 Pursuant to Ind.Appellate Rule 65(D),

                                                                 FILED
 this Memorandum Decision shall not be
 regarded as precedent or cited before
 any court except for the purpose of
                                                               Jan 10 2013, 8:31 am
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.
                                                                      CLERK
                                                                    of the supreme court,
                                                                    court of appeals and
                                                                           tax court




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

MATTHEW G. GRANTHAM                                  GREGORY F. ZOELLER
Bowers, Brewer, Garrett & Wiley, LLP                 Attorney General of Indiana
Huntington, Indiana
                                                     NICOLE M. SCHUSTER
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

CARL E. BOWMAN,                                      )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )       No. 35A02-1205-CR-431
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                  APPEAL FROM THE HUNTINGTON SUPERIOR COURT
                       The Honorable Jeffrey R. Heffelfinger, Judge
                            Cause No. 35D01-1012-FA-300


                                          January 10, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                     Case Summary

       Carl E. Bowman appeals his convictions for Class A felony dealing in

methamphetamine, Class D felony possession of methamphetamine, Class B felony

conspiracy to commit dealing in methamphetamine, and Class A misdemeanor

possession of paraphernalia. Bowman contends that the trial court erred in instructing the

jury on accomplice liability. He also argues that his convictions violate double-jeopardy

principles.   We conclude that the trial court did not err in instructing the jury and

Bowman’s convictions do not violate double jeopardy. We affirm.

                             Facts and Procedural History

       On November 15, 2010, Huntington City Police Sergeant Jay Kyle and Officer

Ray Pearson received an anonymous tip that a runaway juvenile was in Bowman’s home

at 1428 Walnut Street in Huntington, Indiana. When the officers arrived at Bowman’s

home, Bowman invited them in. Once inside, Officer Pearson spotted a marijuana pipe

and burnt marijuana cigarettes. Officer Pearson asked Bowman for consent to search the

rest of the property but Bowman refused. After Officer Pearson obtained a search

warrant, the officers searched the rest of the home. The officers found items associated

with the manufacture of methamphetamine, including sulfuric acid, lye, fertilizer, lithium

batteries, cold packs, plastic bottles, and pseudoephedrine pills. Some of these items

were found in a black and yellow backpack near the front door. The officers also found

soiled coffee filters and a glass pipe inside a box with Bowman’s divorce papers. The

filters and pipe later tested positive for methamphetamine.




                                            2
        When Bowman spoke with detectives, he admitted that he had purchased

pseudoephedrine for a man named John Aslinger, so that Aslinger could make

methamphetamine to share with him. Bowman also admitted that the coffee filters and

glass pipe found in his home were his and contained methamphetamine. Bowman said he

was addicted to methamphetamine and had smoked it earlier that day.

        The State charged Bowman with six counts: Count 1: Class A felony dealing in

methamphetamine, Count 2: Class C felony possession of chemical reagents or

precursors with intent to manufacture controlled substances,1 Count 3: Class D felony

possession of methamphetamine, Count 4: Class A misdemeanor possession of

paraphernalia, Count 5: Class A misdemeanor possession of marijuana, and Count 6:

Class B felony conspiracy to commit dealing in methamphetamine. The possession-of-

marijuana charge was later dismissed. See Appellant’s App. p. 78.

        At Bowman’s jury trial, the State argued that Bowman was the principal in some

of the charged crimes and an accomplice in others. Sergeant Kyle and Officer Pearson

described the items found in Bowman’s home and Bowman’s statements to them about

his methamphetamine use. Casey Newsome, Bowman’s former roommate, also testified.

Newsome said that in the past, he had witnessed Aslinger make methamphetamine in

Bowman’s kitchen with Bowman’s consent, and that Bowman would shake the

manufacturing bottles “after everything was in it.” Tr. p. 436. Newsome also confirmed

that Aslinger would share the methamphetamine he made with Bowman. According to

Newsome, Bowman and Asligner had an agreement to this effect: “[Y]ou let me use your


        1
           In the jury instructions and closing argument, the trial court and the State refer to this crime as
“illegal drug lab.”
                                                      3
house to make some [methamphetamine] and I’ll give you some out of it.” Id. at 439.

Newsome also testified that he and Bowman would go together to purchase ingredients

used to make the methamphetamine and Bowman would also ask others to purchase

pseudoephedrine for him.            Id. at 440-41.        Newsome said that Aslinger kept the

manufacturing ingredients in a black and yellow backpack. Id. at 442. As to Bowman’s

use of methamphetamine, Newsome testified that Bowman smoked methamphetamine

“quite a bit,” sometimes using a glass pipe. Id. Newsome admitted that he had not been

present at Bowman’s home on the night of Bowman’s arrest.

          The State also called Indiana State Trooper Andy Smith to testify. Trooper Smith

explained how methamphetamine could be manufactured using the items found at

Bowman’s home and the one-pot method.2 Huntington City Police Officers Shane Jones

and Cory Boxell also testified about the search of Bowman’s home and the items found

inside.

          In its closing argument, the State gave a detailed summary of the charges and

evidence against Bowman, starting with Class A felony dealing in methamphetamine:

          Carl Bowman allowed John Aslinger to cook methamphetamine at his
          house because in exchange[,] Carl Bowman got what he desperately
          wanted; methamphetamine and some money. He also aided John Aslinger
          when he shook that bottle of cooking methamphetamine. So he not only
          aided in the manufacturing of methamphetamine by permitting his house to
          be used[,] he also shook the bottle of cooking methamphetamine while in
          his home. And that, ladies and gentleman, is [Class A] dealing in
          methamphetamine . . . .

Id. at 526. The State went on to detail the evidence for the other counts:


          Describing the one-pot method, Trooper Smith said: “It’s usually a twenty[-]ounce or a thirty[-
          2

]ounce bottle. It’s not very big. It’s easy to hide. It’s easy to conceal and to transport. The whole
process is done in a bottle like that and will last from start to finish in about two [] hours.” Tr. p. 277.
                                                     4
      Count two [] is possession of an illegal drug lab as a Class C felony. In that
      particular crime, Carl Bowman allowed John Aslinger to stay in his house
      and he allowed him to keep the backpack that contained the ingredients to
      manufacture methamphetamine.

                              *      *      *      *      *

      For Count [] three, that was possession of methamphetamine, the State
      established that [Bowman] possessed methamphetamine in two different
      ways . . . . There was methamphetamine found in the coffee filters that were
      contained in that [] box in [Bowman’s] living room; they have
      meth[amphetamine]. And then there was a glass pipe or paraphernalia that
      was tested by the State laboratory and it possessed meth[amphetamine] as
      well . . . .
                              *     *      *      *     *

      Count four [] is possession of paraphernalia. [I]n this particular instance,
      again, it’s the glass pipe . . . . How do we know it’s paraphernalia?
      [B]ecause it had meth[amphetamine] inside it . . . so that’s how we know
      that [] pipe was used to smoke or ingest a controlled substance.

                              *      *      *      *      *

      Then Count six is conspiracy to deal in methamphetamine. We already
      established through elements . . . that dealing in methamphetamine includes
      manufacturing methamphetamine. The State proved that [Bowman] and
      John Aslinger entered into . . . an agreement and that agreement was that
      John Aslinger was . . . going to cook meth[amphetamine] and give Carl
      Bowman meth[amphetamine] in exchange for Carl Bowman providing the
      pseudoephedrine.

Id. at 527-530.   After closing arguments, the trial court gave its final instructions,

including the following:

      A person who knowingly or intentionally aids, induces or causes another
      person to commit an offense commits that offense. In order to commit an
      offense by aiding, inducing or causing, the defendant must have knowledge
      that he is aiding, inducing or causing the commission of the offense.

      A person may be convicted of Possession of Methamphetamine, Dealing in
      Methamphetamine or Illegal Drug Lab by aiding another to commit
      Possession of Methamphetamine, Dealing in Methamphetamine or Illegal
      Drug Lab even if the other person has not been prosecuted or convicted of

                                            5
       Possession of Methamphetamine, Dealing in Methamphetamine or Illegal
       Drug Lab.

       In order to commit Possession of Methamphetamine, Dealing in
       Methamphetamine or Illegal Drug Lab by aiding, a person must have
       knowledge that he is aiding the commission of Possession of
       Methamphetamine, Dealing in Methamphetamine or Illegal Drug Lab. To
       be guilty, he does not have to personally participate in the crime nor does
       he have to be present when the crime is committed. Merely being present
       at the scene of the crime is not sufficient to prove that he aided the crime.
       Failure to oppose the commission of the crime is also insufficient to prove
       aiding another to commit the crime. But presence at the scene of the crime
       or failure to oppose the crime’s commission are factors which may be
       considered in determining whether there was aiding another to commit the
       crime.

Appellant’s App. p. 28-29. Bowman did not object to these jury instructions or tender

instructions of his own.

       The jury found Bowman guilty of all five of the remaining counts. At sentencing,

the trial court entered judgment on Counts 1, 3, 4, and 5 only, merging Counts 1 and 2.

Tr. p. 592.    The court imposed an executed sentence of twenty-five years in the

Department of Correction. Bowman now appeals.

                                Discussion and Decision

       On appeal, Bowman contends that the trial court erred in instructing the jury on

accomplice liability.      Specifically, Bowman argues that the accomplice-liability

instruction did not: (1) name the person Bowman was alleged to have aided, (2) contain a

statement about voluntary conduct, and (3) separately list the elements of each offense

Bowman was alleged to have aided. Bowman also argues that his convictions violate

double jeopardy.

                                    I. Jury Instructions


                                            6
       Bowman argues that the trial court erred in instructing the jury on accomplice

liability. We review the trial court’s decision to give a jury instruction for an abuse of

discretion. Brooks v. State, 895 N.E.2d 130, 132 (Ind. Ct. App. 2008). To constitute an

abuse of discretion, the instruction given must be erroneous, and the instructions viewed

as a whole must misstate the law or otherwise mislead the jury. Id.

       However, Bowman did not object to the instruction he challenges on appeal, nor

did he tender any jury instructions of his own. Generally, where a defendant has failed to

object to a jury instruction or failed to tender alternate instructions, the defendant’s claim

of error on appeal is waived; however, we will consider a defendant’s argument that the

error constituted fundamental error. Staley v. State, 895 N.E.2d 1245, 1248 (Ind. Ct.

App. 2008), trans. denied. “The fundamental error doctrine 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.” Id.

       The jury instructions at issue here are instructions five and six. Bowman concedes

that the instructions correctly state the law, but points out that they are not the pattern

jury instructions on accomplice liability. Indiana’s pattern jury instruction on accomplice

liability tracks the language of Indiana Code section 35-41-2-4 and additionally provides:

       To convict the defendant, the State must have proved each of the following
       elements:
             1. [name other person] committed the crime of [name crime aided,
                 induced or caused] in that [name other person] [insert elements
                 of the crime alleged to have been aided, induced or caused]

                  and the defendant


                                              7
              2. knowingly or intentionally

              3. aided [name other person] in committing the [name crime]

                     [or]

              induced [name other person] to commit the [name crime]

                     [or]

              caused [name other person] to commit the [name crime].

       If the State failed to prove each of these elements beyond a reasonable doubt, you
       should find the defendant not guilty.

       If the State did prove each of these elements beyond a reasonable doubt, you
       should find the defendant guilty of [name crime], a Class [insert class of crime]
       [misdemeanor] [felony].

1 Ind. Pattern Jury Instructions (Criminal) 2.11 (2011). Here, the trial court instructed the

jury as follows:

       A person who knowingly or intentionally aids, induces or causes another
       person to commit an offense commits that offense. In order to commit an
       offense by aiding, inducing or causing, the defendant must have knowledge
       that he is aiding, inducing or causing the commission of the offense.

       A person may be convicted of Possession of Methamphetamine, Dealing in
       Methamphetamine or Illegal Drug Lab by aiding another to commit
       Possession of Methamphetamine, Dealing in Methamphetamine or Illegal
       Drug Lab even if the other person has not been prosecuted or convicted of
       Possession of Methamphetamine, Dealing in Methamphetamine or Illegal
       Drug Lab.

       In order to commit Possession of Methamphetamine, Dealing in
       Methamphetamine or Illegal Drug Lab by aiding, a person must have
       knowledge that he is aiding the commission of Possession of
       Methamphetamine, Dealing in Methamphetamine or Illegal Drug Lab. To
       be guilty, he does not have to personally participate in the crime nor does
       he have to be present when the crime is committed. Merely being present
       at the scene of the crime is not sufficient to prove that he aided the crime.
       Failure to oppose the commission of the crime is also insufficient to prove
       aiding another to commit the crime. But presence at the scene of the crime

                                              8
       or failure to oppose the crime’s commission are factors which may be
       considered in determining whether there was aiding another to commit the
       crime.

Appellant’s     App.     p.    27-29.        While     the    preferred     practice     is   to    use

the pattern jury instructions, there is no prohibition against the use of appellate-decision

language in jury instructions. Gravens v. State, 836 N.E.2d 490, 493 (Ind. Ct. App.

2005), trans. denied.

       Bowman’s first challenge to the instructions used here is that they do not name the

person he was alleged to have aided—information that is expressly set forth in the pattern

jury instruction on accomplice liability. But there was no threat of misleading the jury in

this respect.    The evidence at trial pertaining to accomplice liability was that John

Aslinger and Bowman worked together to make methamphetamine. This was reaffirmed

by the State’s detailed closing argument, in which the State repeatedly stated that John

Aslinger was the individual Bowman was alleged to have aided. Supra p. 5-6, Tr. p. 526-

530. There is no error here.

       We also reject Bowman’s claim that the instructions fail to inform the jury that

Bowman must have engaged in voluntary, affirmative behavior.3 We have previously

held that the words such as “aid” and “participate” denote affirmative conduct or action

and sufficiently inform the jury of the affirmative-action requirement. Boney v. State,

880 N.E.2d 279, 294 (Ind. Ct. App. 2008), trans. denied; see also Townsend v. State, 934

N.E.2d 118, 130 (Ind. Ct. App. 2010), trans. denied. In concluding that such language

       3
          To the extent Bowman analogizes this case to Peterson v. State, 699 N.E.2d 701, 705-06 (Ind.
Ct. App. 1998), we find that analogy inapt. The jury instructions in Peterson were significantly shorter
and included no active or passive language. The defendant in Peterson also tendered his own jury
instructions, which the trial court refused. Bowman did not tender his own instructions or object to the
instructions given.
                                                   9
satisfies the affirmative-action requirement, this Court has upheld jury instructions that

further state, by way of contrast, that a person’s presence at the scene or his failure to

oppose the crime—primary examples of passive conduct—are not sufficient in and of

themselves to establish accomplice liability. Id. The instructions here included active

language and a contrasting statement about passive conduct.                   We conclude that the

instructions sufficiently informed the jury of the requirement that Bowman have acted

affirmatively in order to be convicted as an accomplice.

       Bowman’s final jury-instruction challenge is that the instructions “do not separate

out—and list the elements—of each offense Bowman allegedly aided, induced, or caused.

Instead, the instructions group together all of the offenses Bowman supposedly aided.”

Appellant’s Br. p. 8. The State responds that this was done to prevent jury confusion; the

trial court set forth the material elements for accomplice liability and then the elements of

the underlying crimes in separate instructions.            But Bowman does not explain why

grouping the instructions in this way was error. Nor has he shown that he was denied

fundamental due process. We therefore conclude that the trial court did not abuse its

discretion in instructing the jury.4


       4
          Bowman cites case law which holds that “an instruction on accomplice liability which draws the
focus of the jury away from the total circumstances showing the defendant’s knowledge and conduct is
misleading and is appropriately refused.” Peterson, 699 N.E.2d at 706. Bowman briefly argues that

       By way of example only, the instructions inform the jury that Bowman need not
       “personally participate in each act” of the criminal offense. While this statement is
       technically correct, it misleads the jury because it does not inform the jury that Bowman
       must “personally participate” in the criminal act to at least some extent, to wit, by some
       affirmative conduct.

Appellant’s Br. p. 9. But we have already concluded that the instructions did inform the jury that
Bowman must have acted affirmatively. When the “personally participate” language is read in
conjunction with the other portions of the instructions, we cannot say that the jury was misled.
                                                  10
                                     II. Double Jeopardy

         Bowman also contends that his convictions violate the Double Jeopardy Clause of

the Indiana Constitution. Specifically, he claims that they fail the actual-evidence test.

Whether convictions violate double jeopardy is a question of law which we review de

novo. Grabarczyk v. State, 772 N.E.2d 428, 432 (Ind. Ct. App. 2002).

         Article 1, Section 14 of the Indiana Constitution provides that “[n]o person shall

be put in jeopardy twice for the same offense.” In Richardson v. State, 717 N.E.2d 32

(Ind. 1999), our Supreme Court concluded that two or more offenses are the same offense

in violation of Article 1, Section 14 if, with respect to either the statutory elements of the

challenged crimes or the actual evidence used to obtain convictions, the essential

elements of one challenged offense also establish the essential elements of another

challenged offense. Under the actual-evidence test, we examine the actual evidence

presented at trial in order to determine whether each challenged offense was established

by separate and distinct facts. Id. at 53. To find a double-jeopardy violation under this

test, we must conclude that there is “a reasonable possibility that the evidentiary facts

used by the fact-finder to establish the essential elements of one offense may also have

been used to establish the essential elements of a second challenged offense.” Id. There

is no double-jeopardy violation under the actual-evidence test when the evidentiary facts

establishing the essential elements of one offense also establish only one or even several

of the essential elements of a second offense. Spivey v. State, 761 N.E.2d 831, 833 (Ind.

2002).




                                             11
       In order to prove Bowman guilty of Class A felony dealing in methamphetamine

as charged here, the State had to show that Bowman knowingly manufactured or aided in

the manufacture of methamphetamine within 1000 feet of a public park. Ind. Code § 35-

48-4-1.1(b)(3)(B)(ii); see also Appellant’s App. p. 106.       To prove Class D felony

possession of methamphetamine, the State had to show that Bowman knowingly or

intentionally possessed methamphetamine without a valid prescription. Ind. Code § 35-

48-4-6.1(a); see also Appellant’s App. p. 108. To prove Class B felony conspiracy to

commit dealing in methamphetamine, the State had to show that Bowman entered into an

agreement with another person with the intent to manufacture methamphetamine and

committed an overt act in furtherance of that agreement. Ind. Code §§ 35-41-5-2, 35-48-

4-1.1(a); see also Appellant’s App. p. 97.         Finally, to prove Class A misdemeanor

possession of paraphernalia, the State was required to show that Bowman knowingly

possessed a raw material, instrument, device, or other object that he intended to use to

introduce a controlled substance into his body. Ind. Code § 35-48-4-8.3(a)(1); see also

Appellant’s App. p. 110.

       Bowman contends that his convictions for possession of methamphetamine,

conspiracy to commit dealing in methamphetamine, and possession of paraphernalia

cannot stand in light of his conviction for dealing in methamphetamine. We disagree. As

the State described in detail in closing argument, the evidence for each of these

convictions was, in fact, separate and distinct.

       At trial, the State argued that Bowman aided in dealing methamphetamine,

presenting evidence that Bowman allowed Aslinger to cook methamphetamine in his


                                             12
home and Bowman shook methamphetamine that was cooking in bottles. Tr. p. 526. To

establish possession of methamphetamine, the State presented evidence Bowman

possessed methamphetamine in the coffee filters and a glass pipe. Id. at 527-28. The

State also set forth evidence that Bowman had admitted that the items were his, they

contained methamphetamine, and he had smoked methamphetamine earlier that day. Id.

at 528.   To establish possession of paraphernalia, the State presented evidence that

Bowman possessed a glass pipe for smoking methamphetamine. Id. at 528-29. Finally,

to establish conspiracy to deal in methamphetamine, the State presented evidence that

Bowman     and    Aslinger   had   an   agreement   whereby     Aslinger   could   make

methamphetamine at Bowman’s home in exchange for a portion of the methamphetamine

produced there, and that Bowman purchased pseudoephedrine for Aslinger. Id. at 529.

      From this we conclude that separate and distinct evidence was presented regarding

the crimes for which Bowman was convicted. We cannot say that there is a reasonable

possibility that the evidentiary facts used by the jury to establish Bowman’s conviction

for dealing in methamphetamine may also have been used to establish his convictions for

possession of methamphetamine, conspiracy to commit dealing in methamphetamine, and

possession of paraphernalia. There is no double-jeopardy violation.

      Affirmed.

BAILEY, J., and BROWN, J., concur.




                                           13
