MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               Jan 12 2016, 9:19 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
Elizabeth A. Bellin                                      Gregory F. Zoeller
Elkhart, Indiana                                         Attorney General of Indiana
                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Paul D. Newcomb, Jr.,                                    January 12, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A05-1503-CR-108
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Teresa L. Cataldo,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         20D03-1403-FB-35



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-108 | January 12, 2016      Page 1 of 10
                                Case Summary and Issue
[1]   Following a bench trial, Paul Newcomb, Jr., was convicted of dealing in

      methamphetamine, a Class B felony, and found to be an habitual substance

      offender. Newcomb appeals, raising the sole issue of whether the State

      presented sufficient evidence to support his conviction for dealing in

      methamphetamine. Concluding the evidence was sufficient, we affirm.



                            Facts and Procedural History
[2]   In early March 2014, Town and Country Auto Sales reported a Toyota RAV4

      stolen from its lot in Elkhart, Indiana. A few weeks later, Town and Country

      repossession agents spotted the RAV4 at a gas station in Elkhart. The

      repossession agents parked their vehicles around the RAV4 to block it from

      leaving and exited their vehicles to confront the driver. Newcomb was the

      driver and sole occupant of the RAV4.


[3]   While speaking with Newcomb, one of the repossession agents reached into the

      vehicle, which was running, to remove the key from the ignition. The key did

      not belong to a RAV4, and the engine did not shut off when it was removed.

      Newcomb grabbed a plastic bag from inside the vehicle and attempted to flee,

      but one of the repossession agents tackled him to the ground. The plastic bag

      contained instant cold packs and several bottles of lighter fluid.


[4]   Corporal Dustin Young of the Elkhart Police Department was dispatched to the

      gas station in reference to a fight. When Corporal Young arrived, he learned

      Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-108 | January 12, 2016   Page 2 of 10
      Newcomb’s vehicle was possibly stolen. After confirming with dispatch the

      vehicle had been reported stolen, Corporal Young approached Newcomb and

      requested permission to perform a patdown search. Newcomb consented.


[5]   During the patdown, Corporal Young felt an object in Newcomb’s coat pocket

      and asked Newcomb to identify the object. Newcomb stated the object was a

      scale and gave Corporal Young permission to remove it, but before Corporal

      Young could do so, Newcomb admitted he also had syringes and marijuana on

      his person. Corporal Young uncovered these items, as well as two baggies of

      white pills, a glass pipe with burnt residue, and a plastic baggie with white

      residue. The pills were identified by their markings as an over-the-counter drug

      containing pseudoephedrine, and subsequent forensic testing confirmed the

      white residue in the baggie was methamphetamine.


[6]   While Corporal Young searched Newcomb, Indiana State Police Trooper

      Gretchen Deal searched the RAV4. She uncovered the following items used in

      the manufacture of methamphetamine: additional instant cold packs, additional

      bottles of lighter fluid, a bottle of drain opener, a bag of salt, lithium batteries,

      coffee filters, pliers, and a plastic bottle. Trooper Deal did not find an active

      reaction vessel, but she noted the presence of loose cold pack beads on the

      floorboard in the back of the vehicle.


[7]   Corporal Young confronted Newcomb about the items found in the RAV4.

      Newcomb “acknowledged that he knew what they were” and “said they were

      for a friend,” but he refused to reveal the friend’s identity. Transcript at 262.


      Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-108 | January 12, 2016   Page 3 of 10
      When Corporal Young pressed Newcomb for the friend’s name, Newcomb said

      he would not be answering any more questions. The friend’s identity was never

      ascertained.


[8]   The State charged Newcomb with dealing in methamphetamine by

      manufacturing as a Class B felony and also alleged he was an habitual

      substance offender, based on two prior convictions for possession of

      methamphetamine. A bench trial was held on January 14, 2015. The State

      called several witnesses, including Detective Greg Harder of the Elkhart Police

      Department. Detective Harder is trained to identify and dismantle

      methamphetamine labs. He processed the items recovered from the RAV4 and

      explained the “one-pot method” for manufacturing methamphetamine at trial.

      Id. at 328.


[9]   Detective Harder testified Newcomb possessed all of the necessary precursors

      for manufacturing methamphetamine. The instant cold packs contained

      ammonium nitrate, and the drainer opener contained sodium hydroxide. Id. at

      358-59. When combined, ammonium nitrate and sodium hydroxide create

      anhydrous ammonia, which is mixed with lithium and pseudoephedrine to

      produce methamphetamine. Id. at 359; State’s Ex. 201. To prevent the lithium

      from reacting with moisture in the air, the ingredients are mixed with an

      organic solvent such as lighter fluid. Tr. at 337. Once the reaction is complete,

      the methamphetamine must be extracted from the liquid solvent. See id. at 375.

      The extraction can be accomplished by evaporation or by “crashing out” the

      methamphetamine. Id. at 343-46, 376. Evaporation occurs if the mixture is

      Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-108 | January 12, 2016   Page 4 of 10
       exposed to open air, thereby allowing the solvent to evaporate and the

       methamphetamine to crystalize. Id. at 376. Alternatively, the

       methamphetamine is “crashed out” if the mixture is exposed to hydrochloric

       gas, created by mixing acid with salt. Id. at 343-46. The hydrochloric gas

       causes the methamphetamine to crystalize in the solvent, and coffee filters are

       used to strain the methamphetamine from the liquid. Id.


[10]   Detective Harder also provided an explanation for why the pseudoephedrine

       Newcomb was carrying had been removed from its packaging. In Detective

       Harder’s experience, manufacturers employ “smurfs” to buy pseudoephedrine,

       believing law enforcement can “track boxes to people as a way to try to identify

       meth cooks[.]” Id. at 355. The manufacturer exchanges cash or

       methamphetamine for the pseudoephedrine, and the “smurf” disposes of the

       packaging, which is marked with a production number identifying “what batch,

       what pharmacy, what truck it came off of and what plant it came from.” Id.


[11]   At the conclusion of the evidence, the trial court found Newcomb guilty of

       manufacturing methamphetamine, and Newcomb admitted to being an

       habitual substance offender. The trial court sentenced Newcomb to an

       aggregate sentence of twenty-four years in the Department of Correction, with

       four years suspended to probation. This appeal followed.




       Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-108 | January 12, 2016   Page 5 of 10
                                  Discussion and Decision
                                      I. Standard of Review
[12]   When reviewing the sufficiency of the evidence to support a conviction, we

       consider only the probative evidence and reasonable inferences supporting the

       verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We neither reweigh

       the evidence nor assess the credibility of witnesses. Id. Unless no reasonable

       fact-finder could conclude the elements of the crime were proven beyond a

       reasonable doubt, we will affirm the conviction. Id.


                            II. Dealing in Methamphetamine
[13]   “A person who . . . knowingly or intentionally . . . manufactures . . .

       methamphetamine, pure or adulterated . . . commits dealing in

       methamphetamine, a Class B felony . . . .” Ind. Code § 35-48-4-1.1(a)(1)(A)

       (2006). “Manufacture” is defined as “the production, preparation, propagation,

       compounding, conversion, or processing of a controlled substance.” Ind. Code

       § 35-48-1-18(1) (2001). Although the manufacturing process need not be

       completed, the process must have been started in order to find a defendant

       guilty of manufacturing methamphetamine. Iddings v. State, 772 N.E.2d 1006,

       1016-17 (Ind. Ct. App. 2002), trans. denied.


[14]   The State contends Newcomb had started the manufacturing process by

       removing the pseudoephedrine pills and the cold pack beads from their

       packaging, thereby engaging in “preparation.” See Ind. Code 35-48-1-18(1)

       (2001). The methamphetamine residue, the State contends, “gives rise to the
       Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-108 | January 12, 2016   Page 6 of 10
       inference that [Newcomb] has previously manufactured methamphetamine,

       had used it all, and was preparing to manufacture more.” Brief of Appellee at

       10. Newcomb argues preparing is not the same as actually starting the

       manufacturing process; he points to the fact that many of the items recovered

       were unopened and did not appear to have ever been used to manufacture

       methamphetamine.


[15]   We addressed a similar set of facts in Dawson v. State, 786 N.E.2d 742 (Ind. Ct.

       App. 2003), trans. denied. In Dawson, the defendant was convicted of

       manufacturing methamphetamine based on his possession of crushed

       ephedrine, stripped lithium batteries, anhydrous ammonia, muriatic acid, camp

       fuel, tubing, and coffee filters. The police did not find an active reaction vessel.

       The defendant argued the evidence was insufficient to support his conviction

       for manufacturing methamphetamine because the process of manufacturing had

       not yet begun. The defendant “claim[ed] that having the crushed up pills does

       not equate to the start of the manufacturing process” and that “manufacturing

       does not begin until some of the precursors have been combined.” Id. at 748.

       At trial, a police officer testified “it is standard practice for individuals to crush

       up the pills which contain ephedrine before soaking them in denatured alcohol

       so that the ephedrine can be extracted from the pill binders.” Id. at 747-48. We

       held “once an individual crushes up pills in order to separate the ephedrine

       from the pill binders, the manufacturing process has begun.” Id. at 748.


[16]   Likewise, in Harrison v. State, 32 N.E.3d 240 (Ind. Ct. App. 2015), trans. denied,

       the defendant was convicted of manufacturing methamphetamine based on his

       Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-108 | January 12, 2016   Page 7 of 10
       possession of crushed pseudoephedrine, ammonia, antifreeze, tubing, and a

       glass jar. The police did not find an active reaction vessel or any lithium, and

       the defendant argued the evidence was insufficient to support his conviction for

       manufacturing. We held the jury could reasonably conclude the defendant

       manufactured methamphetamine because he possessed every

       methamphetamine precursor except lithium and a police officer “described

       what he saw in the vehicle as a ‘very early stage’ methamphetamine lab . . . .”

       Id. at 246-48.


[17]   In the present case, Newcomb possessed every methamphetamine precursor

       and the finished product, but the police did not find an active reaction vessel.

       Unlike Dawson and Harrison, however, the pseudoephedrine pills had not been

       crushed. Newcomb possessed whole pills, and in light of Detective Harder’s

       testimony regarding “smurfs,” tr. at 355, we are unpersuaded that removing the

       pills from their packaging constitutes the start of the manufacturing process.

       Although Newcomb had assembled all of the necessary components, we

       conclude the manufacturing process had not yet begun when the police

       searched the RAV4.


[18]   Nonetheless, we believe the evidence was sufficient to support Newcomb’s

       conviction. “In Indiana there is no distinction between the responsibility of a

       principal and an accomplice.” Wise v. State, 719 N.E.2d 1192, 1198 (Ind. 1999).

       As the State argues, Newcomb admitted he knew the purpose of precursors,

       “said they were for a friend,” and possessed the finished product. Tr. at 262.

       The “friend” was never identified, but Indiana Code section 35-41-2-4 provides,

       Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-108 | January 12, 2016   Page 8 of 10
               A person who knowingly or intentionally aids, induces, or causes
               another person to commit an offense commits that offense, even
               if the other person:
                       (1) has not been prosecuted for the offense;
                       (2) has not been convicted of the offense; or
                       (3) has been acquitted of the offense.


[19]   Accomplice liability is not considered a separate crime, but merely a separate

       basis of liability for the crime charged. Hampton v. State, 719 N.E.2d 803, 807

       (Ind. 1999). And even if the State charged a defendant as the principal, a

       defendant may be convicted on evidence of aiding another person in

       committing the offense. Jester v. State, 724 N.E.2d 235, 241 (Ind. 2000). In

       addition, a defendant need not have participated in every element of the offense

       to be convicted as an accomplice. Lothamer v. State, No. 92A05–1501–CR–26,

       2015 WL 5732830, at *2 (Ind. Ct. App. Sept. 30, 2015), trans. denied. Relevant

       here, we have previously held a person can be guilty of manufacturing

       methamphetamine even though the person does not actually “cook” the

       product. Id. at *2-*3 (affirming the defendant’s conviction for manufacturing

       methamphetamine as an accomplice where the defendant merely allowed the

       principal to “cook” in his fiancée’s trailer).


[20]   Given the fact Newcomb possessed all of the necessary precursors for

       manufacturing methamphetamine as well as methamphetamine residue and a

       scale, the trial court reasonably concluded Newcomb was personally involved

       in the manufacture of methamphetamine. Although we do not believe the

       evidence establishes the manufacturing process had begun, we conclude


       Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-108 | January 12, 2016   Page 9 of 10
       Newcomb’s admissions gave rise to accomplice liability. The evidence shows

       Newcomb at least aided another person in manufacturing methamphetamine,

       which is sufficient to support his conviction.



                                               Conclusion
[21]   The State presented sufficient evidence to support Newcomb’s conviction for

       dealing in methamphetamine as a Class B felony. We therefore affirm

       Newcomb’s conviction.


[22]   Affirmed.


       Barnes, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-108 | January 12, 2016   Page 10 of 10
