                                                                 Sep 30 2015, 8:52 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Anthony S. Churchward                                      Gregory F. Zoeller
Anthony S. Churchward, P.C.                                Attorney General of Indiana
Ft. Wayne, Indiana                                         Indianapolis, Indiana

                                                           Cynthia L. Ploughe
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Christopher A. Lothamer,                                   September 30, 2015
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           92A05-1501-CR-26
        v.                                                 Appeal from the Whitley Circuit
                                                           Court
State of Indiana                                           The Honorable James R. Heuer
Appellee-Plaintiff                                         Trial Court Cause No.
                                                           92C01-1401-FB-18



Altice, Judge.


                                           Case Summary




Court of Appeals of Indiana | Opinion 92A05-1501-CR-26 | September 30, 2015              Page 1 of 7
[1]   Following a jury trial, Christopher Lothamer was convicted of Dealing in

      Methamphetamine by Manufacturing,1 a class B felony, along with numerous

      other drug offenses. On appeal, Lothamer presents one issue for our review:

      Whether the evidence is sufficient to sustain his conviction for dealing in

      methamphetamine by manufacturing.


[2]   We affirm.


[3]   Lothamer lived in a trailer located on Lot 51 in the Miami Village Mobile

      Home Park with his fiancée, Tina Farber. Farber was in the process of

      purchasing the trailer from her grandfather. Lothamer began living in the

      trailer with Farber in August 2012 and lived there continuously until January

      2014. In August 2013, Lothamer introduced Farber to methamphetamine, and

      they began using the drug together. By December 2013, Lothamer and Farber

      were using methamphetamine almost daily.


[4]   Initially, Lothamer would purchase methamphetamine from Willie Jensen or

      exchange pseudoephedrine for it. On three occasions, Lothamer and Farber

      agreed to allow Jensen to manufacture methamphetamine in the bathroom of

      their trailer. Lothamer also installed hooks so blankets could be hung to keep

      the odors contained to the bathroom while Jensen cooked the




      1
        See Ind. Code § 35-48-4-1.1. Effective July 1, 2014, this offense was reclassified as a Level 5 felony.
      Because Lothamer committed this offense prior to that date, it retains its prior classification as a class B
      felony.



      Court of Appeals of Indiana | Opinion 92A05-1501-CR-26 | September 30, 2015                            Page 2 of 7
      methamphetamine. After the first occasion in December 2013, Lothamer,

      Farber, and Jensen smoked the finished product. Following the second

      occasion, also in December 2013, Lothamer used a needle to inject some of the

      methamphetamine Jensen had just made.


[5]   The third occasion was on January 28, 2014, when Lothamer and Farber again

      permitted Jensen to use their bathroom to make methamphetamine. Lothamer

      and Jensen went to the store to pick up some items needed to cook the

      methamphetamine. When they returned, Jensen went into the bathroom to

      make methamphetamine. On this occasion, Lothamer was present in the

      bathroom with Jensen.


[6]   On January 29, 2014, Detective William Brice of the Whitley County Sherriff’s

      Department served a search warrant for the trailer located on Lot 51. Lothamer

      and Farber were not present at the time. During the search of the trailer,

      Detective Brice discovered numerous items used for manufacturing

      methamphetamine in the bedroom, kitchen, and living area. Three plastic

      bottles that were used as one-pot methamphetamine labs were discovered in the

      freezer. Additional facts will be provided as necessary.


[7]   On January 31, 2014, Lothamer was charged with Count I, dealing in

      methamphetamine by manufacturing, a class B felony; Count II, possession of

      methamphetamine, a class D felony; Count III, maintaining a common

      nuisance, a class D felony; Count IV, possession of chemical reagents or

      precursors with intent to manufacture a controlled substance, a class D felony;


      Court of Appeals of Indiana | Opinion 92A05-1501-CR-26 | September 30, 2015   Page 3 of 7
      Count V, possession of paraphernalia, a class A misdemeanor; and Count VI,

      possession of precursors within seven years of a prior conviction for dealing in

      methamphetamine, a class D felony. A jury trial was held on October 28 and

      29, 2014, at the conclusion of which the jury found Lothamer guilty of Counts

      I, II, IV, and V, and not guilty of Count III. Thereafter, Lothamer pleaded

      guilty to Count VI.2 The trial court held a sentencing hearing on December 15,

      2014, and sentenced Lothamer to an aggregate sentence of ten years.


[8]   On appeal, Lothamer argues that there is insufficient evidence to sustain his

      conviction for dealing in methamphetamine by manufacturing. The State’s

      theory was that Lothamer assisted Jensen in the manufacture of

      methamphetamine, and the jury was instructed accordingly.


[9]       Our standard of reviewing challenges to the sufficiency of the evidence

      supporting a criminal conviction is well settled.

                 When reviewing a challenge to the sufficiency of the evidence
                 underlying a criminal conviction, we neither reweigh the
                 evidence nor assess the credibility of witnesses. The evidence—
                 even if conflicting—and all reasonable inferences drawn from it
                 are viewed in a light most favorable to the conviction. “[W]e
                 affirm if there is substantial evidence of probative value
                 supporting each element of the crime from which a reasonable
                 trier of fact could have found the defendant guilty beyond a




      2
          Count VI was not tried during Phase 1 of the jury trial because of the enhancement aspect of the offense.


      Court of Appeals of Indiana | Opinion 92A05-1501-CR-26 | September 30, 2015                          Page 4 of 7
               reasonable doubt.” Davis v. State, 813 N.E.2d 1176, 1178 (Ind.
               2004).


       Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012).


[10]   To sustain a conviction for dealing in methamphetamine, the State’s evidence

       must prove that Lothamer “knowingly or intentionally . . .manufacture[d]

       methamphetamine, pure or adulterated.” I.C. § 35-48-4-1.1(a)(1)(A). To

       convict Lothamer as an accomplice, the State was required to prove that he

       knowingly or intentionally aided, induced, or caused Jensen to manufacture

       methamphetamine. See Ind. Code § 35-41-2-4.


               It is well established that a person who aids another in
               committing a crime is just as guilty as the actual perpetrator. To
               be convicted as an accomplice, it is not necessary for a defendant
               to have participated in every element of the crime. While mere
               presence at the scene of the crime is insufficient to establish
               accomplice liability, presence may be considered along with the
               defendant’s relation to the one engaged in the crime and the
               defendant’s actions before, during, and after the commission of
               the crime.


       Green v. State, 937 N.E.2d 923, 927 (Ind. Ct. App. 2010) (citations omitted),

       trans. denied.


[11]   We have held that a person can be guilty of dealing in methamphetamine by

       manufacturing even though the person does not actually “cook” the product.

       In Fowler v. State, 900 N.E.2d 770 (Ind. Ct. App. 2009), the defendant

       essentially conceded that another person manufactured methamphetamine in


       Court of Appeals of Indiana | Opinion 92A05-1501-CR-26 | September 30, 2015   Page 5 of 7
       his home. The defendant, however, claimed that his assistance was

       “inadvertent and unintentional” as he only carried a bag into his home without

       knowing its contents and only later realized the nature of what was in the bag.

       At that point, the defendant instructed his friend to “do what he had to do, and

       then leave.” Id. at 775. This court upheld the defendant’s conviction for

       assisting with the manufacture of methamphetamine given that the

       manufacturing occurred at defendant’s home and with his knowledge, even

       though the defendant was not present in the room when the manufacturing

       occurred, drug paraphernalia was found in virtually every room in the house,

       the defendant carried at least some of the items into the house, odors and

       vapors were readily detectable in the house, and methamphetamine residue was

       found on a plate in the kitchen. Id.


[12]   Here, Lothamer and Farber permitted Jensen to use their home to manufacture

       methamphetamine. Lothamer was present in the home on each occasion and

       even admitted supervising Jensen on one occasion. Lothamer never expressed

       any opposition to having the drug produced at his home. In fact, Lothamer

       provided pseudoephedrine to Jensen to use in the manufacture of

       methamphetamine and went to the store to purchase items to be used in the

       manufacturing process. Lothamer also installed hooks so blankets could be

       hung to keep the odors contained to the bathroom while Jensen cooked the

       methamphetamine. Lothamer was therefore not merely present at the scene,

       but acted in concert with Jensen to manufacture methamphetamine.




       Court of Appeals of Indiana | Opinion 92A05-1501-CR-26 | September 30, 2015   Page 6 of 7
[13]   Further, as in Fowler, methamphetamine precursors and paraphernalia were

       found in numerous rooms in Lothamer’s and Farber’s home. Additionally,

       three one-pot methamphetamine labs were found in the freezer and

       methamphetamine residue was found on a coffee filter located in the home.


[14]   While Lothamer did not own the trailer, he began living with Farber, his

       fiancée, in August 2012, and lived there continuously until January 2014.

       Lothamer used the address of the trailer on his driver’s license. Farber testified

       that she and Lothamer made joint decisions, including the decision to allow

       Jensen to manufacture methamphetamine in their home. The totality of the

       evidence supports a reasonable inference that Lothamer knowingly and

       intentionally aided Jensen in the manufacture of methamphetamine. We

       therefore affirm Lothamer’s conviction for dealing in methamphetamine by

       manufacturing.


[15]   Judgment affirmed.


[16]   Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 92A05-1501-CR-26 | September 30, 2015   Page 7 of 7
