MEMORANDUM DECISION                                                              FILED
                                                                            Feb 14 2017, 10:07 am

Pursuant to Ind. Appellate Rule 65(D), this                                      CLERK
Memorandum Decision shall not be regarded as                                 Indiana Supreme Court
                                                                                Court of Appeals
precedent or cited before any court except for the                                and Tax Court

purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Katherine Modesitt Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Kenneth M. Jordan,                                       February 14, 2017
Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         44A03-1603-CR-503
        v.
                                                         Appeal from the Lagrange
State of Indiana,                                        Superior Court
Appellee-Plaintiff.                                      The Honorable Lisa M.
                                                         Bowen-Slaven, Judge
                                                         Trial Court Cause No.
                                                         44D01-1408-F4-12



Riley, Judge.




Court of Appeals of Indiana | Memorandum Opinion 44A03-1603-CR-503 | February 14, 2017           Page 1 of 30
                            STATEMENT OF THE CASE
[1]   Appellant-Defendant, Kenneth Jordan (Jordan), appeals his conviction for

      Count I, dealing in methamphetamine, a Level 4 felony, I.C. § 35-48-4-1.1(a)

      (2014); Count II, possession of methamphetamine, a Level 5 felony, I.C. § 35-

      48-4-6.1(b)(2) (2014); Count III, possession of precursors, a Level 6 felony, I.C.

      § 35-48-4-14.5(e) (2014); Count IV, maintaining common nuisance, a Level 6

      felony, I.C. § 35-48-4-13(b)(1) (2014); and Count V, possession of

      paraphernalia, Class A misdemeanor, I.C. § 35-48-4-8.3(a)(1) (2014).


[2]   We affirm.


                                                  ISSUES
[3]   Jordan raises four issues on appeal, which we restate as the following five

      issues:

      (1) Whether the trial court abused its discretion in admitting some of the State’s

      exhibits;

      (2) Whether the search conducted at Jordan’s home violated Jordan’s rights

      under Article 1, Section 11 of the Indiana Constitution;

      (3) Whether the trial court abused its discretion in admitting Jordan’s

      statements regarding the existence of a methamphetamine lab absent Miranda

      warnings;

      (4) Whether there was sufficient evidence to support Jordan’s conviction; and

      (5) Whether Jordan’s conviction for dealing in methamphetamine, possession



      Court of Appeals of Indiana | Memorandum Opinion 44A03-1603-CR-503 | February 14, 2017   Page 2 of 30
      of methamphetamine, and possession of precursors violated the prohibition

      against double jeopardy under the Indiana Constitution.


                  FACTS AND PROCEDURAL HISTORY
[4]   On August 7, 2014, the Noble County Probation Department decided to

      conduct a routine probation search of Jordan’s home because Jordan had failed

      a drug test and had missed several appointments with his probation officer,

      John Wheeler (Wheeler). During that time in question, Jordan was on

      probation for possession of marijuana and possession of paraphernalia through

      the Noble Superior Court. According to Wheeler, Jordan had provided the

      probation department with his parents’ address as his place of abode; however,

      when Wheeler and another probation officer, Samantha Hammond

      (Hammond), arrived at Jordan’s parents’ home, Jordan was not present.

      Jordan’s parents allowed the probation officers to search the house, but there

      was nothing suspicious there. Officer Tyler Randol (Officer Randol) and

      Officer Nate Sprunger (Officer Sprunger) of the Noble County Police

      Department, who were assisting with the probation search, were radioed

      Jordan’s correct address—8375 East 800 South, LaGrange County, Indiana.

      The officers communicated Jordan’s new location with Wheeler and

      Hammond.


[5]   Officer Randol and Officer Sprunger were first to arrive at Jordan’s residence,

      where they encountered Aleshia Messer (Messer) standing in the driveway.

      According to Messer, she “was there to get a bag of clothes that were at


      Court of Appeals of Indiana | Memorandum Opinion 44A03-1603-CR-503 | February 14, 2017   Page 3 of 30
      [Jordan’s].” (Transcript p. 87). Messer indicated that earlier that day, around

      the garage area, she had observed Jordan shaking a “pop bottle.” (Tr. p. 88).

      At the officers’ request, Messer knocked on Jordan’s front door and requested

      Jordan to step outside of his house. Jordan did not come out right away, and

      when he did exit, he appeared nervous and spoke fast. The officers explained

      that they were there assist to Wheeler and Hammond with their probation

      search.


[6]   Jordan was excited and moving around. For safety reasons, the officers

      temporarily restrained Jordan in handcuffs and subsequently conducted a safety

      sweep of Jordan’s home ahead of the probation search. During the search of

      Jordan’s home, the probation officers discovered items associated with the

      manufacture of methamphetamine, including a smoking device containing a

      white powdery substance, foil with burnt residue, small plastic baggies, and a

      salt grinder. In the presence of the officers, Jordan volunteered information

      about the existence of a methamphetamine lab inside his garage. Jordan led the

      officers to the garage where the officers recovered a clear plastic bottle with a

      bubbling substance situated in an old radio box. Due to the presence of the

      methamphetamine lab, the officers read Jordan his Miranda rights. In turn,

      Jordan requested Officer Randol to “get the stuff out here.” (Tr. p. 69). When

      Officer Randol asked Jordan if he wanted the officers to go inside his home and

      remove the meth-related items found during the probationary search, as well as

      the clear plastic bottle located in the garage, Jordan stated “yes . . . get them out

      of the house.” (Tr. p. 69).


      Court of Appeals of Indiana | Memorandum Opinion 44A03-1603-CR-503 | February 14, 2017   Page 4 of 30
[7]   Due to what he perceived as an active methamphetamine lab in Jordan’s

      garage, Officer Randol contacted the Indiana State Police to process the scene

      and safely dispose of the items. A subsequent search by Indiana State Trooper

      Andrew Smith (Trooper Smith) yielded other items associated in the

      manufacture of methamphetamine, including a half-full 32 oz. bottle of

      Coleman fuel, a meat grinder containing water softener salt pellets, a short pink

      plastic straw with a white powdery substance, a canister of sea salt, two burnt

      foils, numerous small plastic baggies, a burnt glass pipe, a plastic measuring cup

      with residue in it, pliers, several burnt lithium battery casings that were cut in

      half, an ammonia reaction vessel, a 20 oz. bottle of sulfuric acid drain cleaner, a

      white granular substance that tested as ammonia sulfate, two small plastic

      Ziploc bags containing an off-white substance that tested positive for lye and

      ammonia nitrate, coffee filters, a large digital scale, three packaged needles, and

      hydrogen peroxide. Furthermore, through a field test, Trooper Smith

      determined that the plastic bottle located in the garage served as the vessel for

      an active one-pot methamphetamine lab. In addition, the Indiana State Police

      Laboratory established that a white substance recovered from Jordan’s home

      was methamphetamine weighing 0.54 grams.


[8]   On August 8, 2014, the State charged Jordan with Count I, dealing in

      methamphetamine, a Level 4 felony; Count II, possession of

      methamphetamine, a Level 5 felony; Count III, possession of precursors, a

      Level 6 felony; Count IV, maintaining a common nuisance, a Level 6 felony;

      and Count V, possession of paraphernalia, a Level 6 felony. On October 29,


      Court of Appeals of Indiana | Memorandum Opinion 44A03-1603-CR-503 | February 14, 2017   Page 5 of 30
      2015, Jordan, through counsel, filed a motion for a speedy trial. Accordingly,

      the matter was set for a two-day jury trial beginning on December 17, 2015;

      however, due to Jordan’s motion for waiver of jury trial on December 11, 2016,

      the matter was set for a bench trial.


[9]   Jordan’s bench trial was held on December 17, 2015. During trial, Jordan

      objected to the admission of the probation order from Noble Superior Court for

      his prior drug offenses; however, the trial court admitted the order pursuant to

      the business record exception under Indiana Evidence Rule 803(6). Jordan also

      objected to the admission of the statements he made to the officers during the

      search, claiming that he had not been advised his Miranda rights. On that issue,

      the trial court denied Jordan’s objection indicating that Jordan was not in

      custody nor was he interrogated when he uttered the statements. Additionally,

      Jordan objected to the search of his residence and he moved to suppress the

      photographs taken by Trooper Smith based on grounds that the search violated

      his rights under Article 1, Section 11 of the Indiana Constitution, all of which

      the trial court denied. Over Jordan’s objection, the trial court admitted the

      Indiana State Police Laboratory certificate of lab analysis, depicting that a

      white substance recovered from Jordan’s home was 0.54 grams of

      methamphetamine. At the close of the parties’ arguments, the trial court took

      the matter under advisement. On December 31, 2015, the trial court entered

      findings of facts and legal conclusions finding Jordan guilty of Counts I through

      IV, and guilty of Class A misdemeanor possession of paraphernalia, the lesser

      included offense of Count V. Jordan’s sentencing hearing was held on


      Court of Appeals of Indiana | Memorandum Opinion 44A03-1603-CR-503 | February 14, 2017   Page 6 of 30
       February 1, 2016. At the close of the evidence, the trial court sentenced Jordan

       to ten-years with two years suspended to probation for Count I. On Count II,

       Jordan was sentenced to four years. As for Counts III, IV and V, Jordan was

       sentenced to concurrent one-year sentences. Counts I and II were to run

       consecutively; and Counts III, IV and V were to run concurrently with Count

       II.


[10]   Jordan now appeals. Additional facts will be provided as necessary.


                           DISCUSSION AND DECISION
                                           I. Admission of Evidence

[11]   A trial court has broad discretion in ruling on the admissibility of evidence, and,

       on review, we will disturb its ruling only on a showing of abuse of discretion.

       Sparkman v. State, 722 N.E.2d 1259, 1262 (Ind. Ct. App. 2000). When

       reviewing a decision under an abuse of discretion standard, we will affirm if

       there is any evidence supporting the decision. Id. A claim of error in the

       admission or exclusion of evidence will not prevail on appeal unless a

       substantial right of the party is affected. Ind. Evidence Rule 103(a). In

       determining whether error in the introduction of evidence affected a defendant’s

       substantial rights, we assess the probable impact of the evidence on the jury.

       Sparkman, 722 N.E.2d at 1262.


                                       A. Business Records Exception

[12]   Jordan first challenges the trial court’s admission of State’s Exhibit 1, his

       probation order from Noble Superior Court. He argues that State’s Exhibit 1

       Court of Appeals of Indiana | Memorandum Opinion 44A03-1603-CR-503 | February 14, 2017   Page 7 of 30
       was hearsay, and therefore should not have qualified for admission under the

       business records exception.


[13]   Hearsay is an out-of-court statement offered into evidence to prove the truth of

       the matter asserted. Indiana Evidence Rule 801(c). Hearsay is inadmissible

       unless it falls under a recognized exception. Evid. Rule 802. One such

       exception exists for records that satisfy the requirements of Evid. Rule 803(6),

       which provides, in part,

               The following are not excluded by the rule against hearsay, regardless
               of whether the declarant is available as a witness:

               ....

               (6) Records of a Regularly Conducted Activity. A record of an act,
               event, condition, opinion, or diagnosis if:

               (A) the record was made at or near the time by—or from information
               transmitted by—someone with knowledge;

               (B) the record was kept in the course of a regularly conducted activity
               of a business, organization, occupation, or calling, whether or not for
               profit;

               (C) making the record was a regular practice of that activity;

               (D) all these conditions are shown by the testimony of the custodian or
               another qualified witness, or by a certification that complies with Rule
               902(11) or (12) or with a statute permitting certification; and

               (E) neither the source of information nor the method or circumstances
               of preparation indicate a lack of trustworthiness.

[14]   It is well established that the reliability of business records stems from the fact

       that the organization depends on them to operate, from the sense that they are

       subject to review, audit, or internal checks, from the precision engendered by

       Court of Appeals of Indiana | Memorandum Opinion 44A03-1603-CR-503 | February 14, 2017   Page 8 of 30
       the repetition, and from the fact that the person furnishing the information has

       a duty to do it correctly. Stahl v. State, 686 N.E.2d 89, 92 (Ind. 1997).

       Therefore, the proponent of a business record can satisfy the requirements of

       Evidence Rule 803(6) “by calling a witness who has a functional understanding

       of the record keeping process of the business with respect to the specific entry,

       transaction, or declaration contained in the document.” Rolland v. State, 851

       N.E.2d 1042, 1045 (Ind. Ct. App. 2006). “The witness need not have

       personally made or filed the record or have firsthand knowledge of the

       transaction represented by it in order to sponsor the exhibit.” Id. Moreover, a

       sponsoring witness is not required to testify that he knows the person who

       recorded the information had personal knowledge of the transactions. Payne v.

       State, 658 N.E.2d 635, 645 (Ind. Ct. App. 1995), trans. denied. Records kept in

       the regular course of business are presumed to have been created by someone

       with knowledge, unless there is a showing to the contrary. Id.


[15]   In the instant case, during the State’s case-in-chief the State presented Wheeler,

       Jordan’s probation officer, with a document which was yet to be marked as

       State’s Exhibit 1. Jordan, through counsel, objected to the admission of that

       exhibit on the basis that Wheeler did not prepare, or seemed to have had

       personal knowledge of the document. In an effort of establishing the

       foundational requirements prior to the admission of State’s Exhibit 1 under the

       business record exception, the following exchange occurred.

               Q. Are those [] records kept in the common course of business at your
               Probation Department?


       Court of Appeals of Indiana | Memorandum Opinion 44A03-1603-CR-503 | February 14, 2017   Page 9 of 30
        A. Which records [?]


        Q. That.


        A. Yes.


        Q. This record?


        A. Yes. That is kept in their probation file. We have intake officers
        who do intakes on probation. Those days rotate. It looks like the
        intake was done by [] probation officer Jason White on January 30th
        of 2014.


(Tr. p. 22). Jordan, through counsel, maintained that that the statements

contained in the exhibit was hearsay and that the State did not present the

necessary evidence to have them admitted under the business records exception

to the hearsay rule. After hearing the parties’ arguments, the trial court offered

its ruling stating that:

        Well, I think [] my ruling has been that this is a probation officer in a
        department, that this is a document that is commonly prepared by all
        of the officers in that department. It is [] a routine document that all of
        the officers are familiar with, and that it does fall within the business
        records exception, which is an exception to the hearsay rule. So my
        ruling is that your objection is overruled. There has been an offer to
        admit the document. I will show it admitted into evidence. State’s
        Exhibit One is admitted into evidence.


(Tr. p. 25). Jordan’s argument on appeal is that Wheeler did not specifically

state that the document was a probation order and further claims that Wheeler

“merely testified that an unidentified record was kept in the usual course of


Court of Appeals of Indiana | Memorandum Opinion 44A03-1603-CR-503 | February 14, 2017   Page 10 of 30
       business at the probation department. [] Neither Wheeler nor the prosecutor

       specified” that “State’s Exhibit 1 was that document.” (Appellant’s Amended

       Br. p. 19) (internal citation marks omitted). Notwithstanding Jordan’s

       assertion, it is apparent from the record that Wheeler was presented with State’s

       Exhibit 1 before testifying, and after viewing at it, he appeared to have had a

       functional understanding of the document. Through Wheeler’s testimony, the

       State established that State’s Exhibit 1 was kept in the regular course of the

       Noble County Probation Department business, and the information contained

       in that exhibit was compiled and placed in the probation file by an intake officer

       who had personal knowledge of the transaction and who had a duty to generate

       accurate information. Accordingly, we conclude that the State laid a proper

       foundation for the admission of State’s Exhibit 1 and the trial court did not

       abuse its discretion in admitting it under the business record exception.


                                             B. Chain of Custody

[16]   Jordan also contests the admission of State’s Exhibit 4, a certificate of lab

       analysis from the Indiana State Police Laboratory establishing that a white

       powdery substance recovered from Jordan’s home was methamphetamine.

       According to Jordan, the State failed to establish a sufficient chain of custody

       for the methamphetamine.


[17]   To establish a proper chain of custody, the State must give reasonable

       assurances that the evidence at issue remained in an undisturbed condition.

       Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002). The State bears a higher

       burden to establish the chain of custody of fungible evidence whose appearance
       Court of Appeals of Indiana | Memorandum Opinion 44A03-1603-CR-503 | February 14, 2017   Page 11 of 30
       is indistinguishable to the naked eye. Id. However, the State need not establish

       a perfect chain of custody, and once the State strongly suggests the exact

       whereabouts of the evidence, any gaps in the chain of custody goes to the

       weight of the evidence, not its admissibility. Id. Moreover, there is a

       presumption of regularity in the handling of evidence by officers, and there is a

       presumption that officers exercise due care in handling their duties. Id. To

       mount a successful challenge to the chain of custody, one must present evidence

       that does more than raise a mere possibility that the evidence may have been

       tampered with. Id.


[18]   Jordan argues that there is a gap in the chain of custody because Officer Randol

       did not explicitly state the original location of the clear plastic bag containing

       the methamphetamine. Jordan adds that there was no evidence that the plastic

       bag was sealed prior to its submission to the Indiana State Police Laboratory for

       testing. We find that Jordan’s argument regarding an alleged gap in the chain

       of custody goes to the weight of the evidence, and not to its admissibility.

       McCotry v. State, 722 N.E.2d 1265, 1267 (Ind. Ct. App. 2000). Further, when

       the evidence is handled by public officers, there is a presumption that they use

       due care and that the evidence is handled with regularity. Id. Turning to the

       record, Officer Randol testified that he offered a plastic bag containing white

       powdery residue to the State lab for testing. Although Officer Randol could not

       recall the specific location of where he seized the bag, he indicated that it was

       recovered in the home that “was searched on August 7th.” (Tr. p. 154).

       Notably, there were no irregularities specified in the certificate of lab analysis.


       Court of Appeals of Indiana | Memorandum Opinion 44A03-1603-CR-503 | February 14, 2017   Page 12 of 30
       Specifically, the reported stated, “sealed plastic bag containing a small ziplock

       [sic] plastic bag containing an off white chunky substance.” (State’s Exh. 4).

       Here, we find that Officer Randol’s testimony provided a reasonable assurance

       that the clear plastic bag containing the methamphetamine remained

       undisturbed as it passed from his custody to the State lab for testing. As noted,

       the State is under no obligation to establish a perfect chain of custody, and

       Jordan has offered no evidence to overcome the presumption of regularity and

       due care exercised in the handling of the evidence. Accordingly, we conclude

       that the trial court did not abuse its discretion in admitting the

       methamphetamine into evidence.


[19]   To the extent that Jordan now claims that the trial court abused its discretion in

       admitting State’s Exhibit 4 because it was not connected to this case, he has

       waived this argument on appeal. At trial, Jordan only objected to the

       admission of State’s Exhibit 4 on grounds that the State had failed to establish

       chain of custody and that he was denied a right to cross-examine the witness.

       As a general rule, the failure to object at trial results in a waiver of an issue on

       appeal. Bruno v. State, 774 N.E.2d 880, 883 (Ind. 2002). The rule of waiver in

       part protects the integrity of the trial court in that the trial court cannot be found

       to have erred as to an argument that it never had an opportunity to consider.

       T.S. v. Logansport State Hosp., 959 N.E.2d 855, 857 (Ind. Ct. App. 2011), trans.

       denied. Moreover, a defendant cannot object on one ground at trial and then

       present a different claim of error on appeal. See Lyons v. State, 976 N.E.2d 137,

       141 (Ind. Ct. App. 2012).


       Court of Appeals of Indiana | Memorandum Opinion 44A03-1603-CR-503 | February 14, 2017   Page 13 of 30
                           II. Article 1, Section 11 of the Indiana Constitution

[20]   Jordan contends that the probationary and law enforcement search conducted

       at 8375 East 800 South property violated his rights under Article 1, Section 11

       of the Indiana Constitution. 1, 2 We initially note that the purpose of Article 1,

       Section 11 of the Indiana Constitution “is to protect from unreasonable police

       activity those areas of life that Hoosiers regard as private.” State v. Quirk, 842

       N.E.2d 334, 339-40 (Ind. 2006). “The provision must receive a liberal

       construction in its application to guarantee the people against unreasonable

       search and seizure.” Id. at 340. Under the Indiana Constitution, the legality of




       1
        Although Jordan argues that the search also violated his rights under the Fourth Amendment of the United
       States Constitution, he appears to have abandoned his Fourth Amendment challenge on appeal since he only
       provides an analysis under the Indiana Constitution. It is well established that failure to make a cogent
       argument constitutes waiver of the issue on appeal. See Ind. Appellate Rule 46(A)(8).
       2
         Jordan claims that the search was illegal because the State failed to prove that he resided at 8375 East 800
       South, LaGrange County, Indiana. To the extent that Jordan denies living at the searched house, it might
       bring about a potential standing issue, and in essence without standing he would not have been allowed to
       challenge the search under the Indiana Constitution. Our supreme court has held that to challenge a search
       under the Indiana Constitution, “a defendant must establish ownership, control, possession, or interest” in
       the premises searched. Campos v. State, 885 N.E.2d 590, 598 (Ind. 2008) (quoting Peterson v. State, 674 N.E.2d
       528, 534 (Ind. 1996)). In the instant case, the record is replete with references establishing that Jordan did
       exercise exclusive control over the house at 8375 East 800 South, in LaGrange County; therefore, it gave him
       standing to challenge the search. At trial, Officer Randol testified that when he arrived at the 8375 East 800
       South Property, he encountered Messer standing in the driveway, and Messer stated that she “was there to
       get a bag of clothes that were at [Jordan’s].” (Tr. p. 87). In addition, at the officers’ instruction, Messer
       requested Jordan to exit the house. When the officers encountered Jordan, Jordan offered information
       regarding the existence of a meth lab thus depicting that he was familiar with the layout of the property.
       Here, the evidence leads us to the conclusion that Jordan had control, possession or interest of the home
       located at 8375 East 800 South, LaGrange County, Indiana. Accordingly, Jordan’s argument that he did not
       reside at said property therefore fails.

       Court of Appeals of Indiana | Memorandum Opinion 44A03-1603-CR-503 | February 14, 2017          Page 14 of 30
       a search depends on whether government conduct was reasonable under the

       totality of the circumstances. Tuggle v. State, 9 N.E.3d 726, 735 (Ind. Ct. App.

       2014), trans. denied.


[21]   In response to Jordan’s contention that the search was unconstitutional, the

       State claims that the search conducted on August 7, 2014, was authorized

       because Jordan was on probation at the time, and it further directs us to

       Condition 6 of Jordan’s probation order, stating:

               You shall waive your right against search and seizure, and permit a
               Probation Officer or any law enforcement acting on your Probation
               Officer’s behalf to search your person, residence, motor vehicle, or any
               location where your personal property may be found to ensure
               compliance with probation.


       (State Exh. 1). Notwithstanding the State’s response, Jordan contends that

       “[U]nder the circumstances, even if the State proved” that he was on probation,

       “it was still required to establish it had reasonable suspicion” for the search.

       (Appellant’s Amended Br. p. 36) (emphasis added).


[22]   Most recently, in State v. Vanderkolk, 32 N.E.3d 775, 779 (Ind. 2015), a Fourth

       Amendment case, our supreme court very broadly held that probationers “who

       have consented or been clearly informed that the conditions of their probation .

       . . unambiguously authorize warrantless and suspicionless searches, may

       thereafter be subject to such searches during the period of their probationary . . .

       status.” In the instant case, the State maintains that the search complied with

       these constitutional dictates and that the need for reasonable suspicion was


       Court of Appeals of Indiana | Memorandum Opinion 44A03-1603-CR-503 | February 14, 2017   Page 15 of 30
       obviated because Jordan waived his rights as to search and seizure and agreed,

       by virtue of the terms and conditions of his probation, to warrantless and

       suspicionless searches of his property. We recognize that

               the crux of the Vanderkolk holding is that a probation search need not
               be supported by reasonable suspicion and may be predicated solely
               upon a valid search condition contained in the conditions of probation.
               Thus, a probationer’s argument that a probation search lacked
               reasonable suspicion is unequivocally no longer a legitimate objection
               under the Fourth Amendment and Vanderkolk. Instead, only the
               method of execution, and not the scope, of the search would be subject
               to a reasonableness challenge.


       Hodges v. State, 54 N.E.3d 1055, 1059, (Ind. Ct. App. 2016) (internal citations

       omitted).


[23]   While the language of Article 1, section 11 is virtually identical to its Fourth

       Amendment counterpart, our supreme court has “made an explicit point to

       interpret and apply Section 11 independently from federal Fourth Amendment

       jurisprudence.” Mitchell v. State, 745 N.E.2d 775, 786 (Ind. 2001). Generally,

       under Indiana law, the reasonableness of a search or seizure turns on the

       “totality of the circumstances” and a balance of: (1) the degree of concern,

       suspicion, or knowledge that a violation has occurred; (2) the degree of

       intrusion the method of the search imposes on the citizen’s ordinary activities;

       and (3) the extent of law enforcement needs. Litchfield v. State, 824 N.E.2d 356,

       361 (Ind. 2005).


[24]   However, in light of Vanderkolk’s expansive endorsement of warrantless and

       suspicionless probation searches, this court in Hodges clarified that a separate
       Court of Appeals of Indiana | Memorandum Opinion 44A03-1603-CR-503 | February 14, 2017   Page 16 of 30
       Litchfield analysis was unnecessary and further specified that it “would have

       made little sense for our Supreme Court to pen such a broad holding if the

       Court had simply intended to continue a requirement of prior reasonable

       suspicion for any probation-related search.” Hodges, 54 N.E.3d at 1060. In

       keeping with the Vanderkolk analysis, which established that lack of reasonable

       suspicion is no longer a legitimate objection to the constitutionality of Indiana

       probationary searches, we conclude that the search in the instant case did not

       violate Jordan’s rights under Article 1, Section 11 of the Indiana Constitution.


                                     III. Advisement of Miranda Rights

[25]   In addition, Jordan interjects a Fifth Amendment claim concerning the

       statements he made to the officers at the scene. Jordan maintains that the

       statements were offered after he was placed in handcuffs and prior to the

       administration of Miranda warnings. Miranda prohibits the introduction at trial

       of any statement “whether exculpatory or inculpatory, stemming from custodial

       interrogation of the defendant unless it demonstrates the use of procedural

       safeguards effective to secure the privilege against self-incrimination.” Miranda

       v. Arizona, 384 U.S. 436, 444 (1966). These protections are applicable only if

       the defendant has been subjected to custodial interrogation, which is

       “questioning initiated by law enforcement officers after a person has been taken

       into custody or otherwise deprived of his freedom of action in any significant

       way.” Id.


[26]   In the present case, when the officers arrived at Jordan’s property and informed

       Jordan that they were there to assist the probation officers with the routine

       Court of Appeals of Indiana | Memorandum Opinion 44A03-1603-CR-503 | February 14, 2017   Page 17 of 30
       search, Jordan became excited and was “moving around.” (Tr. p. 65). Based

       on Jordan’s movements, the officers temporarily restrained Jordan for their

       own safety. While handcuffed, Jordan volunteered information indicating the

       presence of a methamphetamine lab in his garage. At trial, Jordan argued that

       he should have been advised of his Miranda rights since he was in custody at the

       time he offered the statements. In allowing Jordan’s statements into evidence,

       the trial court ruled that “there was no interrogation which enveloped the

       necessity to provide [Jordan] with his Miranda [r]ights.” (Tr. p. 65). The trial

       court further added that although Jordan was restrained at the time, the

       confinement was done for the officers’ safety.


[27]   We note that the police have the legal right to take reasonable steps to stabilize

       a situation such as this during the course of their investigation. Williams v.

       State, 959 N.E.2d 357, 359 (Ind. Ct. App. 2011), trans. denied. This includes

       placing an individual in handcuffs to enable the officers to conduct their

       investigation and ensure their own safety or the safety of others. Safety

       concerns of a police officer are a legitimate and weighty justification for such an

       intrusion. Delatorre v. State, 903 N.E.2d 506, 508 (Ind. Ct. App. 2009). Here,

       based on Jordan’s conduct of moving around, the officers temporarily

       handcuffed Jordan for the purpose of protecting themselves.


[28]   Notwithstanding the officers’ concern for safety, its arguable that under the

       circumstances, Jordan’s freedom was restrained such that Miranda warnings

       were required. When determining whether a person was in custody or deprived

       of his freedom, “the ultimate inquiry is simply whether there is a ‘formal arrest

       Court of Appeals of Indiana | Memorandum Opinion 44A03-1603-CR-503 | February 14, 2017   Page 18 of 30
       or restraint on freedom of movement’ of the degree associated with a formal

       arrest.” Luna v. State, 788 N.E.2d 832, 833 (Ind. 2003) (quoting California v.

       Beheler, 463 U.S. 1121, 1125 (1983)). This is determined by examining whether

       a reasonable person in similar circumstances would believe he is not free to

       leave. Id. (citing Cliver v. State, 666 N.E.2d 59, 66 (Ind. 1996), reh’g denied).

       “Only when the officer, by means of physical force or show of authority, has in

       some way restrained the liberty of a citizen may we conclude that a ‘seizure’

       has occurred.” Id. (citing Florida v. Bostick, 501 U.S. 429, 433-434 (1991)). That

       said, we have held that an officer’s knowledge and beliefs are only relevant to

       the question of custody if conveyed—through either words or actions—to the

       individual being questioned. King v. State, 844 N.E.2d 92, 97 (Ind. Ct. App.

       2005). A police officer’s “unarticulated plan has no bearing on the question” of

       custody. Loving v. State, 647 N.E.2d 1123, 1125 (Ind. 1995) (quoting Berkemer v.

       McCarty, 468 U.S. 420, 442 (1984)).


[29]   In this case, despite the officers’ testimony that Jordan was not in formal

       custody at the time he made the voluntary statements about the existence of a

       meth lab in the garage, their testimony had no bearing on how Jordan perceived

       their actions. The safety concerns issues were not articulated to Jordan, nor was

       Jordan informed that he was free to leave at any point in time. Applying the

       objective test to the facts of the case, a reasonable person would believe to be

       restrained in a manner similar to a formal arrest and that Miranda warnings

       were therefore required. When Jordan made the statements, there is no doubt




       Court of Appeals of Indiana | Memorandum Opinion 44A03-1603-CR-503 | February 14, 2017   Page 19 of 30
       that he was in custody; he had been handcuffed and Miranda warnings were

       therefore necessary.


[30]   However, we find that Jordan’s statements were not subject to an interrogation.

       The term interrogation has been defined as ‘“express questioning and words or

       actions on the part of the police that the police know are reasonably likely to

       elicit an incriminating response from the suspect.”’ White v. State, 772 N.E.2d

       408, 412 (Ind. 2002). Notably, the concept of custodial interrogation does not

       operate to extend the Miranda safeguards to spontaneous voluntary statements

       made in the presence of police officers which are not in response to questions

       posed by law enforcement officers. Gregory v. State, 540 N.E.2d 585 (Ind. 1989).

       This is true even though a defendant is in custody of law enforcement officers at

       the time. Id. Turning to the facts of the case, when the officers explained to

       Jordan their reason for visiting, Jordan became excited and began moving

       around. The officers temporarily restrained Jordan and what followed was

       Jordan’s impulsive statement indicating the presence of a meth lab in the

       garage. Because the record is absent of any evidence of the officers probing

       Jordan, it supports the notion that Jordan was under no compulsion to speak

       and therefore his statements were not made in violation of his Miranda

       warnings. Accordingly, we find no error here.


                                         V. Sufficiency of the Evidence

[31]   Next, Jordan contests that the trial court’s findings of fact and conclusions of

       law finding him guilty of the charged offenses as being unsupported by the

       evidence. We observe that “in a criminal case the trial court is not required to

       Court of Appeals of Indiana | Memorandum Opinion 44A03-1603-CR-503 | February 14, 2017   Page 20 of 30
       make either findings of fact or conclusions of law.” Dozier v. State, 709 N.E.2d

       27, 30 (Ind. Ct. App. 1999) (citing Nation v. State, 445 N.E.2d 565, 570 (Ind.

       1983)). Thus, the focus of our inquiry is not upon the remarks the trial court

       makes in a bench trial after having reached the conclusion that a defendant is

       guilty. Id. Rather, the question is whether the evidence presented to the trial

       court as fact-finder was sufficient to sustain the conviction. Id. We neither

       reweigh the evidence nor judge the credibility of witnesses. Id. (citing Johnson v.

       State, 671 N.E.2d 1203, 1209 (Ind. Ct. App. 1996), trans. denied). Instead, we

       examine only the evidence most favorable to the State along with all reasonable

       inferences to be drawn therefrom. Id. If there is substantial evidence of

       probative value to sustain the conviction, then it will not be set aside. Id.


[32]   Jordan was convicted of a Level 4 felony, dealing in methamphetamine; a Level

       5 felony, possession of methamphetamine; a Level 6 felony, possession of

       precursors; a Level 6 felony, maintaining a common nuisance; and a Class A

       misdemeanor, possession of paraphernalia. We will address each offense in

       turn.


                                         A. Dealing in Methamphetamine

[33]   Indiana Code section 35-48-4-1.1, provides, in part, that a person who:

               (1) knowingly or intentionally:


                (A) manufactures;
                (B) finances the manufacture of;
                (C) delivers; or
                (D) finances the delivery of;
                methamphetamine, pure or adulterated; or

       Court of Appeals of Indiana | Memorandum Opinion 44A03-1603-CR-503 | February 14, 2017   Page 21 of 30
      (2) possesses, with intent to:


       (A) manufacture;
       (B) finance the manufacture of;
       (C) deliver; or
       (D) finance the delivery of;
       methamphetamine, pure or adulterated;


       commits dealing in methamphetamine, a Level 5 felony, except as
       provided in subsections (b) through (e).


        (b) A person may be convicted of an offense under subsection (a)(2)
        only if:


        (1) there is evidence in addition to the weight of the drug that the
        person intended to manufacture, finance the manufacture of, deliver,
        or finance the delivery of the drug; or
        (2) the amount of the drug involved is at least twenty-eight (28) grams.


        (c) The offense is a Level 4 felony if:


        (1) the amount of the drug involved is at least one (1) gram but less
        than five (5) grams; or
        (2) the amount of the drug involved is less than one (1) gram and an
        enhancing circumstance applies.


With respect to Jordan’s Level 4 dealing in methamphetamine offense, the

record shows that when the officers arrived at 8375 East 800 South in

LaGrange County, Indiana, they encountered Messer in the driveway who

stated that she was there to get a bag of clothes from Jordan’s house. Messer

relayed to the officers that she had observed Jordan shaking a pop bottle near

the garage area earlier that day. The probationary search of Jordan’s home

yielded items associated with the manufacture of methamphetamine—a

Court of Appeals of Indiana | Memorandum Opinion 44A03-1603-CR-503 | February 14, 2017   Page 22 of 30
       smoking device containing a white powdery substance, foil with burnt residue,

       small plastic baggies, and a salt grinder. Prior to the arrival of the probation

       officers, Jordan advised the officers that there was a meth lab on the property

       and he directed them to its location. In the garage, the officers located a clear

       plastic bottle with a bubbling substance situated in an old radio box. Trooper

       Smith testified that the plastic bottle recovered in the garage served as the vessel

       for an active one-pot methamphetamine lab. The State also introduced

       evidence of all the precursors and items necessary in manufacturing

       methamphetamine located throughout Jordan’s garage and house. Mindful of

       the testimony and evidence presented at trial, we conclude that the State proved

       beyond reasonable doubt that Jordan was dealing in methamphetamine.


                                                B. Possession Counts

[34]   With regards to Jordan’s Level 5 felony, possession of methamphetamine,

       Indiana Code section 35-48-4-6.1 provides, in part:

               (a) A person who, without a valid prescription or order of a
               practitioner acting in the course of the practitioner’s professional
               practice, knowingly or intentionally possesses methamphetamine (pure
               or adulterated) commits possession of methamphetamine, a Level 6
               felony, except as provided in subsections (b) through (d).


               (b) The offense is a Level 5 felony if:


               (1) the amount of the drug involved is at least five (5) grams but less
               than ten (10) grams; or
               (2) the amount of the drug involved is less than five (5) grams and an
               enhancing circumstance applies.



       Court of Appeals of Indiana | Memorandum Opinion 44A03-1603-CR-503 | February 14, 2017   Page 23 of 30
       The certificate of lab analysis from the Indiana State Police Laboratory

       established that a plastic bag containing a white substance recovered from

       Jordan’s home was methamphetamine, weighing 0.54 grams. In addition, an

       enhancing circumstance existed pursuant to Indiana Code section 35-48-1-16.5

       (5) the existence of a one-pot ammonia reaction meth lab and items associated

       in the manufacturing of methamphetamine. Here, we conclude that there was

       sufficient evidence to find that Jordan possessed the methamphetamine.


[35]   Turning to Jordan’s Level 6 felony, possession of precursors, the State was

       required to prove that Jordan knowingly or intentionally possessed two or more

       chemical reagents or precursors with the intent to manufacture a controlled

       substance. I.C. § 35-48-4-14.5(e). During the search, Trooper Smith seized

       several ingredients necessary for manufacturing methamphetamine, including

       Coleman fuel, sulfuric acid drain cleaner, ammonia sulfate, sodium hydroxide,

       lithium metal, and hydrogen peroxide. Therefore, we conclude that sufficient

       evidence existed to support Jordan’s conviction for possessing precursors.


[36]   Lastly, to prove that Jordan committed Class A misdemeanor, possession of

       paraphernalia, the State was required to prove that he knowingly or

       intentionally possessed an instrument he intended to use to introduce a

       controlled substance into his body. I.C. § 35-48-4-8.3(a). The State presented

       evidence of a pink straw covered in residue and several hypodermic needles that

       were found in Jordan’s house. Trooper Smith testified that the straw and

       needles could be used to introduce methamphetamine into a person’s body.



       Court of Appeals of Indiana | Memorandum Opinion 44A03-1603-CR-503 | February 14, 2017   Page 24 of 30
       Here, we conclude that was sufficient evidence that Jordan possessed

       paraphernalia.


                                    C. Maintaining a Common Nuisance


[37]   As for Jordan’s Level 6 felony, maintaining a common nuisance, the State was

       required to prove beyond a reasonable doubt that Jordan knowingly or

       intentionally maintained a building, structure, vehicle or other place that was

       used by Jordan for unlawfully manufacturing, keeping, offering for sale, selling,

       delivering, or financing the delivery of a controlled substance. I.C. § 35-48-4-

       13(b)(1) (2014). Much of Jordan’s arguments are concentrated on his mistaken

       belief that the State failed to prove that he resided at the 8375 East 800 South

       property. As discussed above, the State provided ample evidence to

       demonstrate that Jordan lived at the 8375 East 800 South property. Moreover,

       we note that a person in control of a residence “may be found in control of any

       drugs” or other contraband “discovered therein.” Allen v. State, 798 N.E.2d

       490, 501 (Ind. Ct. App. 2003). At Jordan’s bench trial, Officer Randol testified

       that when he arrived at the 800 South property, he encountered Messer

       standing in the driveway, and Messer stated that she “was there to get a bag of

       clothes that were at [Jordan’s].” (Tr. p. 87). In addition, Jordan was inside the

       house when the officers arrived and Messer requested Jordan to exit the house.

       The search that was conducted at Jordan’s premises yielded several precursors

       used to manufacture methamphetamine. From this, the trial court could have

       reasonably concluded that Jordan actually possessed the precursors and was

       using his residence to manufacture methamphetamine.

       Court of Appeals of Indiana | Memorandum Opinion 44A03-1603-CR-503 | February 14, 2017   Page 25 of 30
                                              VI. Double Jeopardy

[38]   Last but not least, Jordan claims that his convictions for dealing in

       methamphetamine, possession of methamphetamine, and possession of

       precursors violate Indiana’s prohibition against double jeopardy. The Indiana

       Constitution provides that “[n]o person shall be put in jeopardy twice for the

       same offense.” IND. CONST. art. 1, § 14. “Indiana’s Double Jeopardy Clause . .

       . prevent[s] the State from being able to proceed against a person twice for the

       same criminal transgression.” Hopkins v. State, 759 N.E.2d 633, 639 (Ind. 2001)

       (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)). The Indiana

       Supreme Court has held that “two or more offenses are the ‘same offense’ in

       violation of Article I, Section 14 of the Indiana Constitution, if, with respect to

       either the statutory elements of the challenged crimes or the actual evidence

       used to convict, the essential elements of one challenged offense also establish

       the essential elements of another challenged offense.” Richardson, 717 N.E.2d

       at 49.


[39]   “An offense is the same as another under the actual evidence test when there is

       a reasonable possibility that the evidence used by the fact-finder to establish the

       essential elements of one offense may have been used to establish the essential

       elements of a second challenged offense.” Id. The Indiana Supreme Court

       clarified this test in Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002), where the

       court held that the test is not whether the evidentiary facts used to establish one

       of the essential elements of one offense may also have been used to establish

       one of the essential elements of a second challenged offense; rather, the test is


       Court of Appeals of Indiana | Memorandum Opinion 44A03-1603-CR-503 | February 14, 2017   Page 26 of 30
       whether the evidentiary facts establishing the essential elements of one offense

       also establish all of the elements of a second offense. If the evidentiary facts

       establishing one offense establish only one or several, but not all, of the essential

       elements of the second offense, there is no double jeopardy violation. Id.


[40]   The charging Information for dealing in methamphetamine alleged, in pertinent

       part, that on or about August 7, 2014, Jordan “did knowingly or intentionally

       manufacture, deal, sell, give, barter or trade METHAMPHETAMINE at the

       location of: 8375 E 800 S, County of LaGrange, State of Indiana . . . . Further,

       the aggregate weight of said METHAMPHETAMINE was LESS than three (3)

       grams.” (Appellant’s App. Vol II, p. 42).


[41]   With regards to Jordan’s possession of methamphetamine offense, the State

       averred that on or about August 7, 2014, Jordan “did knowingly or

       intentionally possess METHAMPHETAMINE at the location of: 8375 E 800

       S, County of LaGrange, State of Indiana, and [Jordan] did not have a valid

       prescription of the said substance. Further, the aggregate weight of said

       METHAMPHETAMINE was OVER 5 grams and less than 10 grams.”

       (Appellant’s App. Vol II, p. 44).


[42]   Lastly, the charging information relating to Jordan’s offense of possessing

       precursors stated, in part, that on or about August 7, 2014, “at 8375 E 800 S”

       Jordan “did possess two (2) or more chemical reagents or precursors with intent

       to manufacture a controlled substance.” (Appellant’s App. Vol II, p. 46).




       Court of Appeals of Indiana | Memorandum Opinion 44A03-1603-CR-503 | February 14, 2017   Page 27 of 30
[43]   Jordan first claims that the half gram of methamphetamine was used to convict

       him for dealing and possessing the methamphetamine. A person who ...

       knowingly or intentionally . . . manufactures . . . methamphetamine, pure or

       adulterated ... commits dealing in methamphetamine. I.C. § 35-48-4-

       1.1(a)(1)(A). Indiana Code section 35-48-1-18 defines manufacture as

               the production, preparation, propagation, compounding, conversion,
               or processing of a controlled substance, either directly or indirectly by
               extraction from substances of natural origin, independently by means
               of chemical synthesis, or by a combination of extraction and chemical
               synthesis, and includes any packaging or repackaging of the substance
               or labeling or relabeling of its container.


[44]   Jordan was also charged and convicted of possession of chemical reagents or

       precursors. In addition to proving that Jordan “possess[ed] two or more

       chemical reagents or precursors”, the State was required to prove, as with the

       dealing charge, that he did so “with the intent to manufacture a controlled

       substance.” See I.C. § 35-48-4-14.5.


[45]   Aside from the element of the intent to manufacture methamphetamine,

       separate and distinct facts were required and relied upon by the State to prove

       the two offenses. Here, we find that the State’s evidence that the clear plastic

       bottle which Trooper Smith identified as a one-pot vessel for an active

       methamphetamine lab, established the dealing charge. Jordan’s actual

       possession of one or more chemical reagents or precursors, including Coleman

       fuel, sulfuric acid drain cleaner, ammonia sulfate, sodium hydroxide, lithium

       metal, and hydrogen peroxide, established the possession of precursors charge.


       Court of Appeals of Indiana | Memorandum Opinion 44A03-1603-CR-503 | February 14, 2017   Page 28 of 30
       As such, we conclude that there was no reasonable possibility that the trial

       court considered the same evidence to establish all of the elements of both

       offenses. There is no double jeopardy violation.


[46]   Lastly, Jordan argues that his convictions for dealing in methamphetamine and

       possession of methamphetamine subjected him to double jeopardy. As noted,

       for the dealing charge, the charging information alleged that Jordan did

       knowingly or intentionally manufacture methamphetamine. Manufacturing

       includes the “production, preparation . . . or processing of a controlled

       substance. . .” I.C. § 35-48-1-18. We have held that convictions for

       manufacturing methamphetamine and possession of methamphetamine may be

       sustained, specifically with the finished product supporting the possession

       conviction and the unfinished product supporting the manufacturing

       conviction. Storey v. State, 875 N.E.2d 243, 248-50 (Ind. Ct. App. 2007). It has

       also been established that the evidence need only show that the manufacturing

       process has begun to sustain a conviction for manufacturing methamphetamine.

       Dawson v. State, 786 N.E.2d 742, 747-48 (Ind. Ct. App. 2003). In this case

       Jordan was found in possession of 0.54 grams of methamphetamine. The

       officers also found numerous accoutrements in the residence that were used to

       manufacture additional methamphetamine. As such, the trial court could have

       reasonably concluded that Jordan was in possession of methamphetamine and

       was in the process of manufacturing an additional amount of the drug. As a

       result, we reject Jordan’s argument that convicting him of both dealing in




       Court of Appeals of Indiana | Memorandum Opinion 44A03-1603-CR-503 | February 14, 2017   Page 29 of 30
       methamphetamine and possession of methamphetamine violated the

       prohibition against double jeopardy.


                                           CONCLUSION
[47]   Based on the foregoing, we conclude that (1) the trial court did not abuse its

       discretion in admitting some of the State’s Exhibits; (2) pursuant to his

       probation order, Jordan consented to the search and therefore his rights under

       Article 1, Section 11 of the Indiana Constitution were not violated; (3) Miranda

       warnings prior to Jordan’s voluntary statements to the officers were not

       required; (4) there was sufficient evidence to convict Jordan of his charged

       offenses; and (5) Jordan’s conviction for dealing in methamphetamine,

       possession of methamphetamine, and possession of precursors did not violate

       double jeopardy principles under the actual evidence test.


[48]   Affirmed.


[49]   Crone, J. and Altice, J. concur




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