      MEMORANDUM DECISION
                                                                       May 13 2015, 10:33 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
      R. Patrick Magrath                                       Gregory F. Zoeller
      Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
      Madison, Indiana
                                                               Larry D. Allen
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Kevin S. Wang,                                          May 13, 2015

      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              40A05-1409-CR-442
              v.                                              Appeal from the Jennings Circuit
                                                              Court
      State of Indiana,                                       The Honorable Jon W. Webster,
      Appellee-Plaintiff.                                     Judge

                                                              Cause No. 40C01-1403-FB-16




      Najam, Judge.


                                         Statement of the Case
[1]   Kevin Wang appeals his convictions for dealing in methamphetamine, as a

      Class B felony; two counts of possession of chemical reagents or precursors


      Court of Appeals of Indiana | Memorandum Decision 40A05-1409-CR-442| May 13, 2015        Page 1 of 10
      with intent to manufacture controlled substances, both as Class D felonies; and

      maintaining a common nuisance, as a Class D felony. Wang presents two

      issues for our review, which we revise and restate as follows:


              1. Whether the trial court committed fundamental error when it
              admitted certain evidence obtained pursuant to a search warrant.

              2. Whether the State presented sufficient evidence to support his
              convictions.


      We affirm.


                                 Facts and Procedural History
[2]   Wang owns a home in Jennings County with a detached garage (“Wang

      residence”). On December 11, 2013, deputies with the Jennings County

      Sheriff’s Department responded to a request for assistance from detectives with

      the Bartholomew County Sheriff’s Department regarding a hot tub and flatbed

      trailer stolen from a store in Bartholomew County but recovered at a driveway

      shared by the Wang residence. Deputies from both Departments responded to

      the Wang residence, where they observed the stolen goods.


[3]   While assisting the Bartholomew County detectives with their investigation

      related to the trailer and hot tub, two plastic totes—one clear and one an

      opaque blue—placed outside of the front of the detached garage caught the

      attention of Detective Jeffrey Jones with the Jennings County Sheriff’s

      Department, who had specialized training in the identification and processing

      of methamphetamine labs. The totes were covered in several inches of snow,

      Court of Appeals of Indiana | Memorandum Decision 40A05-1409-CR-442| May 13, 2015   Page 2 of 10
      and the clear tote was stacked on top of the blue tote, which was full of

      apparent refuse and open at its top. Despite the snow, Detective Jones could

      see through the clear tote, in which he observed yellow aerosol cans labeled

      “starting fluid.” Tr. at 207. And, through the open top of the blue tote,

      Detective Jones observed lithium battery hulls.1 Because of his training,

      Detective Jones recognized both items as common ingredients used in the

      manufacturing of methamphetamine.


[4]   On this basis, Detective Jones requested and received a search warrant for the

      Wang residence. Further, Detective Jones contacted Trooper Marty Mead,

      who worked in the methamphetamine suppression section of the Indiana State

      Police. As a member of that section, Trooper Mead had specialized training in

      the processing and disassembly of methamphetamine labs. Together, Trooper

      Mead, Detective Jones, and other Jennings County deputies executed the

      search warrant at the Wang residence.


[5]   The officers had difficulty accessing the garage to conduct the search because its

      side door was reinforced with steel, locked at the handle, and padlocked. As a

      result, the officers could not kick open the door but had to cut the padlock,

      break a window, and unlock the door from the inside. The home, however,

      provided easy access to the officers. It lacked electricity and was unlocked to




      1
        Detectives Jones’ initial search of the totes was entirely visual. He did not physically search the totes until
      he had obtained a search warrant.

      Court of Appeals of Indiana | Memorandum Decision 40A05-1409-CR-442| May 13, 2015                    Page 3 of 10
      allow a running generator to connect the home to power by means of a cracked

      sliding-glass door through which the generator’s extension cords ran.


[6]   While executing the search warrant, the officers discovered security cameras

      and, in both the garage and home, large quantities of ingredients and

      instrumentalities used in the manufacture of methamphetamine, which

      indicated to the officers that the operation was active and ongoing. The

      discovered items were found intermixed with Wang’s personal property,

      including a laptop bearing the login name “Kevin Wang,” a letter to Wang

      dated December 2, 2013, and a local newspaper dated December 8, 2013.

      Three vehicles registered to Wang were also located at the home, two of which

      were snow covered but one of which showed signs of having been recently

      cleared of snow. And, inside the home, police located Wang’s two dogs, which

      looked nourished and cared for,2 and a kerosene heater in the bedroom.

      Although Wang was not at the home when officers executed the search

      warrant, the home demonstrated signs of having been lived in, such as dirty

      dishes in the kitchen sink and clean dishes in a drying rack located on the

      kitchen counter.


[7]   On March 21, 2014, the State charged Wang3 with one count of dealing in

      methamphetamine, as a Class B felony; two counts of possession of chemical

      reagents or precursors with intent to manufacture controlled substances, both as



      2
          Wang contended that a neighbor cared for the dogs.
      3
          A warrant was issued for Wang’s arrest on March 24, which was served on April 11.

      Court of Appeals of Indiana | Memorandum Decision 40A05-1409-CR-442| May 13, 2015       Page 4 of 10
      Class D felonies; possession of marijuana, as a Class D felony; and maintaining

      a common nuisance, as a Class D felony. The trial court held Wang’s jury trial

      on August 5 through August 7, 2014, at which Wang argued in defense that his

      home was frequently burglarized,4 he had been absent from his home for some

      time, and the methamphetamine lab was established in his absence by burglars.


[8]   At the conclusion of his trial, the jury acquitted Wang of possession of

      marijuana but convicted him on all other charges. Following a sentencing

      hearing on September 4, 2014, the trial court “merged” Wang’s other

      convictions with his conviction for dealing in methamphetamine and sentenced

      him to eighteen years executed in the Indiana Department of Correction.

      Appellant’s App. at 135. This appeal ensued.


                                       Discussion and Decision
                                     Issue One: Admission of Evidence

[9]   Wang first contends that the trial court committed fundamental error when it

      admitted certain evidence against him. As our supreme court stated in

      Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013):


               “Failure to object at trial waives the issue for review unless
               fundamental error occurred.” Treadway v. State, 924 N.E.2d 621,
               633 (Ind. 2010). The fundamental error doctrine is an exception



      4
        In rebuttal, the State offered evidence that Wang had not called 9-1-1 to report a burglary since 2008 and
      that neither the home nor the garage exhibited signs of damage or forced entry. While, because of the
      generator, the home was unlocked when police arrived, Wang testified that he had left the generator in the
      garage the last time he was present at the home.

      Court of Appeals of Indiana | Memorandum Decision 40A05-1409-CR-442| May 13, 2015                 Page 5 of 10
               to the general rule that the failure to object at trial constitutes
               procedural default precluding consideration of the issue on
               appeal. See Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002). We
               have elaborated on the underlying rationale for this exception:

                       There are very strong reasons to require objections
                       at trial to preserve error. Important among them is
                       that the trial court can often correct an error if it is
                       called to the court’s attention. This can result in
                       enormous savings in time, effort and expense to the
                       parties and the court, including avoiding an appeal
                       and retrial. Moreover, if matters can be heard on
                       appeal despite failure to object at trial, parties
                       detecting such an error may be encouraged to take
                       their chances on the result in the trial court despite
                       the error, secure in the knowledge that a retrial is
                       available. Despite these considerations, the doctrine
                       of fundamental error has been invoked to ensure
                       failure to object where appellate courts have found
                       an error to be sufficiently egregious.

               State v. Daniels, 680 N.E.2d 829, 835 (Ind. 1997). Hence, “[t]he
               ‘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.”
               Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). “The error
               claimed must either make a fair trial impossible or constitute
               clearly blatant violations of basic and elementary principles of
               due process.” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010)
               (internal quotation omitted). “This exception is available only in
               egregious circumstances.” Id. (internal quotation omitted).


[10]   Wang asserts that the trial court committed fundamental error when it admitted

       the evidence discovered during the search of the Wang residence. Specifically,


       Court of Appeals of Indiana | Memorandum Decision 40A05-1409-CR-442| May 13, 2015   Page 6 of 10
       he contends that the initial search of the totes located outside of his garage was

       conducted without a warrant and did not satisfy the requisites of the plain view

       exception to the warrant requirement. Moreover, he argues, because the

       evidence discovered during the search of those totes provided the basis for the

       search warrant itself, the search warrant and everything discovered pursuant to

       its execution constitutes fruit of the poisonous tree. Therefore, Wang contends

       that all evidence admitted against him was obtained in violation of the Fourth

       Amendment to the United States Constitution,5 and, because this evidence

       provided the sole basis for his conviction, he concludes that it was fundamental

       error for the trial court to admit the evidence, even in the absence of an

       objection. We disagree.


[11]   Although the Fourth Amendment to the United States Constitution protects

       citizens against unreasonable searches and seizures, it “does not protect objects,

       activities, or statements that a citizen has exposed to the ‘plain view’ of

       outsiders because the individual has expressed no intention of keeping those

       activities private.” Trimble v. State, 842 N.E.2d 798, 801 (Ind. 2006).6 For the

       plain view doctrine to apply, the following conditions must be met: “(1) police



       5
         Wang also states that the search also violated Article 1, Section 11 of the Indiana Constitution, but he
       presents no separate argument on this issue. Thus, his State constitutional argument is waived, and we
       consider only his arguments related to the United States Constitution. See, e.g., White v. State, 772 N.E.2d
       408, 411 (Ind. 2002).
       6
          Although Wang presents no argument that the totes were within the curtilage of his home, we note that
       “the mere fact that an area subjected to police observation is within the curtilage [does not] transform[] a
       warrantless observation or inspection into an unconstitutional search.” Trimble, 842 N.E.2d at 801. “[T]here
       is no Fourth Amendment protection for activities or items that, even if within the curtilage, are knowingly
       exposed to the public.” Id. at 802.

       Court of Appeals of Indiana | Memorandum Decision 40A05-1409-CR-442| May 13, 2015                  Page 7 of 10
       [must] have a legal right to be at the place from which the evidence can be

       plainly viewed; (2) the incriminating character of the evidence [must be]

       immediately apparent; and (3) police [must] have a lawful right of access to the

       object itself.” Eaton v. State, 889 N.E.2d 297, 301 (Ind. 2008).


[12]   Here, Wang concedes that officers had a legal right to be in his driveway, from

       which they observed the totes, but he asserts that “the record fails to

       demonstrate that [Detective Jones] was able to identify items of a clearly

       criminal nature or that the officer had legal access to the items in the tote[s].”

       Appellant’s Br. at 9. However, rather than challenging each element of the

       plain view test individually, Wang proffers a single, overlapping argument: he

       contends that the snow present on top of the totes precluded Detective Jones

       from seeing the starting fluid cans and the lithium battery hulls. And, although

       Wang recognizes that Detective Jones testified that, despite the snow, he could

       see the starting fluid cans and the battery hulls, Wang asserts that Detective

       Jones’ testimony “is[,] on its face[,] directly contradicted by the photographic

       evidence.” Appellant’s Br. at 10. Specifically, Wang points to exhibits 5 and 6

       to support his argument.


[13]   But Wang’s argument asks that we reweigh the evidence, which we will not do.

       See State v. Figgures, 839 N.E.2d 772, 776 (Ind. Ct. App. 2005), trans. denied.

       Detective Jones’ testimony supports the trial court’s decision to admit the

       evidence. Further, as the State correctly notes, Detective Jones testified to

       exhibits 47 through 50, which he stated were photographs that depicted the

       totes in the condition they were in when he first saw them, not exhibits 5 and 6,

       Court of Appeals of Indiana | Memorandum Decision 40A05-1409-CR-442| May 13, 2015   Page 8 of 10
       which were photographs taken during the execution of the search warrant and

       testified to by Detective Mead. Therefore, we cannot state that the trial court

       erred, much less committed fundamental error, when it admitted the evidence

       discovered during the execution of the search warrant against him.


                                Issue Four: Sufficiency of the Evidence

[14]   Next, Wang contends that the State failed to present sufficient evidence to

       support his convictions. Our standard of review for sufficiency of the evidence

       claims is well-settled. Tobar v. State, 740 N.E.2d 109, 111 (Ind. 2000).


               In reviewing the sufficiency of the evidence, we examine only the
               probative evidence and reasonable inferences that support the
               verdict. We do not assess witness credibility, nor do we reweigh
               the evidence to determine if it was sufficient to support a
               conviction. Under our appellate system, those roles are reserved
               for the finder of fact. Instead, we consider only the evidence
               most favorable to the trial court ruling and affirm the conviction
               unless no reasonable fact-finder could find the elements of the
               crime proven beyond a reasonable doubt.
       Pillow v. State, 986 N.E.2d 343, 344 (Ind. Ct. App. 2013) (citations and

       quotation marks omitted).


[15]   Again, Wang does not challenge any specific element of the offenses for which

       he was convicted but, instead, proffers one overlapping argument regarding all

       of his convictions: “Wang was not caught with any contraband in his

       possession.” Appellant’s Br. at 12. In this respect, however, Wang simply asks

       us to credit his testimony that “he was not actually in possession of the

       property . . . while an untold number of people would have had unwelcome


       Court of Appeals of Indiana | Memorandum Decision 40A05-1409-CR-442| May 13, 2015   Page 9 of 10
       access to the home given the fact that it was unsecured and the doors were

       open.” Id. at 13.


[16]   Once more, Wang requests that we reweigh the evidence, which is the province

       of the trial court. The trial court heard evidence that supports a determination

       that Wang was in possession of his home. Namely, three vehicles registered to

       Wang were located at his home, including one that had recently been cleared of

       snow. Moreover, a recent piece of mail addressed to Wang was found inside of

       his home, as was a newspaper dated only three days before the execution of the

       search warrant. The home also demonstrated signs of having been recently

       lived in. Finally, intermixed with ingredients and instrumentalities used in the

       manufacture of methamphetamine, officers found Wang’s two dogs, which

       were fed and cared for, and personal items that belonged to Wang, such as a

       computer bearing his name on its login screen. Therefore, we hold that Wang’s

       conviction was supported by sufficient evidence.


[17]   Affirmed.


       Baker, J., and Friedlander, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 40A05-1409-CR-442| May 13, 2015   Page 10 of 10
