MEMORANDUM DECISION
                                                                     Feb 03 2015, 9:31 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                                    ATTORNEY FOR APPELLEE
Scott L. Barnhart                                         Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Jodi Kathryn Stein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Andrew Wedge,                                            February 3, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         82A01-1403-CR-143
        v.                                               Appeal from the Vanderburgh
                                                         Superior Court; The Honorable Kelli
State of Indiana,                                        E. Fink, Magistrate;
                                                         82C01-1304-FA-447
Appellee-Plaintiff.




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1403-CR-143 | February 3, 2015      Page 1 of 8
[1]   Andrew Wedge appeals his conviction of Class B felony manufacture of

      methamphetamine. He presents two issues for our consideration:


[2]   1. Whether the trial court abused its discretion when it admitted evidence

      regarding the contents of a storage unit used to manufacture methamphetamine;

      and


[3]   2. Whether the State presented sufficient evidence to prove Wedge committed

      Class B felony manufacture of methamphetamine.


[4]   We affirm.


                                        Facts and Procedural History
[5]   On April 19, 2014, officers executing an arrest warrant for Wedge discovered drug

      paraphernalia used to ingest methamphetamine, $376.00 in cash, a digital scale

      and multiple items used to make methamphetamine at the residence in which

      Wedge was staying. Based on information provided by Wedge, the investigation

      turned to two storage units Wedge rented. In one of those storage units, police

      found items used to make methamphetamine and 135 one pot vessels which

      contained the remnants of methamphetamine manufacture.


[6]   Based thereon, the State charged Wedge with two counts of Class B felony dealing

      in methamphetamine,1 one alleging Wedge dealt methamphetamine and the other

      alleging Wedge manufactured methamphetamine; Class D felony possession of



         1
             Ind. Code § 35-48-4-1.1 (2012).


         Court of Appeals of Indiana | Memorandum Decision 82A01-1403-CR-143 | February 3, 2015   Page 2 of 8
      methamphetamine;2 Class A misdemeanor possession of paraphernalia; 3 and two

      counts of Class D felony maintaining a common nuisance. 4 The jury found Wedge

      guilty of all charges except for one dealing count.


                                            Discussion and Decision
                                              1.   Admission of Evidence

[7]   Wedge asserts the court abused its discretion by admitting photographs of the 135

      one pot vessels used to manufacture methamphetamine. We typically review

      admission of evidence for an abuse of discretion. Kindred v. State, 973 N.E.2d

      1245, 1252 (Ind. Ct. App. 2012), trans. denied. Thus, we reverse only if the trial

      court’s decision is clearly against the logic and effect of the facts and circumstances

      before it. King v. State, 985 N.E.2d 755, 757 (Ind. Ct. App. 2013), trans. denied. We

      will not reweigh evidence, and we will consider conflicting evidence in favor of the

      trial court’s ruling. Id. However, we must also consider uncontested evidence

      favorable to the defendant. Id.


[8]   Error in the admission or exclusion of evidence is to be disregarded as harmless

      unless it affects the substantial rights of a party. Id. The improper admission of

      evidence is harmless when the conviction is supported by substantial independent

      evidence of guilt that satisfies us that there is no substantial likelihood the




         2
             Ind. Code § 35-48-4-6.1(a) (2012).
         3
             Ind. Code § 35-48-4-8.3.
         4
             Ind. Code § 35-48-4-13(b) (2012).


         Court of Appeals of Indiana | Memorandum Decision 82A01-1403-CR-143 | February 3, 2015   Page 3 of 8
      questioned evidence contributed to the conviction. Mathis v. State, 859 N.E.2d

      1275, 1280 (Ind. Ct. App. 2007).


[9]   Wedge asserts the photographs should have been inadmissible because the State

      did not keep all of the vessels in evidence storage. Under the Fourteenth

      Amendment to the United States Constitution, and Article I, Section 12 of the

      Indiana Constitution, a criminal defendant has the right to examine physical

      evidence in the State’s possession. “However, the State does not have ‘an

      undifferentiated and absolute duty to retain and preserve all material that might be

      of conceivable evidentiary significance in a particular prosecution.’” Terry v. State,

      857 N.E.2d 396, 406 (Ind. Ct. App. 2006) (quoting Arizona v. Youngblood, 488 U.S.

      51, 58 (1988)), trans. denied. When dealing with the destruction of evidence

      involving hazardous chemicals and materials, tension arises between the practical

      need for destruction and the prejudice to the substantial right of the defendant to

      examine the physical evidence against him. Jones v. State, 957 N.E.2d 1033, 1037

      (Ind. Ct. App. 2011).


[10] Ind.   Code § 35-33-5-5(e) sets forth the requirements that must be satisfied prior to

      the destruction of physical evidence of drug manufacturing:

         A law enforcement agency may destroy or cause to be destroyed chemicals,
         controlled substances, or chemically contaminated equipment (including drug
         paraphernalia as described in IC 35–48–4–8.5) associated with the illegal
         manufacture of drugs or controlled substances without a court order if all the
         following conditions are met:
         (1) The law enforcement agency collects and preserves a sufficient quantity of
         the chemicals, controlled substances, or chemically contaminated equipment
         to demonstrate that the chemicals, controlled substances, or chemically

         Court of Appeals of Indiana | Memorandum Decision 82A01-1403-CR-143 | February 3, 2015   Page 4 of 8
       contaminated equipment was associated with the illegal manufacture of drugs
       or controlled substances.
       (2) The law enforcement agency takes photographs of the illegal drug
       manufacturing site that accurately depict the presence and quantity of
       chemicals, controlled substances, and chemically contaminated equipment.
       (3) The law enforcement agency completes a chemical inventory report that
       describes the type and quantities of chemicals, controlled substances, and
       chemically contaminated equipment present at the illegal manufacturing site.
       The photographs and description of the property shall be admissible into
       evidence in place of the actual physical evidence.
[11] The   police recovered 135 vessels that contained remnants from methamphetamine

   manufacture, such as “the ammonium nitrate and lye mixture along with the

   binder from the pills, . . . spent lithium, . . . [and] water that was added to further

   the chemical process.” (Tr. at 126.) An officer testified he could not store the 135

   vessels in an evidence storage locker because they were “hazardous.” (Id.) He

   took pictures of the scene and inventoried all items found at the scene, including

   items used to make methamphetamine such as: “16 boxes of pseudophed[rine], 12

   gallon contain[er]s of solvent, 24 quart containers of solvent, 4 containers of lye, 4

   boxes of cold packs, 2 salt, 1 Liquid Fire, lithium batteries, and 7 empty packages

   of batteries.” (Id. at 113.)


[12] We    need not determine whether the State failed to comply with Indiana Code § 35-

   33-5-5(e) because any possible error in the admission of the photographs was

   harmless. The State presented substantial independent evidence Wedge

   manufactured methamphetamine. In the storage locker, the police found multiple

   items used to manufacture methamphetamine. At the residence where Wedge was

   arrested, police found items used to manufacture methamphetamine such as: coffee


       Court of Appeals of Indiana | Memorandum Decision 82A01-1403-CR-143 | February 3, 2015   Page 5 of 8
   filters with methamphetamine in them, a container of camp fuel, eleven empty

   boxes of pseudoephedrine and multiple empty pill blister packs, and a pH test kit.

   This evidence was sufficient to prove Wedge manufactured methamphetamine,

   and therefore any possible error in the admission of the photographs was harmless.

   See Vanzyll v. State, 978 N.E.2d 511, 519 (Ind. Ct. App. 2012) (presence of multiple

   items used in methamphetamine manufacture sufficient to prove Vanzyll

   manufactured methamphetamine).


                                     2.      Sufficiency of the Evidence

[13] Wedge   challenges only his conviction of Class B felony manufacturing

   methamphetamine.

                 When reviewing the sufficiency of the evidence to support a
                 conviction, appellate courts must consider only the probative evidence
                 and reasonable inferences supporting the verdict. It is the fact-finder’s
                 role, not that of appellate courts, to assess witness credibility and
                 weigh the evidence to determine whether it is sufficient to support a
                 conviction. To preserve this structure, when appellate courts are
                 confronted with conflicting evidence, they must consider it most
                 favorably to the trial court’s ruling. Appellate courts affirm the
                 conviction unless no reasonable fact-finder could find the elements of
                 the crime proven beyond a reasonable doubt. It is therefore not
                 necessary that the evidence overcome every reasonable hypothesis of
                 innocence. The evidence is sufficient if an inference may reasonably
                 be drawn from it to support the verdict.
[14] Drane v.   State, 867 N.E.2d 144, 146-47 (Ind. 2007) (quotations, citation, and

   footnote omitted) (emphasis in original). Wedge argues there was no physical

   evidence he manufactured methamphetamine because the State presented only

   photographic evidence of the one pot vessel manufacturing method. As noted

   above, the presence of numerous precursors used in the manufacture of

       Court of Appeals of Indiana | Memorandum Decision 82A01-1403-CR-143 | February 3, 2015   Page 6 of 8
   methamphetamine – including “16 boxes of pseudophed[rine], 12 gallon

   contain[er]s of solvent, 24 quart containers of solvent, 4 containers of lye, 4 boxes

   of cold packs, 2 salt, 1 Liquid Fire, lithium batteries, and 7 empty packages of

   batteries,” (Tr. at 113) – is sufficient to prove Wedge committed Class B felony

   manufacture of methamphetamine. See Vanzyll v. State, 978 N.E.2d 511, 519 (Ind.

   Ct. App. 2012) (presence of multiple items used in methamphetamine manufacture

   sufficient to prove Vanzyll manufactured methamphetamine).5


                                                    Conclusion
[15] Any   error in the admission of the photographs of the 135 one pot vessels was

   harmless, as there was substantial evidence independent of those photographs to

   prove Wedge committed Class B felony manufacturing methamphetamine.

   Additionally, the State presented sufficient evidence to prove Wedge committed

   Class B felony manufacturing methamphetamine. Accordingly, we affirm.


[16] Affirmed.




       5
         In his brief, Wedge states he appeals “his convictions for [sic] dealing methamphetamine as a class B felony
       and maintaining a common nuisance as class D felonies [sic].” (Br. of Appellant at 2.) Wedge provides no
       argument regarding his convictions of Class D felony maintaining a common nuisance, and thus that portion
       of his argument is waived. See Matheney v. State, 688 N.E.2d 883, 907 (Ind. 1997) (failure to make a cogent
       argument results in waiver of that argument). Waiver notwithstanding, we hold the State presented sufficient
       evidence Wedge committed one count of Class D felony maintaining a common nuisance based on the
       evidence Wedge used the storage unit to manufacture methamphetamine and the other count of Class D
       felony maintaining a common nuisance based on the methamphetamine precursors such as pseudoephedrine
       packs and camping fuel found where Wedge was staying. See Ind. Code § 35-48-4-13(b) (2012) (a person
       who knowingly or intentionally maintains a building that is used one or more times for the manufacture of a
       controlled substance commits Class D felony maintaining a common nuisance).

       Court of Appeals of Indiana | Memorandum Decision 82A01-1403-CR-143 | February 3, 2015             Page 7 of 8
Vaidik, C.J., and Friedlander, J., concur.




Court of Appeals of Indiana | Memorandum Decision 82A01-1403-CR-143 | February 3, 2015   Page 8 of 8
