                                                                      Apr 21 2015, 10:00 am




      ATTORNEY FOR APPELLANT                                      ATTORNEY FOR APPELLEE
      Steven E. Ripstra                                           Gregory F. Zoeller
      Ripstra Law Office                                          Attorney General of Indiana
      Jasper, Indiana
                                                                  Brian Reitz
                                                                  Deputy Attorney General
                                                                  Indianapolis, Indiana



                                                   IN THE
           COURT OF APPEALS OF INDIANA

      Brian L. Harrison,                                         April 21, 2015

      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 74A01-1407-CR-328
              v.                                                 Appeal from the Spencer Circuit
                                                                 Court

      State of Indiana,                                          The Honorable Wayne A. Roell,
                                                                 Special Judge
      Appellee-Plaintiff.
                                                                 Cause No. 74C01-1301-FB-020




      Mathias, Judge.

[1]   Brian Lee Harrison (“Harrison”) was convicted in Spencer Circuit Court of Class

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

      anhydrous ammonia, Class D felony possession of chemical reagents or

      precursors with the intent to manufacture methamphetamine, and Class A

      misdemeanor possession of paraphernalia. Harrison also admitted to being an

      habitual offender and was sentenced to an aggregate term of thirteen years of
      Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015              Page 1 of 29
      incarceration. Harrison appeals and presents seven issues, which we reorder and

      restate as:

      I.      Whether the State presented sufficient evidence to support Harrison’s
              convictions;

      II.     Whether Harrison’s convictions for possession of ammonia and
              possession of precursors are lesser-included offenses of the greater offense
              of manufacturing methamphetamine;

      III.    Whether the trial court abused its discretion in admitting into evidence
              information from a mobile phone the police seized from Harrison’s car;

      IV.     Whether the trial court abused its discretion in refusing to give Harrison’s
              proffered jury instruction on an alibi defense and in instructing the jury
              with regard to the charged offense of possession of precursors;

      V.      Whether the trial court abused its discretion by admitting evidence
              regarding certain telephone calls, one of which was made by Harrison
              while he was in jail;

      VI.     Whether the trial court abused its discretion in permitting the prosecuting
              attorney to read language from a published opinion of this court during
              the State’s closing argument; and

      VII.    Whether the trial court abused its discretion when it admitted evidence of
              Harrison’s nickname, “Bam Bam.”

[2]   We reverse Harrison’s convictions for possession of anhydrous ammonia and

      possession of precursors as they constitute lesser-included offenses of the greater

      offense of manufacturing methamphetamine but affirm Harrison’s convictions

      for manufacturing methamphetamine and possession of paraphernalia.


                                      Facts and Procedural History

[3]   On January 28, 2013, Spencer County Sheriff’s Deputy Jim Taggart (“Deputy

      Taggart”) was driving his patrol car on a county road when he saw two vehicles,

      a black Pontiac and a white pickup truck, stopped in the road. The two vehicles
      Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015   Page 2 of 29
      drew Deputy Taggart’s attention, as he thought that the truck may have collided

      with the rear-end of the Pontiac. Instead, the pickup drove away and turned right

      at a nearby stop sign. Deputy Taggart drove past the Pontiac and observed it in

      his rear-view mirror. As he did so, the Pontiac quickly accelerated in reverse up a

      hill. The driver of the Pontiac lost control of the car, drove it into a ditch, and hit

      a log, which bounced the car into the air. The car then came to a stop in the

      ditch. Deputy Taggart turned his patrol car around to approach the crashed

      Pontiac.


[4]   A passenger in the car, later identified as Jason Gee (“Gee”), exited the car, ran

      across the road, and disappeared into a wooded area. The driver of the car, later

      identified as Harrison, managed to climb out of the driver’s side door, which was

      wedged against the ditch, and also fled into the wooded area.


[5]   Deputy Taggart exited his patrol car, walked toward the Pontiac, and saw smoke

      coming from the front passenger floorboard. He then saw a small fire located

      next to a tank in the car and a clear container with a white powder inside.

      Deputy Taggart put out the fire. He then noticed that a mobile phone, located in

      the console, had been ringing. Deputy Taggart opened the phone and read to

      dispatch the numbers that had been calling the phone in the car. Deputy Taggart

      also looked through the text messages on the phone.

[6]   Deputy Taggart then began to search the vehicle, where he found a bag

      containing a scale and a leather wallet. The wallet contained an Indiana

      identification card, an Indiana Department of Correction card, a debit card, a


      Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015   Page 3 of 29
      casino card, and a resort card, all of which identified Harrison. A spoon and

      cigarette rolling papers were also found in the car.

[7]   Indiana State Police Trooper Ted Clamme (“Trooper Clamme”) of the

      clandestine laboratory clean-up team was dispatched to the scene. Trooper

      Clamme described what he saw in the vehicle as a “very early stage”

      methamphetamine lab, using the “Nazi method.” Tr. P. 209. Trooper Clamme

      found in the car several items used in the manufacture of methamphetamine,

      including: 24.31 grams of pseudoephedrine, crushed pseudoephedrine pill

      powder, a tank of ammonia, a bottle of “Heet” (an isopropyl alcohol-based anti-

      freeze agent), syringes, a glass jar, plastic tubing, and a measuring spoon.

      Trooper Clamme explained that every item needed for the manufacture of

      methamphetamine was present, save lithium. However, he explained that the

      lithium could have been destroyed in the fire.

[8]   In the meantime, Kati Richard (“Richard”), the 911 director for the Spencer

      County Sheriff’s Department, was at home when she received a telephone call

      from dispatch to warn her that her house was near the area where the suspects in

      the Pontiac had fled. Shortly thereafter, Richard’s dog began to bark; she looked

      outside and saw Harrison sitting in the woods near her house.1 Richard then

      called dispatch to tell them she had found one of the potential suspects.

      However, Harrison was not apprehended at that time.



      1
          Richard’s brother was a childhood friend of Harrison’s.



      Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015   Page 4 of 29
[9]    Gee was taken into custody later that day. Harrison was arrested at a later date

       and eventually charged with Class B felony manufacture of methamphetamine,

       Class D felony illegal possession of anhydrous ammonia, Class D felony

       possession of precursors with intent to manufacture methamphetamine, and

       Class A misdemeanor possession of paraphernalia. The State also alleged that

       Harrison was an habitual offender.

[10]   At trial, the State introduced into evidence, over Harrison’s objection, a recorded

       telephone conversation he had with Gee while in jail. In the call, Harrison stated,

       “I’m kind of hurt, man but — got f**king ammonia. I think I have ammonia in

       my lungs.” Appellant’s App. p. 243. Harrison was also occasionally referred to at

       trial by his nickname, “Bam Bam.” Tr. pp. 7, 9, 152, 166-68, 170-71. Harrison

       objected to some of these references but not all. See Tr. pp. 152, 170-71. At the

       close of the evidence, the trial court read the pattern jury instruction regarding

       the charged crime of possession of precursors, to which Harrison objected. The

       trial court also refused to read to the jury Harrison’s tendered alibi instruction.

       During the State’s closing argument, the trial court overruled Harrison’s

       objection to the prosecuting attorney reading a portion of this court’s opinion in

       Dawson v. State, 786 N.E.2d 742 (Ind. Ct. App. 2003), which dealt with the

       definition of manufacturing methamphetamine. The jury found Harrison guilty

       as charged, and the trial court subsequently sentenced Harrison to an aggregate




       Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015   Page 5 of 29
       term of thirteen years of incarceration.2 Harrison now appeals.


                                       I. Sufficiency of the Evidence

[11]   Harrison first claims that the evidence is insufficient to support his conviction for

       manufacturing methamphetamine.3 When reviewing a claim that the evidence is

       insufficient to support a conviction, we neither reweigh the evidence nor judge

       the credibility of the witnesses; instead, we respect the exclusive province of the

       trier of fact to weigh any conflicting evidence. McHenry v. State, 820 N.E.2d 124,

       126 (Ind. 2005). We consider only the probative evidence supporting the verdict

       and any reasonable inferences which may be drawn from this evidence. Id. We

       will affirm if the probative evidence and reasonable inferences drawn from the

       evidence could have allowed a reasonable trier of fact to find the defendant guilty

       beyond a reasonable doubt. Id.


       A. Manufacturing Methamphetamine

[12]   The statute defining the crime of manufacturing methamphetamine provides in

       relevant part that “(a) A person who . . . knowingly or intentionally . . .




       2
         Specifically, the trial court sentenced Harrison to the advisory term of ten years on his conviction for
       Class B felony manufacturing methamphetamine, the advisory term of one and one-half years on the
       Class D felony convictions for possession of precursors and possession of anhydrous ammonia, and one
       year on the conviction for Class A misdemeanor possession of paraphernalia. The trial court ordered all
       of the sentences to run concurrently. The trial court also imposed a three-year sentence for the habitual
       offender adjudication, which it ordered be served consecutively to the other sentences.
       3
         Harrison claims generally that the evidence is insufficient to support his convictions. However, he
       focuses his argument solely on the sufficiency of the evidence supporting his conviction for
       manufacturing methamphetamine.



       Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015                  Page 6 of 29
       manufactures . . . methamphetamine, pure or adulterated . . . commits dealing in

       methamphetamine, a Class B felony[.]” Ind. Code § 35-48-4-1.1(a).4

[13]   Harrison claims that he was never found in actual possession of any of the items

       found in the car and that the State therefore was required to prove constructive

       possession. Harrison, however, was not charged with or convicted of possession of

       methamphetamine under section 35-48-4-1.1(a)(2); he was charged with and

       convicted of manufacturing methamphetamine under section 35-48-4-1.1(a)(1).

       See Appellant’s App. p. 13 (“Harrison did knowingly or intentionally

       manufacture methamphetamine[.]”); Appellant’s App. p. 216 (final instruction

       setting forth elements of manufacturing methamphetamine).


[14]   Indiana Code Section 35-48-1-18 defines “manufacture” 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.

       No statutory requirement states that the manufacturing process must be

       completed or that a final product must be present before it applies. Vanzyll v.

       State, 978 N.E.2d 511, 518 (Ind. Ct. App. 2012); Bush v. State, 772 N.E.2d 1020,

       1022-23 (Ind. Ct. App. 2002).



       4
           We refer to the version of the statute in effect when Harrison committed his crimes.



       Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015               Page 7 of 29
[15]   Here, Harrison’s mobile phone, wallet, and identification were located inside the

       car. The police found in the car a total of 24.31 grams of pseudoephedrine,

       crushed pseudoephedrine pill powder, a tank of ammonia, a bottle of “Heet,”

       syringes, a glass jar, plastic tubing, and a measuring spoon, constituting every

       methamphetamine precursor except lithium. Trooper Clamme identified the set

       up in the car as an early-stage methamphetamine lab. From this circumstantial

       evidence, the jury could reasonably conclude that Harrison manufactured

       methamphetamine, even though no final product was present. See Bush, 772

       N.E.2d at 1022-23.


       B. Constructive Possession of Precursors

[16]   To the extent that Harrison’s argument regarding constructive possession is

       directed at his conviction for possession of precursors, sufficient evidence

       sufficient supports a finding that Harrison constructively possessed the

       precursors. Constructive possession is established by showing that the defendant

       has both the intent and capability to maintain dominion and control over the

       contraband. Floyd v. State, 791 N.E.2d 206, 210-11 (Ind. Ct. App. 2003), trans.

       denied. In cases where the accused has exclusive possession of the premises on

       which the contraband is found, an inference is permitted that he or she knew of

       the presence of contraband and was capable of controlling it. Id. However, when

       possession of the premises is non-exclusive, this inference is permitted only if

       some additional circumstances indicate the defendant’s knowledge of the

       presence of the contraband and the ability to control it. Id. Among the

       recognized additional circumstances are: (1) incriminating statements made by

       Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015   Page 8 of 29
       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. Id.


[17]   Here, the precursors were found in Harrison’s vehicle, but Gee was also in the

       car with him. Thus, Harrison’s possession of the premises was non-exclusive,

       and additional circumstances must indicate Harrison’s knowledge of the

       presence of the contraband and the ability to control it. See id. Here, these

       circumstances include: (1) Harrison made statements that he had ammonia in his

       lungs; (2) Harrison fled the vehicle as Deputy Taggart approached it; (3) the

       precursors were found in an early-stage methamphetamine lab; (4) the

       methamphetamine lab was in plain view in the front floorboard of the vehicle;

       and (5) Harrison’s mobile phone and wallet were found in close proximity to the

       methamphetamine lab. From this, the jury could reasonable conclude that

       Harrison constructively possessed the precursors found in the vehicle.

                                        II. Lesser Included Offenses

[18]   Harrison also claims that, even if the evidence was sufficient to support his

       conviction for manufacturing methamphetamine, his convictions for possession

       of anhydrous ammonia and possession of precursors with the intent to

       manufacture are lesser-included offenses that must be vacated.


[19]   Indiana Code section 35-38-1-6 provides that if a defendant is charged with an

       offense and an included offense in separate counts and is found guilty of both


       Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015   Page 9 of 29
       counts, “judgment and sentence may not be entered against the defendant for the

       included offense.” An “included offense” is defined as an offense that:

               (1) is established by proof of the same material elements or less
               than all the material elements required to establish the commission
               of the offense charged;
               (2) consists of an attempt to commit the offense charged or an
               offense otherwise included therein; or
               (3) differs from the offense charged only in the respect that a less
               serious harm or risk of harm to the same person, property, or
               public interest, or a lesser kind of culpability, is required to
               establish its commission.

       Ind. Code § 35-41-1-16. A lesser-included offense is necessarily included within

       the greater offense if it is impossible to commit the greater offense without first

       having committed the lesser offense. Bush, 772 N.E.2d at 1023-24. If the

       evidence indicates that one crime is independent of another crime, it is not an

       included offense. Iddings v. State, 772 N.E.2d 1006, 1017 (Ind. Ct. App. 2002).


[20]   The possession of precursors can be a lesser-included offense of the greater crime

       of manufacturing methamphetamine. As we explained in Bush:

               We accept that it is impossible to knowingly or intentionally
               manufacture methamphetamine without first possessing the
               chemical precursors of methamphetamine with the intent to make
               the drug. Methamphetamine cannot be conjured up out of thin
               air. The sole practical difference between these two offenses is
               that one may be guilty of possessing chemical precursors with
               intent to manufacture without actually beginning the
               manufacturing process, whereas the manufacturing process must,
               at the very least, have been started by a defendant in order to be
               found guilty of manufacturing methamphetamine.

       Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015   Page 10 of 29
       772 N.E.2d at 1024.


[21]   In Bush, we held that the defendant’s conviction for possession of precursors had

       to be vacated because no direct evidence recovered indicated that Bush had yet

       succeeded in completing a “batch” of the drug. Id. Thus, we held that the same

       evidence establishing Bush knowingly or intentionally manufactured

       methamphetamine also established that he possessed methamphetamine

       precursors with the intent to manufacture the drug. Id. “It [was] impossible to

       fairly state that the manufacturing and possession of precursors offenses in [Bush]

       were clearly independent of each other.” Id.


[22]   In contrast, in Iddings, a case handed down the same day as Bush, we came to the

       contrary conclusion. In Iddings, the police recovered completed

       methamphetamine at Iddings’ home in addition to precursors in large quantities

       and in proximity to other items associated with manufacturing

       methamphetamine manufacturing. 772 N.E.2d at 1017. Thus, evidence existed

       that Iddings had already manufactured methamphetamine and possessed the

       chemical precursors of methamphetamine with the intent to manufacture more

       of the drug, such that his conviction for possession of precursors was not

       included in his conviction for manufacturing methamphetamine. Id.


[23]   In the present case, we agree with Harrison that the facts of the present case are

       closer to those in Bush than in Iddings. Here, unlike in Iddings, no evidence of a

       completed manufacture of methamphetamine existed. Instead, the police found

       an early-stage methamphetamine manufacturing process that contained no actual


       Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015   Page 11 of 29
       methamphetamine. Thus, as in Bush, it is impossible to fairly state that the

       manufacturing and possession of precursors offenses are clearly independent of

       each other. We therefore reverse Harrison’s convictions for possession of

       anhydrous ammonia and possession of precursors and remand with instructions

       that the trial court vacate the convictions and sentences on these counts.


                   II. Admission of Evidence Discovered on Mobile Phone

[24]   Harrison also claims that the trial court abused its discretion in admitting into

       evidence information gleaned from the mobile phone found in the console of

       Harrison’s car. When a defendant challenges the constitutionality of a search

       following a completed trial, the issue is one of whether the trial court properly

       admitted the evidence. Casady v. State, 934 N.E.2d 1181, 1188 (Ind. Ct. App.

       2010). Questions regarding the admission of evidence are entrusted to the sound

       discretion of the trial court. Fuqua v. State, 984 N.E.2d 709, 713-14 (Ind. Ct. App.

       2013), trans. denied. Accordingly, we review the court’s decision on appeal only

       for an abuse of that discretion. Id. The trial court abuses its discretion only if its

       decision regarding the admission of evidence is clearly against the logic and

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

       the law. Id. Regardless of whether the challenge is made through a pretrial

       motion to suppress or by an objection at trial, our review of rulings on the

       admissibility of evidence is essentially the same: we do not reweigh the evidence,

       and we consider conflicting evidence in a light most favorable to the trial court’s

       ruling, but we also consider any undisputed evidence that is favorable to the

       defendant. Id.

       Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015   Page 12 of 29
[25]   Both the Fourth Amendment to the United States Constitution and Article I,

       Section 11 of the Indiana Constitution provide that “the right of the people to be

       secure in their persons, houses, papers and effects, against unreasonable searches

       and seizures[.]” U.S. Const. Amend. IV; Ind. Const., art. 1 § 11. These

       protections against unreasonable governmental searches and seizures are a

       principal mode of discouraging lawless police conduct. Friend v. State, 858

       N.E.2d 646, 650 (Ind. Ct. App. 2006) (citing Jones v. State, 655 N.E.2d 49, 54

       (Ind. 1995); Terry v. Ohio, 392 U.S. 1, 12 (1968)). When the police conduct a

       warrantless search, the State bears the burden of establishing that an exception to

       the warrant requirement is applicable. Id.


[26]   It has long been held that abandoned property is not subject to Fourth

       Amendment protection. Campbell v. State, 841 N.E.2d 624, 627 (Ind. Ct. App.

       2006); Wilson v. State, 825 N.E.2d 49, 51 (Ind. Ct. App. 2005); Miller v. State, 498

       N.E.2d 53, 55 (Ind. Ct. App. 1986), trans. denied. The same is true under Article

       1, Section 11 of the Indiana Constitution. See Campbell, 841 N.E.2d at 627.

       However, this rule is inapplicable if the abandonment occurs after an improper

       detention.

[27]   Here, it is clear that both Harrison and Gee abandoned the car and fled into the

       woods upon seeing Deputy Taggart. Nor did Harrison abandon his property after

       an improper detention; they fled as Deputy Taggart approached to investigate the

       wreck of the Pontiac in the ditch. Accordingly, Harrison cannot now claim that

       he had a protectable interest in the abandoned mobile phone. See Campbell, 841

       N.E.2d at 630 (holding that defendant abandoned handgun underneath car

       Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015   Page 13 of 29
       before he was seized and therefore the handgun was not subject to protections of

       Fourth Amendment or Article 1, Section 11); People v. Daggs, 34 Cal. Rptr. 3d

       649, 651 (Cal. Ct. App. 2005) (holding that defendant abandoned cell phone

       which he left behind in a store after fleeing when being confronted for attempting

       to steal merchandise and therefore police did not unconstitutionally search phone

       to determine the owner of the phone); United States v. Washington, 536 Fed. Appx.

       810, 812 (10th Cir. 2013) (holding that defendant had no reasonable expectation

       of privacy in cellular phone left in motel room), cert. denied, 134 S. Ct. 1328

       (2014).

                                             III. Jury Instructions

[28]   Harrison next argues that the trial court erred in instructing the jury. The

       instruction of the jury lies within the trial court’s sound discretion, and we review

       the trial court decisions with regard to jury instructions only for an abuse of that

       discretion. Shelby v. State, 986 N.E.2d 345, 360 (Ind. Ct. App. 2013), trans. denied.

       To constitute an abuse of discretion, an instruction that is given to the jury must

       be erroneous, and the instructions viewed as a whole must misstate the law or

       otherwise mislead the jury. Winkleman v. State, 22 N.E.3d 844, 849 (Ind. Ct.

       App. 2014), trans. denied. In determining whether the trial court abused its

       discretion when it refused to give a tendered instruction we consider: (1) whether

       the instruction correctly states the law; (2) whether there is evidence in the record

       supporting the instruction; and (3) whether the substance of the instruction is

       covered by other instructions. Shelby, 986 N.E.2d at 360. When a defendant seeks

       reversal based on instructional error, he must demonstrate a reasonable

       Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015   Page 14 of 29
       probability that substantial rights of the complaining party have been adversely

       affected. Id.


       A. Precursors Instruction

[29]   Harrison first challenges the propriety of the instruction given by the trial court

       regarding possession of precursors. This instruction stated:


               The crime of possessing chemical reagents or precursors with the
               intent to manufacture a controlled substance is defined by statute
               as follows:
               A person who possesses two or more chemical reagents or
               precursors with the intent to manufacture a controlled substance
               commits a Class D felony.
               Before you may convict the Defendant, the State must have
               proved each of the following beyond a reasonable doubt:
                    1. The Defendant;  
                    2. possessed 2 or more of the following: pseudoephedrine,
                    which the Court instructs you is a chemical reagent, the salts,
                    isomers, and salts of isomers of a substance identified in
                    subdivisions (1) through (3), which the Court instructs you is a
                    chemical reagent, anhydrous ammonia or ammonia solution (as
                    defined in I.C. 22-11-20-1), which the Court instructs you is a
                    chemical reagent, organic solvents, which the Court instructs you is
                    a chemical reagent, or hydrochloric acid, which the Court instructs
                    you is a chemical reagent.  
                    3. with the intent to manufacture methamphetamine.
               If the State failed to prove each of these elements beyond a
               reasonable doubt, you should find the Defendant not guilty of
               possession chemical reagents or precursors with intent to
               manufacture a controlled substance, as Class D felony.




       Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015   Page 15 of 29
       Appellant’s App. p. 220 (emphasis added). Harrison claims that this instruction

       improperly infringed upon the right of the jury to determine both the law and the

       facts with regard to the definition of a precursor. We disagree.


[30]   We first note that the instruction, which is taken from the Indiana pattern jury

       instruction,5 is a correct statement of the law. Indiana Code section 35-48-4-14.5

       defines what substances are precursors. Included among these are:

       pseudoephedrine, or the salt, isomer, or salt of isomer of pseudoephedrine;

       anhydrous ammonia or ammonia solution; and organic solvents. See I.C. § 35-

       48-4-14.5(a)(2), (4), (5), (6). Thus, the definition of a chemical precursor is

       established by statute, not the jury. See Russell v. State, 182 Ind. App. 386, 401,

       395 N.E.2d 791, 800-01 (1979) (noting that statute defined marijuana as a

       controlled substance and that trial court therefore had a duty to instruct the jury

       that marijuana was a controlled substance). The question for the jury was not

       whether pseudoephedrine, organic solvents, or ammonia are controlled

       substances; this is established as a matter of law by statute. The question for the

       jury was whether Harrison possessed two or more of those substances with the

       intent to manufacture methamphetamine.




       5
         The State appears to argue that the instruction must be a correct statement of the law because it was
       taken from the Indiana Pattern Jury Instructions. We note, however, that pattern jury instructions have
       not been formally approved by the Indiana Supreme Court, and certain pattern instructions have even
       been held to not be a correct statement of the law. See Clay City Consol. School Corp. v. Timberman, 918
       N.E.2d 292, 295 (Ind. 2009); Boney v. State, 880 N.E.2d 279, 294 (Ind. Ct. App. 2008). Still, pattern jury
       instructions are given preferential treatment during litigation, and the preferred practice is to use the
       pattern instructions. See Timberman, 918 N.E.2d at 295; Boney, 880 N.E.2d at 294.



       Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015                 Page 16 of 29
[31]   With regard to Harrison’s argument that this impedes upon the jury’s right to

       determine the law and the facts in a criminal case, we note that the jury was

       properly instructed with regard to this role. See Appellant’s App. p. 215. Our

       supreme court has held that the jury’s right to determine both the law and the

       facts does not mean that the jury may ignore the law. See Holden v. State, 788

       N.E.2d 1253, 1255 (Ind. 2003) (noting that it is improper for a court to instruct a

       jury that they have a right to disregard the law and that, notwithstanding Article

       1, Section 19 of the Indiana Constitution, a jury has no more right to ignore the

       law than it has to ignore the facts in a case), aff’d on reh’g, 799 N.E.2d 538.


[32]   Accordingly, we are unable to conclude that the trial court abused its discretion

       in instructing the jury with regard to chemical precursors.


       B. Tendered Alibi Instruction

[33]   Harrison also claims that the trial court abused its discretion in refusing to give to

       the jury his tendered alibi instruction, which stated: “you have heard evidence

       that at the time of the crime charged the accused was at a different place so

       remote or distan[t] that he could not have committed the crime. [The] State must

       prove beyond a reasonable doubt the accused’s presence at the time and place of

       the crime.” Tr. p. 524.6 Regardless of whether this is a correct statement of the

       law, we conclude that no evidence in the record supports the instruction and that

       the substance of the instruction was covered by other instructions.


       6
         Harrison’s proffered instruction was not included in the Appellant’s Appendix, but the trial court read
       the proposed instruction into the transcript.



       Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015                Page 17 of 29
[34]   With regard to the evidence supporting the instruction, Harrison simply notes

       that the charging information did not set forth the specific time of day that the

       crime took place and that the State’s witnesses who identified him at or near the

       scene of the crime did not establish the time of day. This, however, ignores the

       fact that the parties stipulated that the incident occurred at 12:30 p.m. Tr. pp.

       494-95. As Harrison admits, the State presented evidence indicating that he was

       at the scene of the crime.


[35]   Harrison claims evidence existed supporting the giving of an alibi instruction,

       referring to his notice of alibi and the testimony of his ex-girlfriend Tasha

       Hatfield (“Hatfield”). According to the notice of alibi, Harrison and Hatfield

       were in Owensboro, Kentucky at the time of the crime. Specifically, the notice

       claimed that Harrison drove to Owensboro at approximately noon to take

       Hatfield home from the hospital, then drove her to her place of employment,

       stopped to eat in Owensboro, drove to Rockport where Harrison filled

       prescriptions, then returned to Hatfield’s home in Grandview, Indiana, where

       they picked up Hatfield’s daughter at the school bus stop at 3:20 p.m.


[36]   At trial, however, Hatfield did not corroborate the claims made in the notice of

       alibi. Hatfield testified that she fainted at work on the day of the crime and was

       taken to the hospital. She also stated that Harrison picked her up from the

       hospital and that they filled a prescription at approximately 10:50 a.m. Harrison

       then drove her home, which was approximately ten minutes away. She claimed

       that she and Harrison fell asleep at approximately 11:30 a.m., and that when she

       awoke at approximately 2:30 p.m., Harrison was not there. Even if this evidence

       Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015   Page 18 of 29
       were credited, it does not mean that Harrison could not have been at the scene of

       the crime at 12:30 p.m. while Hatfield was asleep. Under these facts and

       circumstances, we cannot say evidence supported the giving of Harrison’s

       tendered alibi instruction.

[37]   Furthermore, other given instructions adequately explained to the jury that the

       State had to prove beyond a reasonable doubt that it was Harrison who was at

       the scene of the wrecked Pontiac, manufacturing methamphetamine. The jury

       was instructed that Harrison was presumed innocent, that the State had to prove

       each and every element of the charged crimes beyond a reasonable doubt, and

       that Harrison was alleged to have knowingly or intentionally committed the

       crimes on or about January 28, 2013. Thus, we cannot say that the trial court

       abused its discretion in concluding that the instructions given to the jury

       adequately explained the State’s burden to prove that Harrison was present at the

       scene of the crimes at approximately 12:30 p.m. on January 28, 2013, which

       necessarily means that the State had to prove that Harrison was not in

       Owensboro or otherwise with Hatfield.


[38]   In short, the trial court did not abuse its discretion in instructing the jury.

                        IV. Admission of Recorded Jail Telephone Calls

[39]   Harrison next argues that the trial court erred in admitting evidence regarding

       jailhouse telephone calls made between him and Gee and between Hatfield and

       Steven Pointer (“Pointer”), an inmate at the jail. Again, questions regarding the

       admission of evidence are entrusted to the sound discretion of the trial court, and


       Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015   Page 19 of 29
       we review the trial court’s decision only for an abuse of that discretion. Fuqua,

       984 N.E.2d at 713-14. The trial court abuses its discretion only if its decision

       regarding the admission of evidence is clearly against the logic and effect of the

       facts and circumstances before it, or if the court has misinterpreted the law. Id.


       A. Call Between Hatfield and Pointer

[40]   Harrison first complains of the admission of evidence regarding a telephone call

       made between his ex-girlfriend, Hatfield, and Pointer, another inmate at the jail.

       A recording of this call was not admitted; instead, the State asked Hatfield if she

       remembered certain exchanges with Pointer, specifically:


               Mr. Pointer said to you “What’s up?” On the call you say “Oh
               nothing. Been running from the po-po all day.” He said “Running
               from the po-po?” You said “Yeah, they got Bams [i.e., Harrison]
               posted up. They ain’t got him yet, but they’re close.” He said
               “They got him posted up?” And you said “Yeah, but I can’t talk
               about it no more. They’re in - they’re on them deep.” Do you
               remember that conversation with Mr. Pointer?

       Tr. p. 396. Hatfield claimed that she did not recall this conversation clearly and

       denied that she was running from the police. The State also later asked Hatfield if

       she remembered telling Pointer, “Hey, Gee’s in there, but I got the other one. I

       got mine with me.” Tr. p. 398.

[41]   On appeal, Harrison claims that the admission of these statements violated the

       rule against hearsay and the Confrontation Clause of the Sixth Amendment to

       the United States Constitution.




       Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015   Page 20 of 29
[42]   Hearsay is defined as “(1) a statement that is not made by the declarant while

       testifying at trial or hearing; and (2) is offered in evidence to prove the truth of

       the matter asserted. Ind. Evidence Rule 801(c); see also Amos v. State, 896 N.E.2d

       1163, 1168 (Ind. Ct. App. 2008). Hearsay is generally inadmissible. Amos, 896

       N.E.2d at 1168 (citing Ind. Evidence Rule 802).


[43]   The State claims generally that jailhouse phone calls are generally admissible. See

       King v. State, 985 N.E.2d 755, 759 (Ind. Ct. App. 2013) (“Generally, recordings

       of telephone calls made from jail are admissible when the defendant discusses the

       crime for which he is incarcerated.”), trans. denied. However, the telephone

       conversation between Hatfield and Pointer is not a recording of a conversation

       where the defendant discussed the crime for which he was incarcerated.


[44]   Moreover, it is clear that Hatfield’s out-of-court statements were introduced in

       order to prove the truth of the matter asserted, i.e., that she and/or Harrison had

       been running from the police and that Gee had been caught by the police. The

       State offers no argument as to why these statements are subject to any hearsay

       exception, nor are we aware of any. Accordingly, we must conclude that these

       statements were hearsay and that the trial court abused its discretion in admitting

       them into evidence.

[45]   However, this does not mean that Harrison’s convictions must be reversed. We

       will not reverse a defendant’s conviction if the error was harmless. Teague v. State,

       978 N.E.2d 1183, 1188-89 (Ind. Ct. App. 2012) (citing Turner v. State, 953 N.E.2d

       1039, 1059 (Ind. 2011)). An error is harmless if substantial independent evidence


       Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015   Page 21 of 29
       of guilt satisfies the reviewing court that no substantial likelihood exists that the

       challenged evidence contributed to the conviction. Id. Generally, errors in the

       admission of evidence are to be disregarded unless they affect the substantial

       rights of a party. Id. If the erroneously admitted evidence was cumulative of

       other evidence, the admission is harmless error for which we will not reverse a

       conviction. Id. (citing Lehman v. State, 926 N.E.2d 35, 37 (Ind. Ct. App. 2010)).


[46]   Here, the admission of the evidence regarding Hatfield’s telephone conversation

       with Pointer was cumulative of other admitted evidence and therefore harmless.

       Deputy Taggart testified that a man matching Harrison’s description fled from

       the crashed Pontiac, and Harrison’s wallet, identification cards, and telephone

       were found inside the car. Richard, a woman who had known Harrison for

       years, saw Harrison hiding in the nearby woods shortly after Harrison fled the

       scene of the crash. Under these facts and circumstances, we conclude that the

       evidence regarding Hatfield’s conversation with Pointer was harmless error.7


       B. Call Between Harrison and Gee

[47]   Harrison also claims that the trial court abused its discretion in admitting into

       evidence the recorded telephone conversation between Harrison and Gee while



       7
         We also reject Harrison’s claim that the admission of this evidence violated his rights under the
       Confrontation Clause. Harrison was able to cross-examine Hatfield regarding her statements; thus, no
       confrontation issue exists. Pointer’s side of the conversation was not only trivial and harmless, but also
       non-testimonial. See King, 985 N.E.2d at 758 (noting that a testimonial statement is one where the
       primary purpose of the conversation was to prove past events potentially relevant to later criminal
       proceedings).




       Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015                  Page 22 of 29
       Harrison was in jail. Harrison presents numerous arguments as to why this

       recording should not have been admitted.

[48]   Harrison first briefly claims no foundation exists for the admission of the

       recording. “To lay a foundation for the admission of evidence, the proponent of

       the evidence must show that it has been authenticated.” Pavlovich v. State, 6

       N.E.3d 969, 976 (Ind. Ct. App. 2014), trans. denied. Authentication of an exhibit

       can be established by either direct or circumstantial evidence. Id. Absolute proof

       of authenticity is not required, and the proponent of the evidence need establish

       only that a reasonable probability that the document is what it is claimed to be.

       Id. Once this reasonable probability is shown, any inconclusiveness regarding the

       exhibit’s connection with the events at issue goes to the exhibit’s weight, not its

       admissibility. Id.


[49]   Here, Richards identified the recording as one taken at the jail on the relevant

       date, and Gee’s girlfriend, Marriah Barrett (“Barrett”) testified that the recording

       was of a call between Harrison and Gee. This is sufficient to lay a foundation for

       the admission of the recording.8


[50]   Harrison also contends that the statements on the tapes constitute inadmissible

       hearsay. Harrison’s statements on the tape, by definition of Evidence Rule

       801(d)(2), are not hearsay, even if offered to prove the truth of the matter



       8
         Harrison briefly mentions the Federal Wiretap Act and the Indiana Wiretap Act but makes no
       cognizable argument that the jail telephone calls violated either act.



       Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015           Page 23 of 29
       asserted. See Banks v. State, 761 N.E.2d 403, 406 (Ind. 2002) (“A party’s own

       statement offered against that party is not hearsay.”) (citing Evid. R. 801(d)(2)).

       Gee’s statements in the recording are relatively innocuous. The only statement

       that might be harmful to Harrison was Gee’s reply of “Me, too,” when Harrison

       stated that he had “ammonia in [his] lungs.” Tr. p. 243. To the extent that this

       was offered to prove the truth of the matter asserted—that Gee had ammonia in

       his lungs—we cannot say that it affected Harrison’s substantial rights. This is

       especially true given the substantial evidence identifying Harrison as the one who

       was in the car where the methamphetamine manufacturing was taking place: the

       car in which the methamphetamine lab was found belonged to Harrison, his

       wallet, identification, and telephone were inside the car, Deputy Taggart saw a

       person matching Harrison’s description flee the car, and Richard saw Harrison

       hiding in the nearby woods shortly after Harrison fled.

[51]   Harrison also claims that the admission of the recording violated his right to

       confront the witnesses against him. This can only refer to Gee’s statements on

       the recording. Again, however, most of Gee’s statements were innocuous, and

       the prejudicial statement regarding the ammonia in his lungs is insufficient to

       require reversal, even if it were a testimonial statement.9




       9
         The record does not indicate that Gee’s statement was testimonial, i.e., made to prove past events
       potentially relevant to later criminal proceedings. See King, 985 N.E.2d at 758.



       Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015               Page 24 of 29
                    V. Prosecutor’s Statements During Closing Argument

[52]   Harrison also claims that the trial court erred in overruling his objection to the

       prosecuting attorney’s act of reading to the jury a portion of a published opinion

       of this court. During the State’s closing argument, the prosecuting attorney read

       a portion of this court’s opinion in Dawson v. State, 786 N.E.2d 742, 748 (Ind. Ct.

       App. 2003), as follows:

               The Court of Appeals in reviewing this definition of
               manufacturing said “We conclude that once an individual crushes
               up pills in order to separate the ephedrine from the pill binders the
               manufacturing process has begun. Focusing upon the key phrases
               in the definition this determination we observe that manufacture is
               production, preparation, or processing of a controlled substance by
               extraction from substances of natural origin.” They went on to
               say, “The main ingredient in ephedrine -- the main ingredient is
               ephedrine and is the substance which is chemically converted into
               methamphetamine. The crushing of the pills into a powder form
               indicates not only the possession of the precursor ephedrine, but
               that it also begins the extraction process. This sufficiently meets
               the definition of manufacturing in order to support a conviction
               for dealing in methamphetamine by knowingly manufacturing it.”
               That’s the Indiana Court of Appeal -- Court of Appeals.

       Tr. pp. 548-49. Harrison makes no claim that this is an inaccurate quotation, nor

       does he claim that it was an improper statement of the law. Instead, he claims

       that it is improper to read case law to a jury. However, this is not accurate. We

       have held before that it is proper for counsel to argue both law and facts in a

       closing statement. Nelson v. State, 792 N.E.2d 588, 593 (Ind. Ct. App. 2003),

       trans. denied. Our supreme court has held that reading case law to the jury is

       proper in final argument so long as it is clear that the prosecutor is reading or

       Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015   Page 25 of 29
       referring to a separate case. Hernandez v. State, 439 N.E.2d 625, 630 (Ind. 1982)

       (citing Griffin v. State, 275 Ind. 107, 114, 415 N.E.2d 60, 65 (1981)).


[53]   Here, the prosecuting attorney made it clear that she was reading from a prior

       opinion of this court in a separate case. The trial court instructed the jury that the

       arguments of counsel were not evidence. Appellant’s App. p. 232. Accordingly,

       we cannot say that the trial court abused its discretion in overruling Harrison’s

       objection to the prosecuting attorney’s reading from Dawson during the State’s

       closing argument.


                              VI. References to Defendant’s Nickname

[54]   Lastly, Harrison claims that the trial court erred in permitting the use of

       Harrison’s nickname, “Bam Bam,” during trial. The State argues at some length

       that Harrison waived this argument by failing to object to each instance in which

       Harrison was referred to as “Bam” or “Bam Bam.” We agree.


       Harrison did not object to each instance in which his nickname was mentioned

       at trial. See, e.g., Tr. pp. 152, 170-71. A party must generally continue to object

       and obtain a ruling for each individual instance of allegedly inadmissible

       evidence. Hutcherson v. State, 966 N.E.2d 766, 770 (Ind. Ct. App. 2012), trans,

       denied.


[55]   Waiver notwithstanding, Harrison’s argument is unavailing. Harrison claims that

       the use of his nickname was irrelevant and unduly prejudicial. In general, all

       relevant evidence is admissible. Ind. Evidence Rule 402. “‘Relevant evidence’

       means evidence having any tendency to make the existence of any fact that is of
       Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015   Page 26 of 29
       consequence to the determination of the action more probable or less probable

       than it would be without the evidence.” Ind. Evidence Rule 401. Even relevant

       evidence “may be excluded if its probative value is substantially outweighed by

       the danger of unfair prejudice, confusion of the issues, or misleading the jury[.]”

       Ind. Evidence Rule 403. The trial court has discretion to permit the admission of

       even marginally relevant evidence. Wilson v. State, 997 N.E.2d 38, 43 (Ind. Ct.

       App. 2013), trans. denied (citing Thompson v. State, 671 N.E.2d 1165, 1171 (Ind.

       1996)).


[56]   Our supreme court has held that the use of a defendant’s nickname may be

       relevant to the issue of identity. McAbee v. State, 770 N.E.2d 802, 805 (Ind. 2002).

       The use of a nickname is questionable, however, where no apparent reason exists

       not to use a defendant's proper name, and, even more so where the nickname

       itself carries at least the implication of wrongdoing. Id.


[57]   Here, the nickname “Bam Bam” has no apparent implication of wrongdoing or

       criminality.10 Moreover, the use of Harrison’s nickname was relevant to proving

       his identity and his ownership of the Pontiac from which he fled and the mobile

       phone found therein. The prior owner of the Pontiac testified, “I sold it to a feller

       -- his name was Bam Bam.” Tr. p. 152. The prior owner did not know

       Harrison’s actual name. Moreover, several of the messages on the phone referred



       10
          In fact, “Bam Bam” is the name of a lovable, exceptionally strong infant character on the animated
       series “The Flintstones.” See http://flintstones.wikia.com/wiki/Bamm-Bamm_Rubble;
       http://www.imdb.com/character/ch0000639/.



       Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015              Page 27 of 29
       to “Bam” or “Bam Bam.” Under these facts and circumstances, we conclude that

       the trial court did not abuse its discretion in permitting references to Harrison’s

       nickname. See People v. Salgado, 678 N.E.2d 648 (Ill. App. Ct. 1997) (holding

       that use of defendant’s nickname of “Bam Bam” was not improper where the

       name itself did not carry a negative connotation that was immediately

       recognizable and where defendant’s friends knew and identified him by that

       name).


                                                     Conclusion

[58]   In summary, we hold that the State presented sufficient evidence to convict

       Harrison of manufacturing methamphetamine. However, Harrison’s convictions

       for possession of anhydrous ammonia and possession of precursors are lesser-

       included offenses of the greater offense of manufacturing methamphetamine and

       must be reversed. Harrison may not now assert a claim of improper search or

       seizure in his mobile phone, which he voluntarily abandoned. The trial court did

       not commit reversible error in admitting evidence regarding the telephone call

       between Hatfield and Pointer or between Harrison and Gee. Nor did the trial

       court err in permitting the prosecuting attorney to read from a published opinion

       of this court during the State’s closing argument. Lastly, the trial court did not

       abuse its discretion in permitting references to Harrison’s nickname of “Bam

       Bam.”


[59]   Accordingly, we affirm Harrison’s convictions for Class B felony manufacturing

       methamphetamine and Class A misdemeanor possession of paraphernalia but

       reverse his convictions for Class B felony possession of anhydrous ammonia and
       Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015   Page 28 of 29
Class B felony possession of chemical precursors and remand with instructions

that the trial court vacate the convictions and sentences thereon.11 Harrison’s

habitual offender adjudication remains.


Najam, J., and Bradford, J., concur.




11
   Because the trial court ordered Harrison’s sentences to be served concurrently, Harrison’s aggregate
sentence will be unaffected by our holding.



Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015               Page 29 of 29
