 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                                      Mar 12 2014, 10:02 am
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:
TERI A. FLORY                                      GREGORY F. ZOELLER
Lafayette, Indiana                                 Attorney General of Indiana

                                                   MONICA A. TALBOT
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

STEVEN COX,                                        )
                                                   )
       Appellant-Defendant,                        )
                                                   )
           vs.                                     )      No. 79A05-1305-CR-216
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )

                     APPEAL FROM THE TIPPECANOE CIRCUIT COURT
                            The Honorable Donald L. Daniel, Judge
                       The Honorable Steven P. Meyer, Judge Pro Tempore
                              Cause No. 79C01-1203-FA-00009


                                         March 12, 2014
                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
         Steven Cox (“Cox”) was convicted in Tippecanoe Circuit Court of Class A felony

conspiracy to commit dealing in methamphetamine. Cox appeals his conviction and

argues that the evidence is insufficient to establish that there was an agreement between

Cox and his co-conspirators to manufacture methamphetamine and that he performed an

overt act in furtherance of that agreement.

         Concluding that Cox’s argument is simply a request to reweigh the evidence and

the credibility of the witnesses, we affirm.

                              Facts and Procedural History

         In January 2012, certain individuals, including Cox, were manufacturing

methamphetamine in an apartment building in Lafayette, Indiana.           The apartment

building was within one thousand feet of three schools and two family housing

complexes.

         Lindsay Evans (“Evans”) resided in one of the five apartments in the building.

Philip Santoro (“Santoro”) was at one point involved in a romantic relationship with

Evans.     Floyd Idle (“Idle”) lived in another apartment in the building, and Evans

considered Idle to be a father figure.         All of these individuals were addicted to

methamphetamine and continually manufactured (or assisted in the manufacture of)

methamphetamine in Evans’ apartment.

         On January 30, 2012, Melissa Southern’s (“Southern”) residence was under

surveillance pursuant to a tip from a confidential informant that methamphetamine was

being manufactured in her home. During the surveillance, a police officer observed Cox


                                               2
and Southern leave the home in Santoro’s truck.           Cox and Southern purchased

pseudoephedrine at a supermarket pharmacy and returned to Southern’s home. Southern

remained at her home, and Cox picked up Santoro and Santoro’s son. Cox and Santoro

intended to proceed to Evan’s apartment to manufacture methamphetamine.             Evans

allowed Cox to manufacture methamphetamine in her home in exchange for half of the

amount of methamphetamine he produced. Idle helped Evans dispose of the waste from

the manufacturing process and would also allow the manufacture of methamphetamine in

his apartment.

       As he was driving to Evans’ apartment, Cox failed to use his turn signal, and

therefore, Lafayette Police Officer Scott Anderson (“Officer Anderson”) initiated a traffic

stop. Cox identified himself to Officer Anderson as Gerald Cox, which is his brother’s

name. Officer Anderson arrested Cox because he knew that Cox was false informing and

driving on a suspended license. During the search incident to arrest, officers found a

syringe in Cox’s pocket and they also found 103 pseudoephedrine pills during the search

of Cox’s vehicle. Santoro, who was still in the vehicle, was not searched or arrested at

that time.

       Cox agreed to give a video-recorded interview to the investigating officers. Cox

told the officers that methamphetamine was frequently manufactured at Evans’ apartment.

Using the information provided by Cox, in addition to other information known to the

officers, Lafayette police officers obtained a warrant to search Evans’ apartment. During

the search, officers found the following items associated with the manufacture of

methamphetamine: empty containers of camp fuel, drain opener, drain cleaner, a syringe,

                                            3
plastic bags, empty blister packages of pseudoephedrine, ammonia sulfate, lithium

battery casings, coffee filters, and a plastic soda bottle with a tube attached to the lid. A

plastic bottle used to manufacture methamphetamine was also found in a garbage can

outside the apartment.

       On February 7, 2012, Cox, Santoro, Evans, Idle, and Haley Hann were charged

with Class A felony conspiracy to commit dealing in methamphetamine and Class A

felony dealing in methamphetamine. Cox was also charged with Class A misdemeanor

possession of paraphernalia and Class A misdemeanor operating a vehicle while

suspended. Cox’s three-day jury trial commenced on March 5, 2013. Before the close of

the evidence, Cox agreed to plead guilty to possession of paraphernalia and operating a

vehicle while suspended. The jury found him guilty of both Class A felony charges.

       On April 9, 2013, the trial court sentenced Cox to thirty-two years for the Class A

felony conspiracy to commit dealing in methamphetamine conviction, with twenty-two

years executed in the Department of Correction, five years suspended to supervised

probation and five years suspended to unsupervised probation. Cox was ordered to serve

concurrent one-year terms for the Class A misdemeanor convictions. The trial court

vacated Cox’s conviction for dealing in methamphetamine for double jeopardy reasons.

Cox appeals his conspiracy to commit dealing in methamphetamine conviction.

                                   Standard of Review

       When we review a challenge to the sufficiency of the evidence, we neither

reweigh the evidence nor judge the credibility of witnesses. Chappell v. State, 966

N.E.2d 124, 129 (Ind. Ct. App. 2012) (citing McHenry v. State, 820 N.E.2d 124, 126 (Ind.

                                             4
2005)), trans. denied. Rather, we consider only the probative evidence supporting the

conviction and the reasonable inferences to be drawn therefrom.         Id.   If there is

substantial evidence of probative value from which a reasonable trier of fact could have

drawn the conclusion that the defendant was guilty of the crime charged beyond a

reasonable doubt, then the judgment will not be disturbed. Baumgartner v. State, 891

N.E.2d 1131, 1137 (Ind. Ct. App. 2008).

                                 Discussion and Decision

       Cox argues that his conspiracy to commit dealing in methamphetamine conviction

is not supported by sufficient evidence because the State failed to prove that Cox had an

agreement with his charged co-conspirators to commit manufacturing methamphetamine

and/or that he performed an overt act in connection with the agreement. “A person

conspires to commit a felony when, with intent to commit the felony, he agrees with

another person to commit the felony.” Ind. Code § 35-41-5-2. Furthermore, “[t]he state

must allege and prove that either the person or the person with whom he agreed

performed an overt act in furtherance of the agreement.” Id. When establishing the

existence of a conspiracy, the State is not required to prove the existence of a formal

express agreement. Dickenson v. State, 835 N.E.2d 542, 552 (Ind. Ct. App. 2005), trans.

denied. Although relationship and association with the alleged co-conspirator, standing

alone, is insufficient to establish a conspiracy, an agreement can be inferred from

circumstantial evidence, which may include the overt acts of one of the parties in

furtherance of the criminal act. Id.



                                           5
       Indiana Code section 34-38-4-1.1 provides that “[a] person who . . . knowingly or

intentionally . . . manufactures . . . methamphetamine, pure or adulterated; . . . commits

dealing in methamphetamine[.]”1 The term “manufacture” includes, among other things,

production, preparation or processing of a controlled substance. Ind. Code § 35-48-1-18.

Cox’s charging information provides in pertinent part:

       During 2012, in Tippecanoe County, State of Indiana, [Evans, Santoro, Cox,
       Hann, Idle] and/or other unknown person(s) did, with the intent to
       manufacture Methamphetamine, agree to manufacture Methamphetamine,
       and one or more of the following overt acts were performed in furtherance
       of said agreement, to wit: Evans, Santoro, Cox, Hann, Idle, and/or unknown
       other(s) would obtain precursors, chemical reagents, or other materials to
       make Methamphetamine; Evans, Santoro, Cox, Idle, and/or unknown
       other(s) would bring precursors, chemical reagents, or other materials to the
       apartment building where Evans resided . . . ; Evans, Santoro, Cox, Hann,
       Idle, and/or unknown other(s) would keep materials for manufacturing
       Methamphetamine at various locations in Evans’ apartment building; on
       one or more occasion Evans, Santoro, Cox, Hann, Idle, and/or unknown
       other(s) would manufacture Methamphetamine in said apartment
       building . . . .

Appellant’s App. pp. 15-16.

       Cox argues that the State only proved that he was a methamphetamine addict and

had purchased pseudoephedrine to give to Santoro who would manufacture

methamphetamine for Cox. In support of his argument, Cox emphasizes the fact that

police officers never saw Cox at Evans’ apartment while it was under surveillance.

       At trial, Amy Morinskey, who was romantically involved with Santoro and

admitted to manufacturing methamphetamine at Evans’ apartment, testified that she knew


1
  The offense is generally classified as a Class B felony. But Cox committed the crime within one
thousand feet of three schools and two family housing complex, which elevated the offense to a Class A
felony. See Ind. Code § 35-48-4-1.1(b).

                                                  6
Cox and had seen him at Evans’ apartment.          Cox helped Morinskey manufacture

methamphetamine, and she used methamphetamine manufactured by Cox. Tr. pp. 94-95;

101. Evans also testified that Cox manufactured methamphetamine at her apartment in

January 2012. Evans stated that on some date in January 2012, Cox and Santoro were

manufacturing methamphetamine in her bathroom when it caught on fire. Tr. p. 248.

Evans testified that she and Cox would manufacture methamphetamine at the same time

to “see who could make the other one cough better.” Tr. p. 249. She explained that

“when you shoot up it makes you cough if it’s good.” Id. Evans stated that she did not

know how to use the needle to “shoot up” and Cox would help her with the needle. Id.

Finally, Evans testified that Cox understood that Evans would receive half of the

methamphetamine manufactured in her apartment, and Cox abided by that rule. Tr. p.

284.   Idle and Hann, who also used the methamphetamine manufactured in Evan’s

apartment, assisted in the manufacturing process by disposing of the waste.

       Santoro testified that he made methamphetamine with Cox during January 2012 at

Evans’ apartment.     Tr. pp. 191-92.     Cox manufactured methamphetamine at the

apartment approximately two dozen times during that month. Santoro explained that Cox

generally used the “anhydrous” method to manufacture methamphetamine, but also used

the “shake and bake” method.       Tr. p. 192.   Santoro stated that methamphetamine

manufacturing was occurring everyday at Evans’ apartment. Santoro admitted that he

and Cox gave methamphetamine to different individuals at the apartment.

       On January 30, 2012, Cox told Santoro that he was eligible to purchase more

pseudoephedrine. Santoro proceeded to Southern’s residence where Cox was located and

                                            7
used methamphetamine with Cox and Southern. The three discussed manufacturing

methamphetamine and whether they would do so at Southern’s home “or elsewhere”. Tr.

p. 197. Eventually, they decided to manufacture methamphetamine at Evans’ apartment

because “everything was there already . . . and [they] didn’t have to go and get anhydrous

and everything that goes along with that.” Tr. p. 198; see also Tr. pp. 223-34. Santoro

explained that using the anhydrous method produces higher quality methamphetamine

than the one-pot method. 2 Tr. p. 199.          But because anhydrous was difficult and

dangerous to obtain, Cox and Santoro agreed to use the one-pot method on that date. Id.

Santoro gave his box of pseudoephedrine to Cox and Southern, and because they were

eligible to purchase more pseudoephedrine, Cox and Southern proceeded to a pharmacy

to make that purchase.

       Southern’s home was under surveillance when Cox and Southern left her home

and drove to the pharmacy to purchase pseudoephedrine. The officers observed them

returning to Southern’s home. Southern remained at her home, and Cox picked up

Santoro and began to drive towards Evans’ apartment, and these movements were

observed by the officers. When Cox failed to use his turn signal, the officers initiated the

traffic stop, which led to Cox’s arrest.

       We must affirm Cox’s conviction unless no reasonable fact-finder could find that

the State proved the elements of conspiracy to manufacture methamphetamine beyond a

reasonable doubt. See Baumgartner, 891 N.E.2d at 1137. The evidence presented at trial


2
 Santoro also described for the jury how he and Cox had stolen anhydrous ammonia and the dangers
associated with that activity. Tr. p. 199.

                                               8
established an agreement between Cox and his co-conspirators to manufacture

methamphetamine and Cox’s pseudoephedrine purchase on the date of his arrest was an

overt act in furtherance of that agreement. For all of these reasons, we affirm Cox’s

conviction for Class A felony conspiracy to commit dealing in methamphetamine.3

        Affirmed.

BRADFORD, J., and PYLE, J., concur.




3
 Cox argues, in part, that the evidence was insufficient to support his conviction because Santoro and
Evans initially told the police that Cox was only a methamphetamine user but did not manufacture it.
These inconsistencies were extensively explored during questioning of those witnesses, and as we have
often stated, it is the fact-finder’s role to determine a witness’s credibility, which we will not reweigh on
appeal.

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