      MEMORANDUM DECISION
                                                                    May 29 2015, 9:11 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
      John T. Wilson                                           Gregory F. Zoeller
      Anderson, Indiana                                        Attorney General of Indiana
                                                               Graham T. Youngs
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Tony Julian,                                             May 29, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               48A02-1407-CR-477
              v.                                               Appeal from the Madison Circuit
                                                               Court, the Honorable Thomas
                                                               Newman, Jr., Judge
      State of Indiana,
                                                               Trial Court Case No.
      Appellee-Plaintiff                                       48C03-1211-FB-2213




      Mathias, Judge.

[1]   Tony Julian (“Julian”) appeals his convictions in Madison Circuit Court for

      Class B felony dealing in methamphetamine, Class D felony possession of

      chemical reagents or precursors with the intent to manufacture a controlled

      substance, Class D felony maintaining a common nuisance, and Class A


      Court of Appeals of Indiana | Memorandum Decision 48A02-1407-CR-477 | May 29, 2015     Page 1 of 12
      misdemeanor false informing. Julian raises three issues on appeal, which we

      restate as the following two: 1) whether the trial court committed fundamental

      error by admitting into evidence items seized during the warrantless search of

      Julian’s apartment; and 2) whether the State presented sufficient evidence to

      prove that Julian constructively possessed the evidence seized during the search

      of his apartment.

                                    Facts and Procedural History

[2]   On November 28, 2012, Madison County Drug Task Force Officer Leann

      Dwiggins (“Officer Dwiggins”), who was investigating methamphetamine

      activity in Anderson, was attempting to serve an arrest warrant on Christopher

      Douglas (“Douglas”). Officer Dwiggins learned that Douglas might be hiding

      in an apartment located at 2325 Broadway.

[3]   Detective Cliff Cole (“Detective Cole”) proceeded to the apartment at that

      address, which was leased to Julian and described as an “upstairs apartment

      behind the Sunny Bunny.” Tr. p. 157. As Detective Cole approached the front

      door, he noticed a odor that he associated with the manufacture of

      methamphetamine. The detective knocked on the front door and announced his

      presence. Julian responded and identified himself without opening the door.

      Julian also told the Detective Cole that Douglas was not inside the apartment

      and denied the detective’s request to enter his apartment.


[4]   Given the danger inherent in manufacturing methamphetamine, Detective Cole

      determined that it was necessary to enter Julian’s apartment to ensure the safety


      Court of Appeals of Indiana | Memorandum Decision 48A02-1407-CR-477 | May 29, 2015   Page 2 of 12
      of the residents and neighbors. Another detective with the task force assured

      Detective Cole that it was permissible to enter the apartment due to the safety

      risks inherent in manufacturing methamphetamine.


[5]   Detective Cole returned to the front door of the apartment and knocked. He

      asked Julian to open the door. When Julian refused, the detective told him that

      he had three seconds to open the door before the detective forced it open.

[6]   Julian opened the door and Detective Cole entered the apartment. The

      chemical smell associated with the manufacture of methamphetamine was

      strong. Detective Cole and accompanying officers quickly located Douglas

      hiding inside the bathroom in the apartment. Julian stated that he was not

      aware that Douglas was inside his apartment.


[7]   Detective Cole continued to search the apartment because, due to the strength

      of the odor, he believed that either methamphetamine had been recently

      manufactured or an active methamphetamine lab was inside the residence. In a

      closet, Detective Cole located a backpack and a green storage tote. He opened

      the lid to the tote and unzipped the backpack. The detective found a

      methamphetamine kit, i.e. funnels, pliers, a hair dryer, and Coleman fuel. In

      the kitchen, the odor was especially strong, and the detective found a trash bag.

      Through the plastic bag, Detective Cole saw what he believed to be a “one pot”

      methamphetamine lab. Julian told the officers he did not know that the items

      were in his apartment.




      Court of Appeals of Indiana | Memorandum Decision 48A02-1407-CR-477 | May 29, 2015   Page 3 of 12
[8]    Julian then gave the officers permission to search the rest of the apartment, and

       they found 3.02 grams of methamphetamine in Julian’s bathroom where

       Douglas had been hiding. The officers also found stripped lithium batteries and

       casings, soiled coffee filters, a strainer, a plastic bottle with a tube running from

       it, lye, drain opener, more bottles of Coleman fuel, and rock salt. All of these

       items are commonly used in the manufacture of methamphetamine.

[9]    Julian was charged with Class B felony dealing in methamphetamine, Class D

       felony possession of methamphetamine, Class D felony possession of chemical

       reagents or precursors with the intent to manufacture a controlled substance,

       Class D felony maintaining a common nuisance, and Class A misdemeanor

       false informing. A jury trial was held on May 15, 2014.


[10]   At trial, Douglas testified that he and Julian had an agreement that Douglas

       could manufacture methamphetamine in his apartment in exchange for one-half

       gram of the resulting methamphetamine. Douglas stated that Julian was inside

       the apartment when he began the manufacturing process but left the apartment

       for approximately forty minutes. Julian testified that he allowed Douglas to stay

       in the apartment but did not know that Douglas was manufacturing

       methamphetamine until he returned to the apartment a few minutes before the

       police arrived.

[11]   The jury returned a guilty verdict on all counts except Class D felony possession

       of methamphetamine. The trial court ordered Julian to serve an aggregate ten-

       year sentence for his Class B felony dealing in methamphetamine, Class D


       Court of Appeals of Indiana | Memorandum Decision 48A02-1407-CR-477 | May 29, 2015   Page 4 of 12
       felony possession of chemical reagents or precursors with the intent to

       manufacture a controlled substance, Class D felony maintaining a common

       nuisance, and Class A misdemeanor false informing convictions. Julian now

       appeals.1

                                           I. Fundamental Error

[12]   Julian argues that the warrantless entry into his apartment violated his rights

       under the Fourth Amendment to the United States Constitution and Article

       One, Section Eleven of the Indiana Constitution. However, at trial, Julian

       affirmatively stated that he had no objection to the admission of the evidence

       seized during the warrantless search. An “‘appellant cannot on the one hand

       state at trial that he has no objection to the admission of evidence and thereafter

       in this Court claim such admission to be erroneous.’” Halliburton v. State, 1

       N.E.3d 670, 678-79 (Ind. 2013) (quoting Harrison v. State, 258 Ind. 359, 363, 281

       N.E.2d 98, 100 (1972)). Consequently, Julian has waived appellate review of

       his claim of error.2 See, e.g., Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010)

       (holding that defendant, who did not object to evidence upon introduction of

       evidence and who affirmatively stated he had no objection, waived review of

       his argument that evidence was unlawfully seized).

       1
         We held oral argument in this case at Cathedral High School in Indianapolis, Indiana on April 20, 2015.
       We extend our gratitude to the administration, faculty, and students for their generous hospitality. We would
       also like to congratulate the Cathedral High School “We the People” Team for being named Indiana State
       Champions for the 2014-15 school year. We also thank counsel for their written and oral advocacy.
       2
         In his appellate brief, Julian cites to Article One, Section Eleven and to the correct standard. However, he
       failed to present argument separate from his analysis of his Fourth Amendment claim. Therefore, he also
       waived his Article One, Section Eleven claim for the purposes of appeal. See Russell v. State, 993 N.E.2d 1176,
       1181 (Ind. Ct. App. 2013).



       Court of Appeals of Indiana | Memorandum Decision 48A02-1407-CR-477 | May 29, 2015                Page 5 of 12
[13]   However, “[a] claim that has been waived by a defendant’s failure to raise a

       contemporaneous objection can be reviewed on appeal if the reviewing court

       determines that a fundamental error occurred.” Id.; see also Konopasek v. State,

       946 N.E.2d 23, 27 (Ind. 2011) (stating that “‘[f]ailure to object to the admission

       of evidence at trial normally results in waiver and precludes appellate review

       unless its admission constitutes fundamental error’”) (citation omitted). “The

       fundamental error exception is ‘extremely narrow, and applies only when the

       error constitutes a blatant violation of basic principles, the harm or potential for

       harm is substantial, and the resulting error denies the defendant fundamental

       due process.’” Brown, 929 N.E.2d at 207 (citation omitted).


[14]   In his brief, Julian cites the correct authority discussing the fundamental error

       standard, but he argues only that “warrantless entry into the residence . . . and

       subsequent search was not only a violation of his constitutional rights under”

       the Fourth Amendment and Article One, Section Eleven, “but was

       fundamental error.” Appellant’s Br. at 7. Julian does not explain how

       admission of the evidence found during the search of his apartment denied him

       fundamental due process. Julian has therefore waived this argument for the

       purposes of appeal. See Ind. Appellate Rule 46(A)(8)(a); Cooper v. State, 854

       N.E.2d 831, 834 n.1 (Ind. 2006).


[15]   Waiver notwithstanding, Julian faces the heavy burden of demonstrating that

       the “alleged errors are so prejudicial to the defendant’s rights as to ‘make a fair

       trial impossible.’” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014) (quoting Benson

       v. State, 762 N.E.2d 748, 756 (Ind. 2002)).

       Court of Appeals of Indiana | Memorandum Decision 48A02-1407-CR-477 | May 29, 2015   Page 6 of 12
               In other words, to establish fundamental error, the defendant
               must show that, under the circumstances, the trial judge erred in
               not sua sponte raising the issue because alleged errors (a)
               constitute clearly blatant violations of basic and elementary
               principles of due process and (b) present an undeniable and
               substantial potential for harm. The element of such harm is not
               established by the fact of ultimate conviction but rather depends
               upon whether [the defendant’s] right to a fair trial was
               detrimentally affected by the denial of procedural opportunities
               for the ascertainment of truth to which he otherwise would have
               been entitled.
                                                       ***
               We stress that “[a] finding of fundamental error essentially
               means that the trial judge erred . . . by not acting when he or she
               should have. . . .” Fundamental error is meant to permit
               appellate courts a means to correct the most egregious and
               blatant trial errors that otherwise would have been procedurally
               barred, not to provide a second bite at the apple for defense
               counsel who ignorantly, carelessly, or strategically fail to preserve
               an error.
       Id. at 668 (internal citations omitted).


[16]   Detective Cole’s initial warrantless entry into Julian’s apartment did not violate

       the Fourth Amendment because the odor of methamphetamine manufacturing

       is an established exigent circumstance. See Holder v. State, 847 N.E.2d 930 (Ind.

       2006) (holding that if probable cause exists to believe that an occupied residence

       contains a methamphetamine laboratory, then exigent circumstances exist to

       permit a warrantless search of the residence to ensure the safety of the

       occupants). Even if we assume for the sake of argument that Detective Cole’s

       continued warrantless search of Julian’s apartment after his initial walk through

       did not yield any evidence of an active methamphetamine lab violated the

       Court of Appeals of Indiana | Memorandum Decision 48A02-1407-CR-477 | May 29, 2015   Page 7 of 12
       Fourth Amendment, under the facts and circumstances of this case, Julian was

       not denied the right to a fair trial.

[17]   Even though the evidence seized during the warrantless search significantly

       contributed to Julian’s conviction, Julian specifically declined to object to

       admission of the evidence. See Tr. p. 141 (referring to the photographs of the

       items found in Julian’s apartment and stating “I’m going to allow each and

       everyone [sic] of them in”); see also Wright v. State, 828 N.E.2d 904, 907 (Ind.

       2005) (stating that a party may not take advantage of an error that he invites).

       Julian declined to object because his defense at trial was that he was not aware

       that Douglas planned to manufacture methamphetamine in his apartment and

       he was not present in the apartment during the manufacture. Accordingly, any

       error in the admission of that evidence did not affect Julian’s right to

       “ascertainment of truth,” particularly in light of his chosen defense. For all of

       these reasons, we conclude that the trial court did not commit fundamental

       error by failing to sua sponte suppress the evidence seized during the warrantless

       search.


                                       II. Sufficient Evidence

[18]   Finally, Julian argues that the State failed to prove that he actually or

       constructively possessed the items used to manufacture methamphetamine that

       were discovered during the search of his apartment; therefore, his convictions

       are not supported by sufficient evidence. When the sufficiency of evidence is

       challenged, we neither reweigh the evidence nor judge the credibility of


       Court of Appeals of Indiana | Memorandum Decision 48A02-1407-CR-477 | May 29, 2015   Page 8 of 12
       witnesses. Chappell v. State, 966 N.E.2d 124, 129 (Ind. Ct. App. 2012) (citing

       McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)), trans. denied. Rather, we

       recognize the exclusive province of the trier of fact to weigh any conflicting

       evidence, and we consider only the probative evidence supporting the

       conviction and the reasonable inferences to be drawn therefrom. Id. If

       substantial evidence of probative value exists from which a reasonable trier of

       fact could have drawn the conclusion that the defendant was guilty of the crime

       charged beyond a reasonable doubt, then the verdict will not be disturbed.

       Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008).


[19]   On the date he committed the offenses, Julian’s crimes were statutorily defined

       as follows:

               Class B felony dealing in methamphetamine: “A person who:
               knowingly or intentionally manufactures . . . methamphetamine,
               pure or adulterated . . . commits dealing in methamphetamine[.]”
               And manufacturing 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.” I.C. §§
               35-48-4-1.1(a); 35-48-1-18.
               Class D felony maintaining a common nuisance: “A person
               who knowingly or intentionally maintains a building, structure,
               vehicle, or other place that is used one (1) or more times . . . by
               persons to unlawfully use controlled substances; or . . . for
               unlawfully” manufacturing, keeping, offering for sale, selling,
               delivering, or financing the delivery of controlled substances, or
               items of drug paraphernalia as described in IC 35-48-4-8.5;

       Court of Appeals of Indiana | Memorandum Decision 48A02-1407-CR-477 | May 29, 2015   Page 9 of 12
                commits maintaining a common nuisance[.]” I.C. § 35-48-4-
                13(b).
                Class D felony possession of chemical reagents or precursors:
                “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.” I.C. § 35-48-4-14.5(e).

       See also Appellant’s App. pp. 10-11.


[20]   A person may be convicted of an offense if he actually or constructively

       possesses the contraband. See Mack v. State, 23 N.E.3d 742, 759 (Ind. Ct. App.

       2014).


                Constructive possession is established by showing that the
                defendant has the intent and capability to maintain dominion
                and control over the contraband. . . . [W]hen possession of the
                premises is non-exclusive, the inference [of control] is not
                permitted absent some additional circumstances indicating
                knowledge of the presence of the contraband and the ability to
                control it. Among the recognized “additional circumstances” are:
                (1) incriminating statements by the defendant; (2) attempted
                flight or furtive gestures; (3) a drug manufacturing setting; (4)
                proximity of the defendant to the contraband; (5) contraband is
                in plain view; and (6) location of the contraband is in close
                proximity to items owned by the defendant.

       Id. And, “‘a residence is controlled by the person who lives in it, and that

       person may be found in control of any drugs’” or contraband discovered

       therein, “‘whether he is the owner, tenant, or merely an invitee.’” Id. at 758

       (quoting Allen v. State, 798 N.E.2d 490, 501 (Ind. Ct. App. 2003)).


[21]   Julian argues that the evidence is insufficient to support his convictions because

       he did not have exclusive possession of his apartment. Douglas was inside
       Court of Appeals of Indiana | Memorandum Decision 48A02-1407-CR-477 | May 29, 2015   Page 10 of 12
       Julian’s apartment, although with Julian’s consent. Also, Julian testified that

       left Douglas alone in the apartment for a significant period of time and returned

       home shortly before the police arrived.


[22]   However, Julian’s self-serving testimony was weighed against Douglas’s

       testimony that Julian allowed Douglas to use his apartment to “cook”

       methamphetamine, and in exchange, Douglas gave him a portion of the

       resulting methamphetamine. On the date the offenses were committed, Julian

       allowed Douglas to enter his apartment, and Douglas had a backpack and tote

       containing the chemicals and precursors necessary to “cook”

       methamphetamine. Julian was inside the apartment when Douglas began

       manufacturing and returned to the apartment approximately forty-five minutes

       later. When the officers arrived at Julian’s apartment just a few minutes after

       Julian returned home, the odor the officers associated with the manufacture of

       methamphetamine was strong. Therefore, the officers believed that either an

       active methamphetamine lab was in the apartment or methamphetamine had

       recently been manufactured.


[23]   At trial, Julian admitted that he knew that Douglas was a “meth cooker.” Tr. p.

       262. He also testified that he knew that Douglas had been manufacturing

       methamphetamine in his apartment “[a]t the time the police came.” Tr. p. 262.

       Julian also admitted that he lied to the officers when he told them that Douglas

       was not in his apartment.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1407-CR-477 | May 29, 2015   Page 11 of 12
[24]   Finally, Julian argues that mere possession of the chemicals reagents and

       precursors is not sufficient evidence to prove that he manufactured

       methamphetamine. However, the officers found methamphetamine in Julian’s

       bathroom, the odor associated with the manufacture of methamphetamine

       emanated from the apartment, and Detective Cole found a “one-pot”

       methamphetamine lab in the trash in the apartment.

[25]   For these reasons, we conclude that the State’s evidence establishing Julian’s

       control over the apartment, the agreement between Douglas and Julian,3 and

       Julian’s own admissions and inconsistent statements are sufficient evidence that

       Julian committed Class B felony dealing in methamphetamine, Class D felony

       possession of chemical reagents or precursors with the intent to manufacture a

       controlled substance, and Class D felony maintaining a common nuisance.


                                                     Conclusion

[26]   The trial court did not commit fundamental error by admitting into evidence

       the items seized during the warrantless search of Julian’s apartment. The

       evidence is sufficient to support Julian’s convictions.

[27]   Affirmed.


       Kirsch, J., and Bradford, J., concur.


       3
         The jury was instructed on accomplice liability at trial. See I.C. § 35-41-2-4 (“A person who knowingly or
       intentionally aids, induces, or causes another person to commit an offense commits that offense[.]”); Tr. p.
       308.



       Court of Appeals of Indiana | Memorandum Decision 48A02-1407-CR-477 | May 29, 2015               Page 12 of 12
