MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               Sep 08 2015, 8:12 am
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
Kimberly A. Jackson                                      Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Danny James Horton,                                      September 8, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         86A03-1412-CR-423
        v.                                               Appeal from the Warren Circuit
                                                         Court
State of Indiana,                                        The Honorable John A. Rader,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         86C01-1207-FB-58




Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 86A03-1412-CR-423 | September 8, 2015     Page 1 of 18
                                             Case Summary
[1]   A jury found Danny James Horton guilty of class B felony conspiracy to

      manufacture methamphetamine (meth) and class D felony possession of two or

      more precursors. On appeal, Horton asserts that the trial court erred in

      admitting certain evidence and refusing his tendered jury instructions. He also

      asserts that his convictions violate double jeopardy principles and are not

      supported by sufficient evidence. We conclude that his convictions violate

      double jeopardy principles but otherwise find no prejudicial error. Therefore,

      we affirm his conspiracy conviction and vacate his possession conviction on

      double jeopardy grounds.


                                 Facts and Procedural History
[2]   The relevant facts most favorable to the jury’s verdict are that in June 2012,

      Horton, Donald Horne, and Melissa Brenner agreed to manufacture meth. On

      June 27, Horton drove Horne and Brenner to a liquor store and returned to

      Brenner’s apartment, where they drank and made plans for the evening. Horne

      used a blender to grind pseudoephedrine pills, which are used to manufacture

      meth. Later, Horton drove the others to a friend’s house, where they used

      meth. Horton went next door and obtained more pseudoephedrine pills, which

      Brenner removed from their packaging and put in a plastic bag.


[3]   After dark, Horton drove Horne and Brenner toward a farm co-op to steal

      anhydrous ammonia, which is also used to manufacture meth. Horne was in

      the front passenger seat, and Brenner was in the rear passenger seat. Inside the


      Court of Appeals of Indiana | Memorandum Decision 86A03-1412-CR-423 | September 8, 2015   Page 2 of 18
      car was Horton’s duffel bag, which contained several meth precursors: organic

      solvents (camp fuel), lithium metal (lithium batteries), and hydrochloric

      (muriatic) acid. The bag also contained meth manufacturing equipment:

      tubing, funnels, side-cutting pliers, and a glue gun. En route, Horton stopped

      his car on a gravel road to hide the duffel bag in case they were stopped by

      police. Horne got out of the car, and Brenner handed him the duffel bag. The

      trio saw the headlights of two law enforcement vehicles approaching. Horne

      hid in a ditch with the duffel bag. Brenner tossed the plastic bag of

      pseudoephedrine pills out the car window.


[4]   As Warren County Sheriff’s Deputies Anthony Pruitt and Cory Brooks drove

      toward Horton’s car, it appeared to be stopped with its headlights on and

      engine running. The deputies pulled up beside the car. Deputy Pruitt

      determined that Horton was the driver and informed Deputy Brooks. Deputy

      Brooks, who knew Horton, asked Horton if he could search the car. Horton

      consented. The deputy had Horton and Brenner get out of the car. He found

      approximately 100 coffee filters, often used in manufacturing meth, on the front

      passenger seat; an empty thermos, which could be used to store anhydrous

      ammonia and emitted “a chemical odor” when it was opened, on the front

      floorboard; and a bottle of drain cleaner, often used in manufacturing meth, in

      the trunk. Tr. at 190. He also found the bag of pseudoephedrine pills that

      Brenner had tossed out the window. Deputy Brooks seized all of these items

      and told Horton that he “believed [he] knew what [Horton] was doing” and “to




      Court of Appeals of Indiana | Memorandum Decision 86A03-1412-CR-423 | September 8, 2015   Page 3 of 18
      conduct that type of business somewhere else.” Id. at 195. Horton and Brenner

      got back in the car and drove away.


[5]   The deputies “thought it was odd that the front passenger seat [of Horton’s car]

      was empty” and “decided to walk around a little bit and see if [they] could

      discover[] anything else.” Id. They soon found Horne and the duffel bag “in

      the ditch next to the road.” Id. Deputy Pruitt took Horne into custody.

      Deputy Brooks drove off in search of Horton and Brenner and found them in

      Horton’s friend’s driveway, where he took them into custody.


[6]   The State charged Horton with class B felony conspiracy to manufacture meth

      and class D felony possession of two or more precursors (lithium metal,

      pseudoephedrine, organic solvents, and hydrochloric acid). Horton failed to

      appear for his scheduled trial date in June 2013 and was not located until

      February 2014. After a trial in August 2014, the jury found Horton guilty as

      charged. The trial court entered judgment of conviction on both counts and

      sentenced Horton to concurrent terms of nineteen years for conspiracy and

      three years for possession. Horton now appeals.


                                     Discussion and Decision

         Section 1 – Horton has waived any argument regarding the
            admissibility of the evidence seized by the deputies.
[7]   Horton filed a pretrial motion to suppress, in which he alleged that the deputies

      detained him and searched his car in violation of the Fourth Amendment of the

      U.S. Constitution and Article 1, Section 11 of the Indiana Constitution. He

      Court of Appeals of Indiana | Memorandum Decision 86A03-1412-CR-423 | September 8, 2015   Page 4 of 18
      requested the exclusion of all evidence seized or statements made as a result of

      the detention and search. The trial court denied the motion. At trial, Deputy

      Brooks testified about his encounter with Horton, the items found in his car,

      and the duffel bag found in the ditch. Horton objected to the admission of the

      items seized from the car “based on [the] Motion made previous to trial.” Id. at

      194. The trial court overruled the objection. Horton also objected to the

      admission of the duffel bag and its contents, and the trial court overruled that

      objection. Id. at 202.


[8]   On appeal, Horton contends that the trial court erred in admitting the foregoing

      evidence. We agree with the State that Horton has waived this argument by

      failing to object to Deputy Brooks’s testimony regarding that evidence. 1

      Lundquist v. State, 834 N.E.2d 1061, 1067 (Ind. Ct. App. 2005). Further, that

      testimony was cumulative of Horne’s and Brenner’s testimony, to which

      Horton also did not object. “Any error in the admission of evidence is harmless




      1
        Horton claims that the trial court “treated [his] objection as continuing.” Appellant’s Br. at 17 (citing Tr. at
      194, 202). When Horton objected to the items found in his car, he asked the trial court, “Judge, if we could
      show a standing objection to further exhibits, or do you want me to object one (1) at a time?” Tr. at 194
      (emphasis added). The court responded, “[P]robably since they, I don’t know whether they all would be
      covered under the earlier [suppression ruling] then[.]” Id. When the State offered the duffel bag and its
      contents into evidence, the trial court asked, “Continuing objection?” and Horton replied, “Continuing
      objection. Thank you, Judge.” Id. at 202. To the extent that the trial court treated Horton’s objection as
      continuing, it pertained only to exhibits and not to testimony, which Horton did not object to.

      Court of Appeals of Indiana | Memorandum Decision 86A03-1412-CR-423 | September 8, 2015              Page 5 of 18
      if the same or similar evidence was admitted without objection.” Gregory v.

      State, 604 N.E.2d 1240, 1242 (Ind. Ct. App. 1992), trans. denied (1993). 2


[9]   To avoid waiver, Horton contends that the trial court’s admission of the

      testimony was fundamental error. We disagree. As our supreme court

      explained in Brown v. State, 929 N.E.2d 204 (Ind. 2010),


               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.
               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. The error claimed must either make a fair trial
               impossible or constitute clearly blatant violations of basic and
               elementary principles of due process. This exception is available
               only in egregious circumstances.

               This doctrine has been applied, for example, to review a
               conviction without proof of an element of the crime despite the
               lack of objection. But an error in ruling on a motion to exclude
               improperly seized evidence is not per se fundamental error.
               Indeed, because improperly seized evidence is frequently highly
               relevant, its admission ordinarily does not cause us to question
               guilt. That is the case here. The only basis for questioning
               Brown’s conviction lies not in doubt as to whether Brown



      2
       We agree with the State that Horton has no apparent basis for challenging the admissibility of the duffel bag
      and its contents, which were found in the ditch after he left the scene of the allegedly unconstitutional search
      of his car. At the very least, Horton has never made a cogent argument on this point. Cf. Hall v. State, 975
      N.E.2d 401, 405-06 (Ind. Ct. App. 2012) (holding that defendant abandoned vehicle with meth lab during
      police chase and therefore had no reasonable expectation of privacy in vehicle for Fourth Amendment
      purposes). Combined with Horne’s and Brenner’s testimony, the duffel bag and its contents are sufficient to
      support both of Horton’s convictions.

      Court of Appeals of Indiana | Memorandum Decision 86A03-1412-CR-423 | September 8, 2015            Page 6 of 18
                committed these crimes, but rather in a challenge to the integrity
                of the judicial process. We do not consider that admission of
                unlawfully seized evidence ipso facto requires reversal. Here,
                there is no claim of fabrication of evidence or willful malfeasance
                on the part of the investigating officers and no contention that the
                evidence is not what it appears to be. In short, the claimed error
                does not rise to the level of fundamental error.


       Id. at 207 (citations and quotation marks omitted). We reach the same

       conclusion for the same reasons in this case. 3


            Section 2 – The trial court did not abuse its discretion in
           admitting evidence regarding Horton’s failure to appear for
                            his scheduled trial date.
[10]   Next, Horton asserts that the trial court erred in admitting evidence that he had

       failed to appear for his scheduled June 2013 trial date. “Our standard of review

       of a trial court’s admission of evidence is an abuse of discretion. A trial court

       abuses its discretion if its decision is clearly against the logic and effect of the

       facts and circumstances before the court or if the court misapplies the law.”

       Mack v. State, 23 N.E.3d 742, 750 (Ind. Ct. App. 2014) (citation omitted), trans.

       denied (2015).




       3
         Horton does not specifically contend that Deputies Brooks and Pruitt committed willful malfeasance, but he
       does claim that Deputy Brooks coerced him into giving consent to search his car by implying that the “search
       was a parole search or a mandatory requirement of Horton’s parole[.]” Appellant’s Br. at 24. The parole
       issue was mentioned at the suppression hearing but not at trial. In its suppression order, the trial court found
       that “Deputy Brooks inquired as to whether Horton was on parole but made no claim that such status
       authorized him to search the vehicle.” Appellant’s App. at 38.

       Court of Appeals of Indiana | Memorandum Decision 86A03-1412-CR-423 | September 8, 2015            Page 7 of 18
[11]   At trial, Deputy Brooks testified over Horton’s objection that Horton had failed

       to appear for trial in June 2013 and was not located until February 2014.

       Horton contends that this testimony was inadmissible under Indiana Evidence

       Rule 404(b), which provides in pertinent part that “[e]vidence of a crime,

       wrong, or other act is not admissible to prove a person’s character in order to

       show that on a particular occasion the person acted in accordance with the

       character,” but “may be admissible for another purpose, such as proving

       motive, opportunity, intent, preparation, plan, knowledge, identity, absence of

       mistake, or lack of accident.”


[12]   Here, the State offered the testimony regarding Horton’s failure to appear “to

       show consciousness of guilt.” Tr. at 205. This is not a prohibited purpose

       under Evidence Rule 404(b). In Bennett v. State, 883 N.E.2d 888 (Ind. Ct. App.

       2008), trans. denied, we held that evidence of a defendant’s flight to Mississippi

       and failure to appear at trial was admissible to show consciousness of guilt, and

       we see no reason to hold differently here. See id. at 893 (“[T]he evidence is

       prejudicial only in the sense that it is highly probative of Bennett’s perpetration

       of the charged offenses. The evidence was offered, as stated, as evidence of

       consciousness of guilt. This evidence is not unfairly prejudicial in that it is not

       evidence of other wrongs, but of the charged offenses.”). We find no abuse of

       discretion.




       Court of Appeals of Indiana | Memorandum Decision 86A03-1412-CR-423 | September 8, 2015   Page 8 of 18
            Section 3 – The trial court did not abuse its discretion in
             admitting an officer’s opinion that the seized evidence
                             constituted a meth lab.
[13]   Indiana State Police Sergeant Brock Russell testified over Horton’s objection

       that the evidence found in Horton’s car and duffel bag was a “mobile meth lab

       or the beginning process of a meth lab with the chemicals and tools that are

       there.” Tr. at 285. Horton asserts that this testimony was inadmissible under

       Evidence Rule 704(b), which states, “Witnesses may not testify to opinions

       concerning intent, guilt, or innocence in a criminal case; the truth or falsity of

       allegations; whether a witness has testified truthfully; or legal conclusions.” We

       note that Horton’s coconspirator Horne testified without objection that the

       contents of the duffel bag “were a methamphetamine kit” that was lacking only

       pseudoephedrine pills and anhydrous ammonia. Tr. at 222. As such, any error

       in the admission of Sergeant Russell’s testimony can only be considered

       harmless. Gregory, 604 N.E.2d at 1242.


[14]   In any event, we find no error here. Horton contends that Sergeant Russell’s

       testimony was an improper opinion regarding his intent to manufacture

       methamphetamine. At most, Sergeant Russell’s testimony merely led to an

       inference about Horton’s intent, and “‘Rule 704(b) does not prohibit

       presentation of evidence that leads to an inference, even if no witness could

       state [an] opinion with respect to that inference.’” Steinberg v. State, 941 N.E.2d

       515, 526 (Ind. Ct. App. 2011) (quoting 13 ROBERT LOWELL MILLER, JR.,

       INDIANA PRACTICE § 704.201 at 589 (3d ed. 2007)) (alteration in Steinberg),


       Court of Appeals of Indiana | Memorandum Decision 86A03-1412-CR-423 | September 8, 2015   Page 9 of 18
       trans. denied. Horton also claims that Sergeant Russell’s testimony was an

       impermissible opinion on the ultimate issue of his guilt, but Evidence Rule

       704(a) states that “[t]estimony in the form of an opinion or inference otherwise

       admissible is not objectionable just because it embraces an ultimate issue.” The

       trial court did not abuse its discretion in admitting Sergeant Russell’s testimony.


            Section 4 – The trial court did not abuse its discretion in
               refusing Horton’s witness credibility instruction.
[15]   The trial court refused three final jury instructions tendered by Horton, who

       claims that the court erred in doing so. “The purpose of an instruction is to

       inform the jury of the law applicable to the facts without misleading the jury

       and to enable it to comprehend the case clearly and arrive at a just, fair, and

       correct verdict.” Surber v. State, 884 N.E.2d 856, 866-67 (Ind. Ct. App. 2008),

       trans. denied. “Instruction of the jury is generally within the discretion of the

       trial court and is reviewed only for an abuse of that discretion.” Id. at 867.

       “When reviewing the refusal to give a proposed instruction, this court

       considers: (1) whether the proposed instruction correctly states the law; (2)

       whether the evidence supports giving the instruction; and (3) whether other

       instructions already given cover the substance of the proposed instruction.”

       Brakie v. State, 999 N.E.2d 989, 993 (Ind. Ct. App. 2013), trans. denied (2014).

       “An error is to be disregarded as harmless unless it affects the substantial rights

       of a party. Errors in the giving or refusing of instructions are harmless where a

       conviction is clearly sustained by the evidence and the jury could not properly

       have found otherwise.” Id. (citations and quotation marks omitted).

       Court of Appeals of Indiana | Memorandum Decision 86A03-1412-CR-423 | September 8, 2015   Page 10 of 18
[16]   Horton’s first instruction reads as follows:

               The State called one of its witnesses an alleged accomplice with
               whom the State has entered into a plea agreement providing for a
               lesser sentence than he/she would otherwise be exposed to for
               the offense to which he/she plead guilty. Such plea bargaining,
               as it is called, has been approved as lawful and proper.

               An alleged accomplice, including one who has entered in a plea
               agreement with the State, does not become incompetent as a
               witness. On the contrary, the testimony of such a witness may
               alone be of sufficient weight to sustain a verdict of guilty.
               However, the Jury should keep in mind that such testimony is
               always to be reviewed with caution and weighed with great care.

               The fact that an accomplice has entered a plea of guilty to the
               offense charged is not evidence of the guilt of any other person.


       Appellant’s App. at 80.


[17]   At trial, Horton relied on Newman v. State, 263 Ind. 569, 334 N.E.2d 684 (1975),

       in advocating for the instruction, but on appeal he acknowledges that this

       language appeared instead in Willis v. State, 510 N.E.2d 1354 (Ind. 1987), cert.

       denied (1988). In that case, Willis tendered an identical instruction that was

       given by the trial court over the State’s objection, and the State tendered two

       accomplice-specific instructions that were given by the trial court over Willis’s

       objection. See id. at 1358 (State’s instructions: “An accomplice witness is one

       who testifies that he was involved in the commission of the crime with the

       defendant. An accomplice is competent as a witness for the State or the

       defendant in the trial of a criminal cause. The testimony of an accomplice is to


       Court of Appeals of Indiana | Memorandum Decision 86A03-1412-CR-423 | September 8, 2015   Page 11 of 18
       be received and weighed by the jury in the same manner and according to the

       same rules as the evidence of any other witness.”; “A conviction may be based

       entirely upon the testimony of an accomplice, and a co-conspirator is an

       accomplice and is a competent witness.”). On appeal, Willis apparently argued

       that the State’s instructions, combined with his instruction, placed “undue

       emphasis on the accomplice testimony.” Id.


[18]   Our supreme court stated,

               It is generally improper for a trial court to emphasize a particular
               phase of a case by emphasizing certain propositions of law in its
               instructions. However, in order to constitute reversible error, the
               instructions must be so repetitive as to violate the rights of the
               defendant in that the instructions become an argument of the
               court on one particular phase of the case.


       Id. (citation omitted). The court concluded,


               We believe the three instructions in question here, taken in
               conjunction with all the other instruction[s] given, were not so
               repetitious as to place undue emphasis on the accomplice
               testimony. This is particularly true when the instructions have
               been submitted by both parties. All three instructions were
               correct statements of the law. It appears the court instructed on
               both of the parties’ theories on this issue and we accordingly see
               no error.


       Id.


[19]   In this case, however, the State did not submit accomplice credibility

       instructions, and consequently Horton’s tendered instruction placed undue

       Court of Appeals of Indiana | Memorandum Decision 86A03-1412-CR-423 | September 8, 2015   Page 12 of 18
       emphasis on Horne’s and Brenner’s testimony, potentially to his own detriment

       (“[T]he testimony of such a witness may alone be of sufficient weight to sustain

       a verdict of guilty.”). See Ludy v. State, 784 N.E.2d 459, 462 (Ind. 2003) (“To

       expressly direct a jury that it may find guilt based on the uncorroborated

       testimony of a single person is to invite it to violate its obligation to consider all

       the evidence.”). And the trial court instructed the jurors that they were “the

       exclusive judges of the evidence” and would determine “the value to give to a

       witness’s testimony”; that they could consider “any interest, bias or prejudice

       the witness may have”; and that “a person charged with a crime is presumed to

       be innocent.” Appellant’s App. at 86, 85. Thus, the trial court’s instruction

       covered the substance of Horton’s proposed instruction, and we find no abuse

       of discretion in the court’s rejection of it. See Lyons v. State, 431 N.E.2d 78, 81

       (Ind. 1982) (“Instructions on the credibility of witnesses should be general in

       nature and should apply equally to all witnesses.”).


            Section 5 – The trial court did not abuse its discretion in
                   refusing Horton’s conspiracy instruction.
[20]   Horton also asserts that the trial court erred in refusing this instruction:

               Mere presence at the scene of the crime or mere association with
               conspirators will not by themselves support a conspiracy.
               Presence or a single act will support a conspiracy only if the
               circumstances permit an inference that the presence or act was
               intended to advance the ends of the conspiracy.


       Appellant’s App. at 81. Horton contends that the instruction is supported by

       the evidence and correctly states the law, citing Porter v. State, 715 N.E.2d 868,
       Court of Appeals of Indiana | Memorandum Decision 86A03-1412-CR-423 | September 8, 2015   Page 13 of 18
       870 (Ind. 1999), in which the “mere presence” language was used in addressing

       the defendant’s sufficiency claim, not in a jury instruction. “[T]he mere fact that

       certain language or expressions are used in the opinions of Indiana’s appellate

       courts does not make it proper language for instructions to a jury.” Gravens v.

       State, 836 N.E.2d 490, 494 (Ind. Ct. App. 2005), trans. denied (2006).


[21]   The State points out that “[t]here was nothing in the jury instructions which

       would lead the jury to believe that Horton’s mere presence at the scene of the

       crime was a sufficient factor to convict him of the charges.” Appellee’s Br. at

       19. Indeed, the trial court instructed the jurors that to convict Horton of

       conspiracy to manufacture meth, the State had to prove beyond a reasonable

       doubt that he agreed with Horne or Brenner to manufacture meth with the

       intent to commit the crime and that one of them performed an overt act in

       furtherance of the agreement by traveling to Warren County in possession of

       meth precursors. Appellant’s App. at 89. The evidence at trial overwhelmingly

       established that all three coconspirators agreed to manufacture meth with the

       intent to commit the crime and traveled to Warren County in possession of

       several meth precursors. Consequently, we find no abuse of discretion in the

       trial court’s refusal of Horton’s instruction.


            Section 6 – The trial court did not abuse its discretion in
             refusing Horton’s constructive possession instruction.
[22]   Finally, Horton contends that the trial court erred in refusing this instruction:

               Constructive possession of an item is the intent and capability to
               maintain dominion and control over the item. Proof of a
       Court of Appeals of Indiana | Memorandum Decision 86A03-1412-CR-423 | September 8, 2015   Page 14 of 18
               possessory interest in the vehicle where the item is found might
               be adequate to show the capability to maintain control over the
               item. However, when possession of the vehicle is not exclusive,
               the inference of intent must be supported by additional
               circumstances that point to the Accused’s knowledge of the
               nature of the item and its presence. Mere presence where an item
               is located or association with person [sic] who possess [sic] the
               item is not alone sufficient to support a finding of constructive
               possession.


       Id. at 82. Horton contends that this instruction is supported by the evidence,

       noting that none of the precursors were found on anyone’s person. He also

       contends that the instruction correctly states the law, again citing cases

       addressing sufficiency claims and not jury instructions.


[23]   He further asserts that his instruction is more complete than the trial court’s

       instruction, which reads in relevant part as follows:

               The word “possess” means to own or to exert control over. The
               word possession can take on several different, but related,
               meanings.

               There are two kinds of possession actual possession and
               constructive possession. A person who knowingly has direct
               physical control of a thing at a given time is then in actual
               possession of it. A person who, although not in actual
               possession, knowingly has both the power and the intention at a
               given time to exercise control over a thing, either directly or
               through another person or persons, is then in constructive
               possession of it.

               Possession may be sole or joint. If one person alone has actual or
               constructive possession of a thing, then possession is sole. If two
               or more persons share actual or constructive possession of a
       Court of Appeals of Indiana | Memorandum Decision 86A03-1412-CR-423 | September 8, 2015   Page 15 of 18
                thing, then possession is joint.

                Possession may be actual or constructive, and either alone or
                jointly with others.


       Id. at 89-90. Horton contends that the trial court’s instruction “did not specify

       possession of a vehicle may be sufficient to establish capability to maintain

       control,” “did not address constructive possession in a vehicle with multiple

       people in it,” “did not state that where possession is not exclusive, the inference

       of intent must be supported by additional circumstances that point to the

       accused’s knowledge of the nature of the item and its presence,” and “did not

       specify that … mere presence or association with the possessor of contraband is

       not sufficient to support a finding of constructive possession.” Appellant’s Br.

       at 44.


[24]   We find no merit in Horton’s quibbles about the vehicle; if anything, his

       proposed instruction was potentially damaging to him because he was the

       owner and driver of the vehicle, and all the relevant precursors were found

       outside the vehicle in his duffel bag. 4 Likewise, the instruction’s mention of

       “additional circumstances that point to the accused’s knowledge of the nature

       of the item and its presence” was potentially damaging to him because he was

       the owner and driver of the vehicle, and both Horne and Brenner testified that

       the duffel bag belonged to Horton. And finally, nothing in the trial court’s



       4
        Sergeant Russell testified that the drain cleaner found in the vehicle’s trunk contained sulfuric acid, which is
       not one of the precursors that Horton was charged with possessing.

       Court of Appeals of Indiana | Memorandum Decision 86A03-1412-CR-423 | September 8, 2015            Page 16 of 18
       instruction suggests that mere presence or association with the possessor of

       contraband is sufficient to support a finding of constructive possession.

       Therefore, we find no abuse of discretion in the trial court’s refusal of Horton’s

       instruction.


         Section 7 – Horton’s convictions are supported by sufficient
                                 evidence.
[25]   Horton challenges the sufficiency of the evidence supporting his convictions.

       Our standard of review is well settled: we neither judge credibility of witnesses

       nor reweigh evidence. Stetler v. State, 972 N.E.2d 404, 406 (Ind. Ct. App. 2012),

       trans. denied.


               We consider only the probative evidence and reasonable
               inferences supporting the verdict and consider conflicting
               evidence most favorable to the verdict. We will affirm the
               conviction unless no reasonable fact-finder could find the
               elements of the crime proven beyond a reasonable doubt. That
               is, the verdict will not be disturbed if there is sufficient evidence
               of probative value to support the conclusion of the trier of fact.


       Id. (citations omitted).


[26]   As indicated above, the State presented overwhelming evidence that Horton

       conspired with Horne and Brenner to manufacture meth and possessed two or

       more precursors. Horton’s argument is merely an invitation to judge witness

       credibility and reweigh evidence in his favor, which we may not do.




       Court of Appeals of Indiana | Memorandum Decision 86A03-1412-CR-423 | September 8, 2015   Page 17 of 18
            Section 8 – Horton’s convictions violate double jeopardy
                                   principles.
[27]   Finally, Horton claims, and the State concedes, that his convictions violate

       double jeopardy principles. Indiana courts have “‘long adhered to a series of

       rules of statutory construction and common law that are often described as

       double jeopardy, but are not governed by the constitutional test set forth in

       Richardson [v. State, 717 N.E.2d 32 (1999)].’” Guyton v. State, 771 N.E.2d 1141,

       1143 (Ind. 2002) (quoting Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002)

       (Boehm, J., concurring in result)). One such rule prohibits “‘[c]onviction and

       punishment for the crime of conspiracy where the overt act that constitutes an

       element of the conspiracy charge is the very same act as another crime for

       which the defendant has been convicted and punished.’” Id. (quoting

       Richardson, 717 N.E.2d at 56-57 (Sullivan, J., concurring)). Here, the overt act

       that constitutes an element of the conspiracy charge is the possession of

       precursors, for which Horton has been convicted and punished. See Appellant’s

       App. at 20 (charging information). Because both convictions cannot stand, “we

       vacate the conviction with the less severe penal consequences,” i.e., the class D

       felony possession conviction, and leave standing the class B felony conspiracy

       conviction, which we affirm. Richardson, 717 N.E.2d at 55.


[28]   Affirmed in part and vacated in part.


       Barnes, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 86A03-1412-CR-423 | September 8, 2015   Page 18 of 18
