MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Sep 22 2016, 5:49 am
regarded as precedent or cited before any                                 CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         Court of Appeals
the defense of res judicata, collateral                                    and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Adam C. Squiller                                         Gregory F. Zoeller
Auburn, Indiana                                          Attorney General of Indiana

                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brian W. Ellis,                                          September 22, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         17A05-1512-CR-2179
        v.                                               Appeal from the DeKalb Superior
                                                         Court
State of Indiana,                                        The Honorable Kevin P. Wallace,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         17D01-1405-FA-11



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 17A05-1512-CR-2179 | September 22, 2016     Page 1 of 8
                                             Case Summary
[1]   Brian Ellis challenges his conviction for Class A felony dealing in

      methamphetamine. We affirm.


                                                     Issue
[2]   Ellis presents one issue for our review, which we restate as whether the

      evidence is sufficient to support his conviction for Class A felony dealing in

      methamphetamine.


                                                     Facts
[3]   On May 25, 2014, Mary Thacker and Mike Avery were working in their

      backyard in DeKalb County when they heard a loud noise similar to an

      explosion and saw smoke coming from their neighbor’s shed. Thacker saw

      Ellis and another person near the shed. Thacker and Avery smelled an odor

      like ammonia, and they alerted the police.


[4]   DeKalb County Sheriff’s Department Deputies Larry Kees, Jarrid Treesh, and

      Courtney Fuller responded to Thacker and Avery’s report. When they arrived,

      they spoke with Mable Ellis (“Mable”), Ellis’s eighty-two-year-old mother and

      the property owner, who gave her consent to search. The officers saw a light on

      inside the shed in the backyard, heard voices, and smelled a chemical odor

      similar to ammonia. Deputy Treesh knocked on the door to the shed and

      opened the door. He saw two men seated in chairs, open beer bottles, and a

      reaction vessel—a plastic bottle containing a white granular substance, black

      flakes, and a bluish liquid, which the officers recognized as an active meth lab—
      Court of Appeals of Indiana | Memorandum Decision 17A05-1512-CR-2179 | September 22, 2016   Page 2 of 8
      between the two chairs. The men were later identified as Ellis and Tyler Cole.

      Cole told the deputies he was “just there to clean out a garage,” and was

      released. Tr. p. 190. He was later charged with and convicted of possessing

      methamphetamine. Ellis told Deputy Treesh that Cole was showing him how

      to manufacture methamphetamine.


[5]   From the shed and a garbage can outside the shed, law enforcement officers

      collected cold packs, Zippo lighter fluid, Coleman camp fuel, Liquid

      Lightening, coffee filters, battery casings, Kleen Out, blister packs of

      pseudoephedrine, and a “spent one-pot.” Tr. p. 278. They also searched the

      bedroom in which Ellis and his wife were staying and found drug

      paraphernalia, including a pipe, a measuring device, and needle nose pliers. On

      a dresser in the bedroom, officers discovered a credit card bearing Ellis’s name

      amid several “tin foilies,” which “are used a lot of times in the smoking of

      methamphetamine . . . .” Id. In the sleeping compartment of Ellis’s semi,

      which was parked at Mable’s house, officers found a bag of methamphetamine

      between the wall of the cab and the mattress.


[6]   The State charged Ellis with 1) Class A felony dealing in methamphetamine; 2)

      Class B felony possession of methamphetamine; 3) Class C felony possession of

      precursors; and 4) Class D felony possession of paraphernalia. A jury found

      Ellis guilty of dealing in methamphetamine and possession of




      Court of Appeals of Indiana | Memorandum Decision 17A05-1512-CR-2179 | September 22, 2016   Page 3 of 8
      methamphetamine1 and found him not guilty of possession of paraphernalia.

      The jury was unable to reach a verdict on the possession of precursors charge.

      The trial court sentenced Ellis to twenty years for dealing in methamphetamine

      concurrent with six years for possessing methamphetamine for an aggregate

      sentence of twenty years in the Department of Correction.


                                                      Analysis
[7]   Ellis contends the evidence is not sufficient to support his conviction for dealing

      in methamphetamine because there is no direct evidence he was involved in

      manufacturing the drug.2


                 When reviewing a claim of insufficient evidence, an appellate
                 court considers only the evidence most favorable to the verdict
                 and any reasonable inferences that may be drawn from that
                 evidence. If a reasonable finder of fact could determine from the
                 evidence that the defendant was guilty beyond a reasonable
                 doubt, then we will uphold the verdict. We do not reweigh the
                 evidence or judge the credibility of witnesses. These evaluations
                 are for the trier of fact, not appellate courts. In essence, we assess
                 only whether the verdict could be reached based on reasonable
                 inferences that may be drawn from the evidence presented.




      1
          Ellis does not challenge his conviction for possession of methamphetamine.
      2
        Ellis also contends his argument regarding the sufficiency of the evidence is “supported by the fact that the
      jury was unable to conclude that the State proved its case against Ellis for Possession of Precursors With the
      Intent to Manufacture Methamphetamine beyond a reasonable doubt.” Appellant’s Br. p. 11. Ellis candidly
      concedes, however, that “logically inconsistent verdicts are not a basis in Indiana for vacating a conviction.”
      Id.; See Beattie v. State, 924 N.E.2d 643, 644 (Ind. 2010) (holding “inconsistent verdicts are permissible and
      not subject to appellate review . . . .”).

      Court of Appeals of Indiana | Memorandum Decision 17A05-1512-CR-2179 | September 22, 2016           Page 4 of 8
      Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (quotations omitted) (citations

      omitted).


[8]   The statute in effect at the time Ellis committed these crimes defined dealing in

      methamphetamine as knowingly or intentionally manufacturing

      methamphetamine, pure or adulterated. Ind. Code § 35-48-4-1.1. The offense

      is a Class A felony if, as here, it is committed in, on, or within 1000 feet of a

      public park or a family housing complex.3 Id.; App. p. 14. 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 syntheses, 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.


[9]   Constructive possession of items used to manufacture methamphetamine is

      sufficient to prove an appellant knowingly or intentionally manufactured the

      drug. See Floyd v. State, 791 N.E.2d 206 (Ind. Ct. App. 2003), trans. denied

      (citing Bush v. State, 772 N.E.2d 1020, 1022-23 (Ind. Ct. App. 2002)), trans.

      denied). “A person constructively possesses an item when the person has (1) the

      capability to maintain dominion and control over the item; and (2) the intent to




      3
          Ellis does not challenge the enhancement to a Class A felony.


      Court of Appeals of Indiana | Memorandum Decision 17A05-1512-CR-2179 | September 22, 2016   Page 5 of 8
       maintain dominion and control over it.” Sargent v. State, 27 N.E.3d 729, 733

       (Ind. 2015) (citation omitted).

               Where a person’s control over the premises where contraband is
               found is non-exclusive, intent to maintain dominion and control
               may be inferred from additional circumstances that indicate that
               the person knew of the presence of the contraband. Additional
               circumstances may include: (1) incriminating statements by the
               defendant; (2) attempted flight or furtive gestures; (3) a drug
               manufacturing setting; (4) proximity of the defendant to the
               drugs or weapons; (5) drugs or weapons in plain view; and (6)
               location of the drugs or weapons in close proximity to items
               owned by the defendant.


       Hardister v. State, 849 N.E.2d 563, 574 (Ind. 2006) (citations omitted).


[10]   Ellis did not have exclusive control over the areas of Mable’s house in which

       police found the reaction vessel and items commonly used to manufacture

       methamphetamine. However, Ellis told Officer Treesh he “believed” the bottle

       was a methamphetamine lab and that Cole was showing him how to

       manufacture methamphetamine. Tr. pp. 237, 238. Police discovered Ellis

       sitting with Cole and drinking a beer near the reaction vessel, which was in

       plain view. Also in plain view in the shed were a number of items commonly

       used to manufacture methamphetamine—a grinder coated with white residue,

       Colman camping fuel, Liquid Fire, salt, tape, and tubes, blister packs of

       pseudoephedrine, and battery casings. Police also discovered a bag of

       methamphetamine in the sleeping area of semi in which Ellis essentially lives

       for sometimes weeks at a time.


       Court of Appeals of Indiana | Memorandum Decision 17A05-1512-CR-2179 | September 22, 2016   Page 6 of 8
[11]   It is clear that Ellis knew of the presence of the reaction vessel; he told police he

       believed it was methamphetamine. The jury could reasonably infer Ellis was

       capable of maintaining dominion and control over the reaction vessel and items

       used to manufacture methamphetamine based on his proximity to them.

       Likewise, the jury could reasonably infer from Ellis’s statement that Cole was

       showing him how to manufacture methamphetamine and his proximity to both

       the reaction vessel and the items used to manufacture methamphetamine that

       he had the intent to maintain dominion and control over those items. This

       evidence was sufficient to prove Ellis had constructive possession of the

       reaction vessel and the items frequently used to manufacture methamphetamine

       and, therefore, is sufficient to support his conviction.


[12]   Ellis argues that both he and Cole testified Ellis was not involved in

       manufacturing methamphetamine and directs us to his own self-serving

       testimony that Cole, not Ellis was responsible for the contraband. “The jurors

       are the triers of fact, and in performing this function, they may attach whatever

       weight and credibility to the evidence as they believe is warranted.” Parks v.

       State, 734 N.E.2d 694, 700 (Ind. Ct. App. 2000), trans. denied. We may not

       reweigh the evidence. Baker, 968 N.E.2d at 229.


                                                 Conclusion
[13]   The evidence is sufficient to support Ellis’s conviction for Class A felony

       dealing in methamphetamine. We affirm.


[14]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 17A05-1512-CR-2179 | September 22, 2016   Page 7 of 8
Riley, J., and Bailey, J., concur.




Court of Appeals of Indiana | Memorandum Decision 17A05-1512-CR-2179 | September 22, 2016   Page 8 of 8
