MEMORANDUM DECISION
                                                                        Jul 21 2015, 5:30 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
Jesse R. Poag                                             Gregory F. Zoeller
Newburgh, Indiana                                         Attorney General of Indiana
                                                          Eric P. Babbs
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Robert S. Kaufman,                                        July 21, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          82A01-1411-CR-516
        v.                                                Appeal from the Vanderburgh
                                                          Circuit Court.
                                                          The Honorable Kelli E. Fink,
State of Indiana,                                         Magistrate.
Appellee-Plaintiff.                                       Cause No. 82C01-1310-FA-1069




Darden, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-516 | July 21, 2015            Page 1 of 15
                                            Statement of the Case
[1]   Robert S. Kaufman appeals from his conviction after a jury trial of dealing in
                                  1
      methamphetamine as a Class A felony, challenging the sufficiency of the

      evidence to support his conviction. We affirm in part, reverse in part and

      remand with instructions.


                                                    Issues
[2]   Kaufman presents the following issues for our review:

                 I.       Whether the State presented sufficient evidence that the
                          Wood Creek Inn & Suites was a family housing complex
                          at the time of the offense.
                 II.      Whether the State presented sufficient evidence that
                          Kaufman had taken a substantial step toward production
                          of methamphetamine.

                                      Facts and Procedural History
[3]   On June 23, 2013, at approximately 5:29 p.m. Kaufman purchased 1.2 grams of

      pseudoephedrine from a Walgreens Store located on Green River Road in

      Evansville, Indiana. Later that same day, shortly before 11:00 p.m., Evansville

      Police Department officers responded to a tip about a possible meth lab site.

      They arrived at a railroad bridge near the Wood Creek Inn & Suites located just

      west of Old U.S. Highway 41 where they discovered several items often

      associated with the manufacture of methamphetamine. Those items were as




      1
          Ind. Code § 35-48-4-1.1 (2006).


      Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-516 | July 21, 2015   Page 2 of 15
      follows: empty pseudoephedrine blister packs; a Walgreens receipt showing the

      purchase of pseudoephedrine earlier that day; a box of ammonium nitrate cold

      packs, one of which had been cut open and its contents removed; an empty can

      of starting fluid, which was punctured on the bottom; a two-pound container of

      lye; packaging for lithium batteries; remnants of stripped batteries; one intact

      battery; at least one pair of pliers; a clear glass jar; a twenty ounce soda bottle;

      and coffee filters.


[4]   While officers were investigating the site, another officer observed Kaufman

      walking south along Old U.S. Highway 41 and approaching the parking lot of

      the Wood Creek Inn & Suites. Kaufman entered the parking lot where he

      spoke with a woman. While Kaufman was speaking to the woman, the officer

      approached him, and took him into custody, and he was later interviewed.


[5]   During the interview, Detective Chris Goergen asked Kaufman to recount

      where he had been throughout the day. According to Kaufman, he had

      awakened at approximately 3 p.m., met a friend and had something to eat. At

      approximately 4:00 p.m. he encountered some people in a green car. They

      went to a Walmart, but none of them went inside. He stated that just prior to

      being taken into custody, he had walked to a nearby Motel 6 and was walking

      south toward the Wood Creek Inn & Suites when he encountered police

      officers. Kaufman was not charged at that time.


[6]   Officers continued their investigation into the suspected meth lab site. An

      officer was able to recover a latent fingerprint from the packaging of the cold


      Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-516 | July 21, 2015   Page 3 of 15
      packs found under the bridge, and the fingerprint was later identified as

      Kaufman’s. The packaging also had two other fingerprints from unknown

      individuals. Officers matched the Walgreens receipt found underneath the

      bridge with video tape of Kaufman’s purchase of pseudoephedrine on June 23,
                                 2
      2013, and an NPLEx report of that purchase. There was no finished product

      or evidence of methamphetamine found at the site.


[7]   A warrant was issued for Kaufman’s arrest on September 30, 2013. The officer

      who took Kaufman into custody on October 2, 2013, explained to Kaufman

      that the arrest was for the incident near the Wood Creek Inn & Suites for

      manufacturing methamphetamine. Kaufman stated that in his opinion, the

      case should be charged as possession of precursors. At the conclusion of

      Kaufman’s jury trial, the jury found Kaufman guilty of Class A felony dealing

      in methamphetamine. The trial court sentenced Kaufman to thirty-four years

      in the Department of Correction. Kaufman now appeals.


                                     Discussion and Decision
[8]   Kaufman raises two challenges to the sufficiency of the evidence supporting his

      conviction. First, he argues that there is insufficient evidence to establish that

      the Wood Creek Inn & Suites was a family housing complex at the time of the




      2
       NPLEx is an acronym for the National Precursor Log Exchange. See Embrey v. State, 989 N.E.2d 1260,
      1263 (Ind. Ct. App. 2013).

      Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-516 | July 21, 2015        Page 4 of 15
       offense. He also challenges the sufficiency of the evidence that he took a

       substantial step toward the manufacture of methamphetamine.


[9]    The jury was instructed on the elements of the charged offense and the lesser-

       included offenses of attempted dealing in methamphetamine as a Class A

       felony, dealing in methamphetamine as a Class B felony, possession of

       chemical reagents or precursors with the intent to manufacture a controlled

       substance as a Class C felony, and possession of chemical reagents or

       precursors with the intent to manufacture a controlled substance as a Class D

       felony. The jury returned its verdict of guilty as to the charged offense.


[10]   Our standard of review for claims challenging the sufficiency of the evidence is

       well-settled. We do not reweigh the evidence or reassess the credibility of

       witnesses in the course of our review. Boggs v. State, 928 N.E.2d 855, 864 (Ind.

       Ct. App. 2010), trans. denied. We consider only the probative evidence and

       reasonable inferences supporting the verdict and consider conflicting evidence

       most favorably to the trial court’s ruling. Id. The conviction will be affirmed

       unless no reasonable fact-finder could find the elements of the crime proven

       beyond a reasonable doubt. Id. It is not necessary that the evidence presented

       at trial overcome every reasonable hypothesis of innocence. Id. We will

       conclude that the evidence is sufficient if an inference may reasonably be drawn

       from it to support the verdict. Id.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-516 | July 21, 2015   Page 5 of 15
                                   I. Family Housing Complex
[11]   Kaufman argues that there is insufficient evidence in the record to establish that

       Wood Creek Inn & Suites was a family housing complex at the time of the

       offense. In order to convict Kaufman of dealing in methamphetamine as a

       Class A felony, the State was required to prove beyond a reasonable doubt that

       Kaufman knowingly or intentionally manufactured methamphetamine in, on,

       or within one thousand feet of a family housing complex. Ind. Code § 35-48-4-

       1.1(b)(3)(B)(iii). A family housing complex is defined in pertinent part as “a

       building or series of buildings that contains at least twelve (12) dwelling units

       that is operated as a hotel or motel (as described in IC 22-11-18-1).” Ind. Code

       § 35-31.5-2-127 (2012). Hotels and motels are defined in Indiana Code section

       22-11-18-1 (2012) as “buildings or structures kept, maintained, used, advertised,

       or held out to the public as inns or places where sleeping accommodations are

       furnished for hire for transient guests.”


[12]   David Huffine, the general manager of the Wood Creek Inn & Suites, testified

       that it is “an extended stay hotel” that rents by the week and the month. Tr. p.

       198. There are eighty-six rooms of which thirty-two are apartments. Huffine

       stated that at the time of trial sixty-three units were rented and that of the

       families staying there approximately twenty percent had children. On cross-

       examination, Huffine testified that the Wood Creek Inn & Suites was not a

       motel or a hotel, but was “extended stay.” Tr. p. 201.


[13]   Linda Freeman, Chief Deputy of the Vanderburgh County Surveyor’s Office,

       testified about a map she had produced showing what places and buildings
       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-516 | July 21, 2015   Page 6 of 15
       were within one thousand feet of what she described as “Wood Creek

       Apartments.” Tr. p. 210. The bridge under which the suspected meth lab site

       was located was within one thousand feet of Wood Creek Inn & Suites.


[14]   In Richard v. State, 19 N.E.3d 284 (Ind. Ct. App. 2014), we considered this issue

       with respect to a conviction for dealing in cocaine within one thousand feet of a

       public park. One of the contentions on appeal challenged the sufficiency of the

       evidence that the Garden Estates Housing Complex was a family housing

       complex at the time of the offense. In concluding that the evidence was

       insufficient, we noted that while the State had established that the family

       housing complex operated as such at the time of trial, the State had not

       established that it was such at the time of the offense. We held that “[t]he fact

       that a family housing complex existed at the time of the offense is an essential

       element of the charge.” 19 N.E.3d at 287 (emphasis in original).


[15]   Here, the State established on direct examination that the Wood Creek Inn &

       Suites operated as a family housing complex at the time of trial. However,

       there was no evidence presented by the State to establish that it operated as such

       at the time of the offense. Nonetheless, Kaufman, on cross-examination of

       Huffine, after asking for a percentage of the families who lived there that had

       children, asked him, “Is that generally run the way it is?” Tr. p. 200. Huffine

       responded, “Yes sir.” Id. at 201. Kaufman then asked Huffine if he considered

       the business to be an apartment complex. Huffine replied, “No sir, we’re just

       an extended stay hotel. . . .” Id.



       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-516 | July 21, 2015   Page 7 of 15
[16]   Based on the evidence presented at trial, it appears that there is some evidence

       to support the jury’s conclusion that the Wood Creek Inn & Suites was

       operated as a hotel or motel at the time of the offense. Our standard of review

       prevents us from reweighing the evidence. Boggs, 928 N.E.2d at 864. We must

       examine the record to determine if there is evidence sufficient to support the

       jury’s decision. Id. Here, we find that it does.


                                 II. Evidence of Manufacturing
[17]   In order to convict Kaufman of dealing in methamphetamine as a Class A

       felony, the State was required to prove beyond a reasonable doubt that

       Kaufman knowingly or intentionally manufactured methamphetamine in, on,

       or within one thousand feet of a family housing complex. Ind. Code § 35-48-4-

       1.1(b)(3)(B)(iii). In this issue, he challenges the evidence supporting his

       conviction that he was engaged in the manufacturing process. Manufacturing is

       defined by statute in pertinent part as “the production, preparation,

       propagation, compounding, conversion, or processing of a controlled

       substance.” Ind. Code § 35-48-1-18 (2001). Indiana Code section 35-41-5-1

       (1977) defines an attempt as occurring when a person “acting with the

       culpability required for commission of the crime . . . engages in conduct that

       constitutes a substantial step toward commission of the crime.”


[18]   At Kaufman’s jury trial, Detective Brock Hensley testified in great detail about

       the methamphetamine manufacturing process and the items necessary for its

       production when the one pot method is used. Typically, a one-liter or two-liter

       bottle is emptied of its contents and dried out. Ammonium nitrate pellets
       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-516 | July 21, 2015   Page 8 of 15
       contained in cold packs are removed from the cold pack and placed in the

       bottle. Sodium hydroxide or household lye is then placed in the bottle and

       mixed with the ammonium nitrate pellets. Those ingredients produce an

       ammonia gas. Pseudoephedrine based cold medicine is ground up and placed

       in the bottle. An organic solvent such as Coleman camping fuel or starter fluid

       is placed in the bottle along with any kind of organic salt. Next, a lithium

       battery is stripped, in most cases by use of pliers, in order to retrieve the piece of

       silver metal from inside the battery. The piece of silver metal is placed in the

       bottle. If Coleman camping fuel is used, the water contained in the fuel will

       spark the piece of metal. Sometimes water is used to start the reaction if

       another organic solvent is used. At that point the chemical reduction process

       has started and the methamphetamine lab is rolling.


[19]   The reduction breaks down the pseudoephedrine, which is in solid form, and

       generates methamphetamine oil, which is suspended in the Coleman fuel. The

       reduction process takes approximately forty-five to sixty minutes to complete.

       At that point there are two layers of substances in the bottle. The bottom layer

       contains the unused lye, the cornstarch binding of the pseudoephedrine pills,

       and the unused ammonium nitrate pellets. The top layer, or liquid layer,

       contains the Coleman fuel, which has absorbed the methamphetamine oil. A

       baster or similar object is used to remove the liquid layer for placement in a

       glass jar.


[20]   To return that methamphetamine oil to solid form, some sort of strong acid,

       such as muriatic acid or sulfuric acid, is mixed with common household soap to

       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-516 | July 21, 2015   Page 9 of 15
       create hydrochloride gas in a twenty-ounce bottle. Airline tubing, such as the

       kind used for aquariums, extends from a hole in the cap of the twenty-ounce

       bottle. After the gas is produced, it is put over the methamphetamine oil to

       return it to solid form. The solid is washed with acetone, which evaporates

       quickly, in order to clean up the product. Another option is to allow the solid

       material to dry in coffee filters.


[21]   Evansville Police Sergeant David Barron, who was the supervisor over the joint

       task force meth suppression unit, testified that upon examining the items found

       under the bridge, there were “items indicative of meth manufacture,” but that

       “no chemicals had been mixed, we couldn’t find or I couldn’t find an active

       reaction vessel where the chemicals had been put together.” Tr. pp. 87, 91.


[22]   When asked about items typically used in the methamphetamine

       manufacturing process, but which were missing from the scene, such as airline

       tubing, salt, muriatic acid, or any other items used to generate the gas to smoke

       off the meth oil, both Sergeant Barron and Detective Hensley testified that

       sometimes people begin the process in one location and complete the process in

       another location. None of the officers smelled the odor associated with

       manufacturing methamphetamine at the location under the bridge. The

       pseudoephedrine pills were missing from the blister packs and no residue from

       the manufacturing of methamphetamine was found. The mason jar and the

       twenty-ounce soda bottle were empty and the coffee filters appeared to be

       unused.



       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-516 | July 21, 2015   Page 10 of 15
[23]   In Dawson v. State, 786 N.E.2d 742 (Ind. Ct. App. 2003), trans. denied, we

       reviewed a defendant’s conviction of dealing in a controlled substance under

       Indiana Code section 35-48-4-2 (2001). We discussed two cases handed down

       by this Court on August 12, 2002, outlining the distinction between what

       evidence was sufficient to support a conviction of dealing in a controlled

       substance under Indiana Code section 35-48-4-2 and possession of two or more

       listed precursors with the intent to manufacture methamphetamine. See Bush v.

       State, 772 N.E.2d 1020 (Ind. Ct. App. 2002), trans. denied; Iddings v. State, 772

       N.E.2d 1006 (Ind. Ct. App. 2002), trans. denied. In Bush, we held that in order

       to convict the defendant of dealing in a controlled substance, the manufacturing

       process does not have to be completed, nor does there have to be actual product

       recovered. 772 N.E.2d at 1023. In Iddings, we determined that the difference

       between the evidence required to support a conviction of dealing in a controlled

       substance, and possession of two or more precursors with the intent to

       manufacture methamphetamine, is “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.” 772 N.E.2d at 1016-17.


[24]   Here, there was evidence to establish that certain items used in the

       methamphetamine manufacturing process were present. The can of starter fluid

       had been punctured, the blister packs of pseudoephedrine had been emptied,

       and a cold pack had been disassembled. Lithium batteries had been stripped,


       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-516 | July 21, 2015   Page 11 of 15
       presumably with the pliers found at the scene. Other items necessary for the

       manufacture of methamphetamine were present under the bridge. However,

       the State was required to present evidence found at the location of the meth lab

       site showing Kaufman engaged in the manufacturing process. The only

       evidence connecting Kaufman consisted of: (1) the receipt from Kaufman’s

       purchase of pseudoephedrine from Walgreens, (2) Kaufman’s finger print on

       the packaging of one of the cold packs, and (3) Kaufman’s presence in the

       parking lot of the Wood Creek Inn & Suites shortly after police officers arrived

       to follow up on the tip about the meth lab site. Unlike in Bush and Iddings, the

       items were not located in Kaufman’s residence or in an area under his exclusive

       control. Instead, they were located under a bridge, and fingerprints from other

       individuals were also recovered.


[25]   The State cited to our opinion Montgomery v. State, 22 N.E.3d 768 (Ind. Ct.

       App. 2014) in its brief. However, after the brief was filed, the Supreme Court

       granted transfer, vacating the opinion. In that appeal, we considered the

       sufficiency of the evidence supporting that defendant’s conviction of Class B

       felony dealing in methamphetamine. In Montgomery, the State presented

       evidence that in the two months leading up to his arrest, the defendant had

       purchased a box of pseudoephedrine every ten days. At the time of

       Montgomery’s arrest he was in possession of a smoking hydrochloride

       generator, lye, sulfuric acid, two open instant cold packs containing ammonium

       nitrate, two one-pound containers of salt, a twenty ounce soda bottle with a bi-

       layer liquid that smelled strongly of ether, several pieces of burnt foil, an open


       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-516 | July 21, 2015   Page 12 of 15
       package of coffee filters, a pipe cutter, and a plastic funnel with white residue.

       That evidence, in addition to the defendant’s attempt to flee from police, was

       found to be sufficient to support Montgomery’s conviction. Our opinion,

       however, was vacated upon the grant of transfer.


[26]   In this case, the evidence supports an inference that someone or a group of

       people were preparing to manufacture methamphetamine and that many of the

       required ingredients were located under the bridge. However, the evidence is

       insufficient to connect Kaufman to the offense of which he was convicted. The

       jury was given the option to convict Kaufman of attempted dealing in

       methamphetamine, but did not do so. Therefore, based on the paucity of

       evidence linking Kaufman to the manufacture of methamphetamine, we find

       that there is insufficient evidence to support his conviction for that offense.


[27]   However, the jury was instructed on the lesser-included offense of Class C

       felony possession of chemical reagents or precursors with intent to manufacture

       controlled substances. Ind. Code § 35-48-4-14.5(f) (2006). In order to convict

       Kaufman of the offense the State was required to prove beyond a reasonable

       doubt that Kaufman possessed two or more chemical reagents or precursors

       with the intent to manufacture a controlled substance within one thousand feet

       of a family housing complex. We have already concluded that the evidence

       was sufficient to establish that the location of the suspected meth lab site was

       within 1,000 feet of a family housing complex. Indiana Code section 35-48-4-

       14.5(a) sets forth which items meet the definition of chemical reagent and

       precursors, which includes pseudoephedrine and ammonium nitrate.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-516 | July 21, 2015   Page 13 of 15
[28]   “Absent an admission by the defendant, intent must be determined from a

       consideration of the defendant’s conduct and the natural and usual

       consequences thereof.” West v. State, 805 N.E.2d 909, 915 (Ind. Ct. App. 2004).

       “The trier of fact must resort to reasonable inferences based upon an

       examination of the surrounding circumstances to determine whether, from the

       person’s conduct and the natural consequences of what might be expected from

       that conduct, a showing or inference of the intent to commit that conduct

       exists.” Id.


[29]   The evidence presented at trial establishes that the Walgreens receipt found

       under the bridge was from a purchase made by Kaufman. The NPLEx record

       and surveillance video connect him to that purchase. Further, his finger print

       was recovered from the packaging of one of the cold packs. Testimony

       established that ammonium nitrate pellets used in the manufacture of

       methamphetamines is a component of cold packs. When Kaufman was

       arrested and the charges were explained to him he stated that he thought the

       appropriate charge against him should be possession of precursors. Therefore,

       we conclude that the State presented sufficient evidence that Kaufman

       possessed two or more precursors with the intent to manufacture

       methamphetamine within 1,000 feet of a family housing complex.


                                                Conclusion
[30]   Based on the foregoing, we find that there is insufficient evidence to establish

       that Kaufman committed the offense of Class A felony dealing in


       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-516 | July 21, 2015   Page 14 of 15
       methamphetamine within 1,000 feet of a family housing complex. However,

       there is sufficient evidence to establish that he committed the lesser-included

       offense of possession of two or more chemical reagents or precursors with intent

       to manufacture controlled substances within 1,000 feet of a family housing

       complex. Therefore, we remand this matter to the trial court to vacate

       Kaufman’s conviction and sentence for dealing in methamphetamine as a Class

       A felony, and to enter judgment of conviction against Kaufman on one count of

       possession of two or more chemical reagents or precursors with intent to

       manufacture methamphetamine within 1,000 feet of a family housing complex

       as a Class C felony, and to sentence Kaufman accordingly.


[31]   Affirmed in part, reversed in part and remanded with instructions.


       Bradford, J., and Pyle, J., concur.




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