Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

BRENT WESTERFELD                                   GREGORY F. ZOELLER
Indianapolis, Indiana                              Attorney General of Indiana

                                                   AARON J. SPOLARICH
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana

                                                                                 Mar 12 2013, 9:12 am

                               IN THE
                     COURT OF APPEALS OF INDIANA

KENNETH D. HELTON,                                 )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )      No. 47A01-1205-CR-200
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE LAWRENCE CIRCUIT COURT
                          The Honorable Andrea K. McCord, Judge
                              Cause No. 47C01-1003-FB-305


                                         March 12, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                               STATEMENT OF THE CASE

          Kenneth Helton (“Helton”) appeals his convictions for Class B felony dealing in

methamphetamine,1 Class D felony possession of marijuana,2 and Class D felony

maintaining a common nuisance.3          Helton also asserts that the trial court erred in

sentencing him separately for being an habitual substance offender.4

          We affirm and remand.

                                           ISSUES

          1. Whether sufficient evidence supports Helton’s convictions.

          2. Whether Helton’s sentence as an habitual substance offender is erroneous.

                                           FACTS

          On March 24, 2010, officers with the Bedford Drug Task Force (“BDTF”)

conducted a controlled purchase of methamphetamine at 1511 Third Street in Bedford,

Indiana. Officers sent a confidential informant into the house with $60.00 of marked

“buy” money. The confidential informant returned to the officers with a substance that

field-tested positive for methamphetamine. BDTF officers used the controlled buy to

obtain a search warrant for the house and garage, and they served the search warrant later

the same evening.




1
    Ind. Code § 35-48-4-1.1.
2
    I.C. § 35-48-4-11.
3
    I.C. § 35-48-4-13.
4
    I.C. § 35-50-2-10.
                                              2
       After making entry, Officer Joseph DeWees (“Officer DeWees”) encountered

Helton in a bedroom sitting on a bed. Officer DeWees saw Helton reaching underneath

the bed and ordered him several times to raise his hands. Helton eventually complied,

and other officers secured the rest of the house. Officers found Helton’s son, Brian

Helton, and nephew, Dusty Phgley, in the living room. Helton’s wife, Starr Helton, was

found in the area of the kitchen hiding underneath a clothes basket. Once in handcuffs,

Helton told officers he had methamphetamine in his pocket.                  There was no

methamphetamine, but officers found $68, of which $40 were marked bills provided to

the confidential informant for the controlled purchase performed earlier.

       On the bed where Helton was sitting, officers found six empty packs of Sudafed

banded to a package of lithium ion batteries, scissors, cigarette rolling papers, and cut

corners from plastic sandwich bags (“baggies”).       Also in the bedroom were plastic

bottles, ammonia, plastic tubing, and wet coffee filters. The plastic bottles and two

baggies contained a white residue that field-tested positive for methamphetamine. The

wet coffee filters also field-tested positive for methamphetamine; its presence was later

confirmed through laboratory testing. A large plastic bag containing approximately one

hundred forty-three (143) grams of suspected marijuana was found in a dresser next to

the bed. Finally, a can of “Liquid Fire,” which contains sulfuric acid, was found in the

garage.

       After being advised of his Miranda rights, Helton confessed to making and selling

methamphetamine. He also told the officers that his son, wife, and nephew had nothing

to do with the drugs in the house.

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       On March 26, 2010, the State charged Helton with dealing in methamphetamine, a

Class B felony. Helton was also charged with possession of marijuana, illegal possession

of anhydrous ammonia or ammonia solution, and maintaining a common nuisance, all as

Class D felonies. The State also alleged that Helton was an habitual substance offender.

A jury trial was held on December 13, 2011. Helton was convicted of dealing in

methamphetamine, possession of marijuana, and maintaining a common nuisance.

Helton admitted to being an habitual substance offender.

       On April 4, 2012, the trial court sentenced Helton to fifteen (15) years for dealing

in methamphetamine, three (3) years for possession of marijuana and three (3) years for

maintaining a common nuisance.         These convictions were ordered to be served

concurrently. The court then imposed a separate consecutive eight (8) year sentence for

being an habitual substance offender.      All time was ordered to be served in the

Department of Correction.



                                       DECISION

1. Sufficiency of the Evidence

       Helton argues the evidence is insufficient to sustain his convictions.      “When

reviewing a claim of insufficient evidence, we consider only evidence that supports the

verdict, and draw all reasonable inferences therefrom.” Bush v. State, 772 N.E.2d 1020,

1022 (Ind. Ct. App. 2002), trans. denied. “We neither reweigh the evidence nor judge

the credibility of witnesses.” Id. “We uphold a conviction if there is substantial evidence

of probative value from which a jury could have found the defendant guilty beyond a

                                            4
reasonable doubt.”     Id.   “Circumstantial evidence alone is sufficient to sustain a

conviction.” Id. We will address Helton’s convictions separately.

       a. Dealing in Methamphetamine

       A person commits Class B felony dealing in methamphetamine if he knowingly or

intentionally manufactures, finances the manufacture of, delivers, or finances the delivery

of methamphetamine, pure or adulterated, or possesses methamphetamine with the intent

to do the same. I.C. § 35-48-4-1.1. A person engages in conduct “knowingly” if, when

he engages in the conduct, he is aware of a high probability that he is doing so. I.C. § 35-

41-2-2(b). Indiana Code § 35-48-1-18(1) 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.

       In this case, Helton asserts there is no evidence from which the inference may be

drawn that he manufactured methamphetamine. We disagree. The police seized the

following items commonly associated with manufacturing methamphetamine: empty

Sudafed packets; lithium batteries; plastic bottles; ammonia; a container of “Liquid Fire,”

which contains sulfuric acid; plastic tubing; a digital scale; plastic baggies with torn

corners; and wet coffee filters. The wet coffee filters, plastic bottles, and two baggies

tested positive for methamphetamine. Moreover, the State’s expert testified that the

saturation of the filters indicated recent processing of methamphetamine. When police

entered the home, Helton was found in the bedroom containing most of these items.


                                             5
Finally, Helton gave a lengthy confession taking responsibility for everything found in

the house. This evidence is sufficient for the jury to infer that Helton manufactured

methamphetamine.     See Bush, 772 N.E.2d at 1023.       Helton attempts to rebut this

evidence on appeal by maintaining the house belonged to his son and that Helton lied to

the police. Helton essentially asks that we reweigh the evidence, which we will not do.

Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005).

      b. Maintaining a Common Nuisance

      Helton next claims that the evidence was insufficient to find him guilty of

maintaining a common nuisance. Helton does not dispute that the house where he was

found was used to keep methamphetamine. Instead, Helton argues that the State failed to

prove beyond a reasonable doubt that he “maintained” the house containing the drugs and

other contraband.

      In order for the State to convict Helton of maintaining a common nuisance, they

had to show that he knowingly or intentionally maintained a building or structure, that

was used one (1) or more times to unlawfully keep methamphetamine. I.C. § 35-48-4-13.

      We have previously stated that proof establishing whether a person “maintains” a

building or structure for the purposes of maintaining a common nuisance is similar to

proving constructive possession. Jones v. State, 807 N.E.2d 58, 67 (Ind. Ct. App. 2004),

trans. denied. “A person constructively possesses contraband when the person has (1)

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

maintain dominion and control over it.” Gary v State, 957 N.E.2d 171, 174 (Ind. 2011).

Accordingly, to prove Helton maintained control over the house on 1511 Third Street, the

                                           6
State had to show he had the intent and capability to do so. The State is not required to

prove Helton owned the house. See Jones, 807 N.E.2d at 66. “The defendant must exert

control over the premises.” Id. at 67.

         Helton was found in the bedroom with methamphetamine and the items for its

manufacture.     Helton requested that one of the officers call his landlord using his

cellphone. Helton complained that the temporary cuffs placed on his wrist were tight and

told officers where they could find wire cutters to free him. Helton even goes as far as to

claim the dog outside of the house as his own, yet argues on appeal that his presence was

simply happenstance. Again, we find that there was sufficient evidence from which the

jury could infer that Helton had the intent and capability to maintain control over the

house.

         c. Possession of Marijuana

         Finally, Helton argues that the State failed to prove he possessed the marijuana. A

person commits Class D felony possession of marijuana if he knowingly possesses (pure

or adulterated) marijuana in an amount greater than thirty (30) grams. I.C. § 35-48-4-11.

“In the absence of actual possession of drugs, our [Supreme Court] has consistently held

that ‘constructive’ possession may support a conviction for a drug offense.” Lampkins v.

State, 685 N.E.2d 698, 699 (Ind. 1997).           Again, “a person constructively possesses

contraband when the person has (1) the capability to maintain dominion and control over

the item; and (2) the intent to maintain dominion and control over” the contraband. Gary,

957 N.E.2d at 174. The defendant must be aware of the contraband’s presence for the

intent element to be satisfied. Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999). Where

                                              7
control of the premises is non-exclusive, there must be evidence of additional

circumstances indicating the defendant’s knowledge of the contraband. Id. Examples of

recognized “additional circumstances” 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 contraband; (5) contraband is in plain view; and (6)

location of the contraband is in close proximity to items owned by the defendant. Person

v. State, 661 N.E.2d 587, 590 (Ind. Ct. App. 1996), trans. denied.

       Here, the marijuana was found in a dresser located next to the bed Helton was

sitting on as officers searched the house. And, not to belabor the point, Helton confessed

to possessing all of the drugs located in the house. In sum, we conclude there was

sufficient evidence to sustain all of Helton’s convictions.

2. Habitual Substance Offender Sentence

       Helton claims, and the State concedes, that the trial court erred by separately

sentencing him for being an habitual substance offender. A defendant who is convicted

of a substance offense and has two (2) prior unrelated substance offense convictions may

be sentenced as an habitual substance offender. I.C. § 35-50-2-10. An habitual substance

offender shall be sentenced to an “additional fixed term of at least three (3) years but not

more than eight (8) years imprisonment, to be added to the term of imprisonment

imposed under IC 35-50-2 or IC 35-50-3.” Id. “A[n] habitual substance offender finding

is not a separate crime but an enhancement of the sentence for the underlying crime to

which it is attached. Bauer v. State, 875 N.E.2d 744, 747 (Ind. Ct. App. 2007), trans.

denied.

                                              8
       The trial court ordered Helton to serve an additional eight (8) years consecutive to

his convictions for dealing in methamphetamine, maintaining a common nuisance, and

possession of marijuana.    Instead, the trial court should have enhanced one of the

convictions by eight (8) years. Therefore, we find that the trial court erred in sentencing

Helton in this fashion. We leave Helton’s aggregate sentence of twenty-three (23) years

in place but remand and instruct the trial court to enhance his dealing in

methamphetamine conviction by eight (8) years instead of sentencing him separately for

being an habitual substance offender.

       Affirmed and remanded

ROBB, CJ, and MAY, J, Concur.




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