 2013, ten weeks before the fire.


[11]   Furthermore, when Wolf was being treated at the hospital following the fire, he

       gave a statement to Detective McDonald which was later contradicted in

       several respects. Wolf told McDonald that he arrived at Memmer’s apartment

       Court of Appeals of Indiana | Memorandum Decision 82A01-1410-CR-433 | May 15, 2015   Page 6 of 8
       on the morning of May 1, 2013, that Memmer was not at the apartment, and

       that Wolf took Memmer’s son T.M. to school. However, T.M. testified that

       Wolf stayed at the apartment the night before, that Memmer was home, that

       Memmer took T.M. to school, and that Wolf had never taken T.M. to school.

       Wolf also told Detective McDonald that although he and Memmer never called

       911 to report the fire, he did tell the attendant at the Laundromat to call 911.

       This statement was contradicted by the Laundromat attendant who testified

       that Wolf did not tell her to call 911 and that he only told her that there had

       been “a grease fire and he was asleep and that he was home alone.” Tr. p. 238.

       Clearly, Wolf was not home alone based on his own statements that he and

       Memmer attempted to extinguish the fire.


[12]   Wolf argues that the evidence is insufficient for several reasons: (1) Memmer’s

       testimony contradicted his initial statements to police; (2) Wolf’s NPLEx report

       does not show that he purchased any Claritin-D, which was the only

       pseudoephedrine medication present at the apartment; and (3) Wolf’s

       fingerprints were not found at the scene. Regardless of the fact that the State

       addressed these contentions at trial, Wolf’s arguments amount to no more than

       a request for this court to reweigh the evidence and reassess the Memmer’s

       credibility as a witness, which we will not do. Drane, 867 N.E.2d at 146. The

       jury heard Wolf’s arguments regarding a lack of fingerprint evidence and the

       alleged inconsistencies with Memmer’s statements. The jury, apparently, did

       not find those arguments persuasive. “The fact that an accomplice may not be

       completely trustworthy goes to the weight and credibility of his testimony,


       Court of Appeals of Indiana | Memorandum Decision 82A01-1410-CR-433 | May 15, 2015   Page 7 of 8
       which is entirely within the province of the jury and will not be reviewed upon

       appeal.” Gregory v. State, 885 N.E.2d 697, 705-06 (Ind. Ct. App. 2008) (citing

       Dixson v. State, 865 N.E.2d 704, 714 (Ind. Ct. App. 2007), trans. denied). In

       Gregory v. State, we held that testimony from Gregory’s co-defendant that the

       two had agreed to manufacture methamphetamine, combined with evidence

       that Gregory had purchased items commonly used to manufacture

       methamphetamine, was sufficient to support a conviction for dealing in

       methamphetamine. Id.


[13]   Again, this court considers only the probative evidence and reasonable

       inferences supporting the verdict. Drane, 867 N.E.2d at 146. That evidence

       includes witness testimony incriminating Wolf, Wolf’s NPLEx records, Wolf’s

       presence at the apartment during the fire, the presence of items belonging to

       Wolf at the apartment, and Wolf’s own contradicted statements to Detective

       McDonald and witnesses. Based on the facts supporting an inference of guilt,

       the jury’s decision was not unreasonable.


[14]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1410-CR-433 | May 15, 2015   Page 8 of 8
