 Pursuant to Ind.Appellate Rule 65(D),

                                                                    FILED
 this Memorandum Decision shall not be
 regarded as precedent or cited before
 any court except for the purpose of
                                                                 Jan 30 2013, 9:38 am
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.
                                                                         CLERK
                                                                       of the supreme court,
                                                                       court of appeals and
                                                                              tax court




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

MATTHEW J. McGOVERN                                  GREGORY F. ZOELLER
Anderson, Indiana                                    Attorney General of Indiana

                                                     ANDREW FALK
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

NOAH SHANE WARREN,                                   )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )       No. 63A01-1204-CR-165
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                         APPEAL FROM THE PIKE CIRCUIT COURT
                          The Honorable Jeffrey L. Biesterweld, Judge
                               Cause No. 63C01-1010-FB-617


                                          January 30, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                     Case Summary

      Noah Shane Warren appeals his convictions for Class B felony dealing in

methamphetamine, Class D felony maintaining a common nuisance, and Class D felony

neglect of a dependent, as well as his habitual-offender enhancement. He contends that

the trial court abused its discretion in admitting into evidence a cold pack that listed

ammonium nitrate as an ingredient on its label and in allowing the State to play an audio

recording of a 911 call at trial. He also contends that there is insufficient evidence to

sustain his convictions. We hold that the trial court did not err in the admission of

evidence because the cold-pack label was not improper hearsay evidence and a proper

foundation was laid for the 911 call. We also find that there is sufficient evidence to

sustain Warren’s dealing in methamphetamine and neglect of a dependent convictions

and his habitual-offender enhancement, but not his maintaining a common nuisance

conviction.   We affirm in part and reverse in part.

                             Facts and Procedural History

      On October 16, 2010, Warren’s two daughters, ten-year-old K.W. and fourteen-

year-old C.W., were staying at his home in Pike County. That day, two of Warren’s

friends, Marty and Audrey, arrived at Warren’s house in their red Chevy Blazer. Marty

and Audrey went into Warren’s bedroom with him and closed the door. Later, Marty,

Audrey, Warren, and Warren’s two daughters left the house in the red Blazer. They first

went to the home of Jerry, one of Warren and Marty’s friends. Only Warren and Marty

went inside; when they came back outside, they were carrying a bag. They next went to

Oakland City where they dropped Marty off at a hardware store while everyone else went

                                             2
to an automotive supply store. When Marty returned to the car from the hardware store,

he was carrying a brown bag. The last stop made was at the home of someone named

Clint. Only Marty went inside. After leaving Clint’s house, they all went back to

Warren’s house.

      When they arrived at Warren’s house, Marty took all the items that they had

obtained into the bathroom and Warren began heating a clear liquid in a container in the

kitchen. C.W. was in the kitchen, and K.W. was going back and forth between the living

room and kitchen, which were connected. C.W. heard Marty tell Warren, “don’t do that.

It might blow up.” Tr. p. 398. Warren responded, “I’ve done this before.” Id. at 408.

After hearing this, C.W. decided to leave the house, fearing that “something bad [was]

going to happen.” Id. at 398. She went to the house of her grandparents, Terry and

Phyllis Warren, who lived on the same property but across a field from Warren. C.W.

tried to convince K.W. to come with her, but K.W. did not want to leave. As C.W. left,

Warren told her that she better not tell her grandparents that Marty and Audrey were at

the house; Terry and Marty “didn’t really get along.” Id. at 437.

      When C.W. got to her grandparents’ house, Phyllis asked if anyone was at

Warren’s house. C.W. lied and said no. Terry then asked her the same question and

C.W. lied again. Meanwhile, Terry’s nephew, Daniel Warren, had been setting up a tree

stand in the woods with his cousin, Ben Harris. Jamie Warren, who also lived on the

property with his father, Jerry, went to Daniel and told him that Terry needed help.

Daniel went to the house to help, thinking that Terry was hurt. Instead, Jerry told Daniel




                                            3
that Terry wanted help “trying to run some people off [Warren’s property] that [Terry]

didn’t want up there.” Id. at 289.

       Daniel drove his truck over to Warren’s house and noticed a strong chemical odor

that smelled like ether. He was concerned that methamphetamine was being made and

that the house might blow up. He was also concerned that his nieces might be in danger

as a result of the chemicals. Ben also arrived at Warren’s house, and Daniel told Ben to

back Daniel’s truck away from the house in case it blew up. Daniel then went up to the

house and knocked on the door but no one answered. As Daniel started to walk away

from the house, he saw Terry walking toward the house. Terry told Daniel he did not

think anyone was home and that he thought he had run them off. Daniel noted that the

red Blazer was still there.

       Daniel called Warren and found out that K.W. was still inside the house. Daniel

told Warren to let her out, but Warren responded that “there was nothing going on and

[Daniel] was effing crazy.” Id. at 296. K.W. heard Daniel yelling for her from outside,

but since she had not seen him for a long time, she did not recognize him and did not

leave the house.

       Daniel walked closer to the house and pretended like he was calling the police, but

he did not call immediately because he did not want to get Warren in trouble. From

inside the house, Warren told Daniel, “if I go to jail, I’m going to kick your ass.” Id. at

297. Warren then came out of the house and got in Daniel’s face. The two started

fighting and Daniel hit Warren several times.




                                            4
       Meanwhile, Terry and Phyllis arrived at Warren’s house. When Warren went

back inside, Phyllis followed him in and they began to argue, too. Phyllis tried to get into

the bathroom where Marty and Audrey were. Marty and Audrey “said they were having

sex in there,” id. at 301, but Phyllis could hear the toilet flushing “quite a few times.” Id.

Phyllis went back outside, and Warren followed, carrying a butcher block of knives.

Warren began to throw the knives at Daniel, telling Daniel to get away from his house.

Ben then told Daniel if Daniel was not going to call the police, he would. Daniel called

the police and his 911 call was recorded. He told the dispatcher that he was trying to “get

the kid out of the house.” Id. at 308. He said that a Chevy Blazer had just left the house,

and then went on to say, “I just don’t want that little girl to get hurt. The house could

blow up.” Id. at 311. Daniel then handed the phone to Phyllis, who had the following

conversation with the dispatcher:

       Dispatcher:   Has he made any threats?
       Phyllis:      Excuse me?
       D:            Has he threatened?
       P:            He has just, he has just yelled a lot.
       D:            Okay. He hasn’t, he hasn’t made, he hasn’t made any threats
                     on his own life or his daughter’s life?
       P:            No. No. No. Not, not so ever.

Id. at 313. While Daniel and Phyllis were on the 911 call, Marty and Audrey left

Warren’s house carrying a bag of items.

       About the same time, Terry also called the police. He told the dispatcher, “I want

to report a radical driver. I think they’re on dope and stuff. And they’re driving crazy.”

Id. at 315. He also told the dispatcher that the red Blazer “just went down Oatsville Road

toward 57.” Id. Warren then started removing items from the house, throwing some into

                                              5
the tree line next to the house. He also brought out a trash bag full of items, dumped

them into the burn pile, and tried to light them on fire, but they would not light. Police

officers also began to arrive, and as all of the officers approached the house, they smelled

the strong smell of ether, which appeared to be coming from inside the house. Id. at 510,

591, 646.

       Pike County Sheriff’s Department Deputy Brad Jenkins was the lead investigator

at the scene. Conservation Officer Duane Englert walked around the house and saw

K.W. inside. Officer Englert went to the door and Warren met him there. Officer Englert

told Warren that he needed to come outside so that they could talk. When Warren came

outside, Officer Englert handcuffed him and escorted him away from the house. Officer

Englert stayed with Warren while the other officers on the scene cleared the house,

obtained a search warrant, and searched the house and the tree line. Warren told Officer

Englert that he had been cleaning up and getting rid of some things in the house and had

taken a shoe box to the tree line to get rid of it. Id. at 518. Warren said that one of the

items inside the shoe box was a bloody sock because he had cut himself while he was

cleaning up. Id. Warren also said that he had started cleaning up when he found out that

the police were coming to his house. Id. at 521-22. During the conversation, Officer

Englert noticed that Warren was “somewhat over excited,” so he asked Warren about his

methamphetamine use. Id. at 544-45. Warren said that he had used methamphetamine

two days ago, but he had purchased it and not made it himself. Officer Jenkins asked

Officer Englert to conduct a taped interview with Warren. Officer Englert advised

Warren of his Miranda rights and asked him to give a taped statement. Warren then

                                             6
began recanting his story and gave a different statement than he had a few minutes before

when he was speaking to Officer Englert and not being taped. Id. at 522. Officer Englert

stopped the recording.

       Meanwhile, the other officers who had obtained a search warrant were searching

Warren’s home.       They found lithium batteries, two pairs of scissors, an empty

prescription bottle that had previously held 90 pills and was prescribed only four days

earlier, a manipulated light bulb and foil that could be used to smoke methamphetamine,

and a plate with a white residue on it. Id. at 570, 619-24, 631, 678-81.

       Officer Englert searched outside and found the burn pile and a white trash bag that

was partially open. Inside the trash bag were burned aerosol cans. Id. at 532. In the burn

pile were the outer cases of batteries. Id. at 665. Terry and Daniel directed officers to the

tree line where Warren had thrown some items, and officers found the box containing

Warren’s bloody sock, along with a cold pack, a plastic ketchup bottle with white residue

inside, and burnt cans with holes in the bottom. Id. at 369, 650.

       William Bowles, a forensic scientist, examined some of the items that were found

at Warren’s house.         The white residue inside the ketchup bottle was not

methamphetamine, ephedrine, or pseudoephedrine. Id. at 569-70. The plate with white

residue on it was washed with chloroform, and Bowles determined that it contained either

ephedrine or pseudoephedrine, precursors for manufacturing methamphetamine. Id. at

570-71. At trial, Bowles testified that simply putting pills that contained ephedrine or

pseudoephedrine on the plate would most likely not leave that type of residue, but it was




                                             7
not impossible; it was much more likely for the residue to be left if the pills were crushed

up. Id. at 581.

       The State charged Warren with Class B felony dealing in methamphetamine, Class

D felony maintaining a common nuisance, Class D felony possession of two or more

precursors, Class D felony neglect of a dependent, Class D felony possession of

methamphetamine, and Class A misdemeanor possession of paraphernalia. The State

later moved to amend the charging information and add a habitual substance offender

enhancement. The trial court granted the motion. The State then moved to dismiss the

Class D felony possession of methamphetamine charge.

       A jury trial was held in February 2012. At trial, the trial court admitted a cold

pack that listed ammonium nitrate as an ingredient on its labeling information into

evidence over Warren’s hearsay objection.        The trial court also admitted the audio

recording of Terry’s 911 call into evidence over Warren’s objection, finding that the State

had laid a proper foundation. The jury found Warren guilty on all counts, and Warren

pled guilty to the habitual-offender enhancement. At the sentencing hearing, the trial

court imposed a sentence of twelve years for dealing in methamphetamine, two years for

maintaining a common nuisance, two years for possession of two or more precursors, one

year for possession of paraphernalia, and two years for neglect of a dependent, all to be

served concurrently. This twelve-year sentence was enhanced by four years based upon

the habitual-offender enhancement, for an aggregate sentence of sixteen years.

       Warren now appeals.

                                Discussion and Decision

                                             8
       Warren raises six arguments on appeal: (1) whether the trial court erred in

admitting into evidence the cold-pack label that said it contained ammonium nitrate; (2)

whether the trial court abused its discretion in allowing the State to introduce Terry’s 911

call; (3) whether there is sufficient evidence to sustain his dealing in methamphetamine

conviction; (4) whether there is sufficient evidence to sustain his maintaining a common

nuisance conviction; (5) whether there is sufficient evidence to sustain his neglect of a

dependent conviction; and (6) whether there is sufficient evidence to sustain his habitual-

offender enhancement.

                                    I. Hearsay Evidence

       Warren contends that the trial court abused its discretion in admitting into

evidence a cold pack that listed ammonium nitrate as an ingredient on its label. A trial

court has broad discretion in ruling on the admission or exclusion of evidence.

Kimbrough v. State, 911 N.E.2d 621, 631 (Ind. Ct. App. 2009). The trial court’s ruling

on the admissibility of evidence will be disturbed on review only upon a showing of an

abuse of discretion. Id. An abuse of discretion occurs when the trial court’s ruling is

clearly against the logic, facts, and circumstances presented. Id. Error may not be

predicated upon a ruling that admits or excludes evidence unless a substantial right of the

party is affected. Ind. Evidence Rule 103.

       Warren argues that the label was inadmissible hearsay. The State concedes that

the cold-pack label is hearsay, “a statement, other than one made by the declarant while

testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.”

Ind. Evidence Rule 801(c). We agree that the label is hearsay but disagree with Warren

                                              9
that it is inadmissible. Hearsay is not admissible at trial unless it fits into one of a

number of exceptions, one of which is “Market quotations, tabulations, lists, directories,

or other published compilations, generally used and relied upon by the public or by

persons in particular occupations.” Ind. Evidence Rule 803(17).

       This hearsay exception was addressed in the context of drug labels for the first

time in Reemer v. State, 835 N.E.2d 1005 (Ind. 2005), which set forth two foundational

requirements for a drug label’s admissibility into evidence. For the first requirement, our

Supreme Court held that “labels of commercially marketed drugs are properly admitted

into evidence under the exception provided by Evidence Rule 803(17) to prove the

composition of the drug.” Id. at 1009. The court in Reemer also found “various types of

compilations or published materials other than drug labels to be admissible hearsay

‘where they are generally relied upon either by the public or by people in a particular

occupation.’” Forler v. State, 846 N.E.2d 266, 268-69 (Ind. Ct. App. 2006) (citing

Reemer, 835 N.E.2d at 1008). The second requirement is that “there must be some

evidence that at the time the police seized a container, the contents of the package or

container where the label is placed are the original contents.” Id. at 270. However, in

Robertson v. State, this Court did not decide the issue of the second Reemer foundational

requirement, but it did suggest that it may not be applicable in a case where a defendant is

charged with manufacturing methamphetamine:

       Indeed, the second foundational requirement does make sense when the
       State seeks to admit an exhibit intended to prove that a defendant possessed
       a precursor indicated on a label.            However, for a dealing in
       methamphetamine by manufacturing charge, where the State is required to
       prove that a defendant manufactured methamphetamine or was in the
       process of manufacturing methamphetamine, it does not seem to make
                                            10
       sense because the State is trying to prove that the defendant already used
       the precursors or other items associated with the manufacturing process.

Robertson, 877 N.E.2d 507, 514 n.3 (Ind. Ct. App. 2007), reh’g denied.

       In this case, Warren contends that the cold pack meets neither of the Reemer

foundational requirements because the State failed to establish that the public would

reasonably rely upon the cold-pack label and because the cold pack was open when it was

found. Appellant’s Br. p. 34. We disagree.

       We find that the cold pack satisfies the first Reemer requirement. In Reemer, our

Supreme Court relied on an Iowa Supreme Court case that dealt with the label on a pack

of lithium batteries. State v. Heuser, 661 N.W.2d 157, 165 (Iowa 2003). The court

“acknowledged that the batteries were not governed by strict labeling requirements, as

was the cold medicine, but concluded nonetheless, ‘There is nothing in the record to

suggest the battery labels indicating they contained lithium were untrustworthy or had

been altered from their original form.’” Forler, 846 N.E.2d at 269 (quoting Heuser, 661

N.W.2d at 165). The same is true in this case; while the cold-pack label is not governed

by the same strict requirements as drug labels, there is nothing in the record that shows

that it is either false or has been altered. The general public can therefore rely upon the

label, satisfying the first Reemer requirement.

       As for the second Reemer requirement, we agree with this Court’s decision in

Robertson that it does not logically apply to a dealing in methamphetamine by

manufacturing charge. Robertson, 877 N.E.2d at 514 n.3. Requiring a precursor to be

unaltered when the defendant is accused of using that precursor to manufacture

methamphetamine is counterintuitive.      While this requirement may be logical for a
                                             11
possession of methamphetamine charge, the same cannot be said in a case like this when

the charge is for manufacturing.

       However, even if the decision to admit the cold-pack label was an abuse of

discretion, we will not reverse the trial court if the ruling constituted harmless error.

Decker v. Zengler, 883 N.E.2d 839, 845 (Ind. Ct. App. 2008), reh’g denied, trans. denied.

We have held that “any error in admission of evidence is harmless if the same or similar

evidence has been admitted without objection.” Edwards v. State, 730 N.E.2d 1286,

1289 (Ind. Ct. App. 2000). In this case, Deputy Jenkins twice testified that the cold pack

contained ammonium nitrate that, when mixed with other items, would make anhydrous

gas. Tr. p. 487-88, 655. Defense counsel did not object to this testimony. Since there

was no objection, evidence that the cold pack contained ammonium nitrate was before the

jury, so any error in admitting the cold pack’s label would be harmless.

                            II. Authentication of the 911 Call

       Warren also contends that the trial court erred in allowing the State to play the

audio recording of Terry’s 911 call. Again, a trial court has broad discretion in ruling on

the admission or exclusion of evidence. Kimbrough, 911 N.E.2d at 631. The trial court’s

ruling on the admissibility of evidence will be disturbed on review only upon a showing

of an abuse of discretion. Id. An abuse of discretion occurs when the trial court’s ruling

is clearly against the logic, facts, and circumstances presented. Id. Error may not be

predicated upon a ruling that admits or excludes evidence unless a substantial right of the

party is affected. Evid. R. 103.




                                            12
       Indiana Evidence Rule 901(a) governs authentication of evidence and provides

that the “requirement of authentication or identification as a condition precedent to

admissibility is satisfied by evidence sufficient to support a finding that the matter in

question is what its proponent claims.” Warren argues that the State did not present

sufficient evidence to authenticate the 911 call before playing it. We disagree.

       At trial, Daniel testified that he was present when Terry made the 911 call. Tr. p.

303-05. He also testified that he had listened to the recording before trial, verified its

accuracy, and put his initials and date on the CD after he listened to it. Id. at 302-03. We

find this to be sufficient authentication of the 911 call to admit it into evidence. Warren,

however, argues that Daniel’s statement during his testimony that “I don’t know if

Terry’s on there,” id. at 304, is sufficient to undermine his authentication of the call. But

we must consider conflicting evidence “most favorably to the trial court’s ruling.” Drane

v. State, 867 N.E.2d 144, 146 (Ind. 2007). After making that statement, Daniel went on

to identify Terry’s voice on the 911 call, so we find no error in the trial court’s admission

into evidence of the 911 call.

       Warren also contends that this is an example of evidence admitted under the

“silent witness” theory and therefore requires a heightened standard of authentication.

The “silent witness” theory allows “videotapes and photographic evidence [to] be

admitted as substantive evidence, rather than merely as demonstrative evidence.”

Edwards v. State, 762 N.E.2d 128, 136 (Ind. Ct. App. 2002). When this is the case, a

higher standard of authenticity must be met because “there is no one who can testify as to

its accuracy and authenticity [and] the photograph must ‘speak for itself’ . . . because

                                             13
such a ‘silent witness’ cannot be cross-examined.” Id. But this is not the case here.

Daniel and Terry both testified at trial and were available for cross-examination. Daniel

also testified to provide authentication for the 911 call, so the call was not admitted under

the “silent witness” theory.

       We therefore hold that the 911 call was properly authenticated and the trial court

did not abuse its discretion in admitting it into evidence.

                                III. Sufficiency of the Evidence

       Our standard of review with regard to sufficiency claims is well settled. In

reviewing a sufficiency of the evidence claim, this Court does not reweigh the evidence

or judge the credibility of the witnesses. Bond v. State, 925 N.E.2d 773, 781 (Ind. Ct.

App. 2010), reh’g denied, trans. denied. We consider only the evidence most favorable

to the judgment and the reasonable inferences draw therefrom and affirm if the evidence

and those inferences constitute substantial evidence of probative value to support the

judgment. Id. Reversal is appropriate only when a reasonable trier of fact would not be

able to form inferences as to each material element of the offense. Id.

                               A. Dealing in Methamphetamine

       Indiana Code section 35-48-4-1.1(a) governs dealing in methamphetamine and

provides:

       (a) 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; . . .
       commits dealing in methamphetamine, a Class B felony . . . .
                                             14
Additionally, Indiana Code section 35-48-1-18 defines “manufacture” in relevant part as:

      (1) 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 packaging or repackaging of the substance or
      labeling or relabeling of its container.

      In Bush v. State, 772 N.E.2d 1020, 1023 (Ind. Ct. App. 2002), trans. denied, this

Court held that “[t]he statute does not state that the process must be completed or that

there must actually be a final product before it applies.” All that is needed is sufficient

circumstantial evidence of methamphetamine production so that “a reasonable juror in

this case could certainly conclude that [the defendant] manufactured methamphetamine.”

Id. Additionally, in Dawson v. State, 786 N.E.2d 742, 748 (Ind. Ct. App. 2003), trans.

denied, this court held that “once an individual crushes up pills in order to separate the

ephedrine from the pill binders, the manufacturing process has begun,” as the defendant

has begun extracting the ephedrine from the pill.

      Warren contends that the State has failed to provide sufficient evidence to show

that he had begun the manufacturing process. We disagree. At trial, the State presented

evidence that police officers found metal battery casings, lithium batteries, and scissors

commonly used to strip lithium from batteries at Warren’s house. Tr. p. 622-23, 665.

They also found a cold pack – which contains ammonium nitrate – that had been cut open

and placed in the bloody sock that Warren had thrown into the tree line, along with a

plate containing a residue that was either ephedrine or pseudoephedrine. Id. at 570-71,

650, 681.    Deputy Jenkins testified that battery casings are frequently found at

                                            15
methamphetamine labs and that there is no reason for metal casings from alkaline

batteries to be removed. Id. at 669-73, 701. Deputy Jenkins also testified about how

ammonium nitrate is removed from cold packs and mixed with lye to produce anhydrous

gas, a necessary element to manufacture methamphetamine. Id. at 485-88, 490-91. He

also noted that he could not think of any other reason why someone would cut open a

cold pack other than to manufacture methamphetamine. Id. at 655. Further, the forensic

scientist testified that the ephedrine powder that was found on the plate most likely came

from pills being crushed, id. at 581, which Deputy Jenkins explained was a common

method used by methamphetamine manufacturers to extract the necessary ephedrine. Id.

at 470. Finally, the State presented the exchange between Marty and Warren when Marty

told Warren “don’t do that. It might blow up,” id. at 398, and Warren replied, “I’ve done

this before.” Id. at 408.

       Based on this circumstantial evidence, a reasonable juror could find that

methamphetamine was being manufactured at Warren’s house. Although Warren argues

that he could not have manufactured methamphetamine with the ingredients found at his

house, our holding in Bush clearly states that the final product or final process need not

be found in order for the statute to apply. Our holding in Dawson also applies, as a

reasonable juror could find that Warren had crushed pills to extract ephedrine, which is

sufficient to trigger the manufacturing process.     We therefore hold that there was

sufficient circumstantial evidence to sustain Warren’s manufacturing methamphetamine

conviction.

                            B. Maintaining a Common Nuisance

                                           16
       Warren also contends that there is insufficient evidence to sustain his maintaining

a common nuisance conviction. Indiana Code section 35-48-4-13(b)(2)(B) governs this

offense, stating in relevant part:

       (b) A person who knowingly or intentionally maintains a building,
       structure, vehicle, or other place that is used one (1) or more times: . . .
              (2) for unlawfully: . . .
                      (B) keeping; . . .
       controlled substances, or items of drug paraphernalia as described in IC 35-
       48-4-8.5; commits maintaining a common nuisance, a Class D felony.

Warren argues that there was no evidence that he used his residence to keep

methamphetamine so his conviction must be reversed. We agree.

       In the charging information, the State alleged that Warren used his house to keep

methamphetamine.       Appellant’s App. p. 33.         Since there was no evidence of any

methamphetamine found in the house or on his person, there is insufficient evidence to

sustain Warren’s conviction as charged. While there were items of drug paraphernalia in

his house, the State did not charge Warren as such, so his conviction must be reversed.

                                     C. Neglect of a Dependent

       Warren was convicted of Class D felony neglect of a dependent. Indiana Code

section 35-46-1-4(a)(1) governs neglect of a dependent and states in relevant part:

       (a) A person having the care of a dependent, whether assumed voluntarily
       or because of a legal obligation, who knowingly or intentionally:
              (1) places the dependent in a situation that endangers that
              dependent’s life or health;
       commits neglect of a dependent, a Class D felony.

The    charging    information        states   that   Warren     “attempted   to   manufacture

methamphetamine within the kitchen of his residence and within the reach of a ten year

old, K.W. (A Minor) . . . .” Id. at 152. Warren contends that the State failed to show that
                                                 17
he took a substantial step toward manufacturing methamphetamine in his kitchen, so

there is insufficient evidence for his neglect of a dependent conviction to stand. We

disagree.

      Indiana Code section 35-41-5-1 defines attempt and states that “[a] person

attempts to commit a crime when, acting with the culpability required for commission of

the crime, he engages in conduct that constitutes a substantial step toward commission of

the crime.” The evidence adduced at trial shows that Warren did make a substantial step

toward manufacturing methamphetamine. Multiple precursors were found in his house,

as discussed above, and traces of ephedrine were found on a plate, presumably from

crushing cold pills to extract the ephedrine. Tr. p. 581. It was therefore reasonable for

the jury to find that Warren had taken a substantial step toward the manufacturing of

methamphetamine. This is sufficient evidence to sustain his conviction.

                                  D. Habitual Offender

      Warren finally argues that there is insufficient evidence to sustain his habitual-

offender enhancement. In order to be determined a habitual offender, the State must

establish that the defendant has committed a substance offense after having previously

committed two prior unrelated substance offenses. Ind. Code § 35-50-2-10(b). At trial,

the State presented evidence that Warren was convicted of operating a vehicle with an

ACE of .15 or more on or about June 28, 2004, and convicted of operating a vehicle

while intoxicated on or about December 1, 2008. State’s Ex. 43-47. Warren also

admitted to these convictions. Tr. p. 1486-87. Therefore, Warren’s contention is that the

State has failed to provide sufficient evidence that he was convicted of a third substance

                                           18
offense in the present case, making him ineligible for a habitual-offender enhancement.

We disagree.

       A “substance offense” is defined as “a Class A misdemeanor or a felony in which

the possession, use, abuse, delivery, transportation, or manufacture of alcohol or drugs is

a material element of the crime.” Ind. Code § 35-50-2-10(a)(2) (emphasis added). As

discussed above, the State has provided sufficient evidence to sustain Warren’s

conviction for Class B felony Dealing in Methamphetamine. A material element of Class

B felony Dealing in Methamphetamine that the State proved in the present case is that

Warren knowingly or intentionally manufactured methamphetamine, placing it squarely

under the statutory definition of a “substance offense.”

       The State has provided sufficient evidence of Warren’s third conviction for a

substance offense and therefore sufficient evidence to sustain his habitual-offender

enhancement.

       Affirmed in part, reversed in part.

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




                                             19
