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:

JESSE R. POAG                                      GREGORY F. ZOELLER
Newburgh, Indiana                                  Attorney General of Indiana

                                                   CHANDRA K. HEIN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana

                                                                          Dec 10 2013, 9:40 am

                               IN THE
                     COURT OF APPEALS OF INDIANA

TIMOTHY D. DRISCOLL, JR.,                          )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No.82A05-1303-CR-147
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                  APPEAL FROM THE VANDERBURGH CIRCUIT COURT
                          The Honorable David D. Kiely, Judge
                            Cause No. 82C01-1103-FA-373



                                       December 10, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Timothy D. Driscoll, Jr. (“Driscoll”) was convicted of dealing in methamphetamine1

as a Class B felony and was sentenced to eight years executed. He appeals his conviction

raising the following restated issues:

       I.        Whether the trial court abused its discretion when it admitted
                 testimony and photographs of evidence that had been destroyed by
                 law enforcement prior to the trial; and

       II.       Whether sufficient evidence was presented to support Driscoll’s
                 conviction.

       We affirm.

                           FACTS AND PROCEDURAL HISTORY

       In the early morning hours of March 22, 2011, Deputy Brian Bishop (“Deputy

Bishop”) of the Vanderburgh County Sheriff’s Office, while working for his part-time

security business LawMan Security Consulting, was patrolling the premises of Hoesli

Diesel, which was a business that provided services for diesel engines. Around 2:00 a.m.,

as Deputy Bishop drove around the side of the building, he noticed a pick-up truck backed

up to one of the loading bays. Because he regularly patrolled the business, Deputy Bishop

knew it was uncommon for a truck to be backed up to a bay door at that time in the morning.

When he began driving toward the bay door, a man, later identified as Driscoll, who was

an employee at Hoesli Diesel and was driving a company vehicle, approached him.

Driscoll appeared extremely nervous, and Deputy Bishop asked him if anyone was inside

the building. Driscoll replied, “yes, . . . a guy named Jeff.” Tr. at 33.




       1
           See Ind. Code § 35-48-4-1.1(a).

                                              2
       Deputy Bishop called for backup, and another deputy arrived. Deputy Bishop then

went inside Hoesli Diesel. Once inside, Deputy Bishop discovered a man, who was later

identified as Jeffrey Peaugh (“Peaugh”). Peaugh was in one of the offices “with his feet

propped up on one of the desks, . . . pornographic material on the computer, and what

appeared to . . . be a pipe usually used to smoke narcotics.” Id. at 34. Deputy Bishop

ordered Peaugh out of the office, placed him in custody, and searched him. During the

search, Deputy Bishop felt a “soft bag of material” that he believed was narcotics based on

his training and experience. Id. at 35. The bag was later determined to contain ten grams

of methamphetamine. Both Driscoll and Peaugh were put under arrest.

       Deputy Bishop then contacted Dan Hoesli (“Hoesli”), the owner of Hoesli Diesel,

and requested that he come to the building. When Hoesli arrived, Deputy Bishop asked

that he walk through the premises and tell the deputy if anything was out of place. As

Hoesli walked through the building, he noticed that the exhaust system, which was used to

eliminate odors, had been turned on, which was unusual because the business’s operations

had ceased for the night. Hoesli showed Deputy Bishop that the exhaust system had been

turned on, and they began checking the exhaust tubes in each truck bay to determine which

one was on. As they came to the last bay, Hoesli showed Deputy Bishop that there was a

large pickle jar sitting on the steps on the side of a semi. Based on his training and

experience, Deputy Bishop knew the jar was actually a one-pot methamphetamine reaction

vessel. Two more glass jars were discovered on the ground of the bay, one with a heat

lamp pointing towards it. All of these glass jars were located next to Driscoll’s work space.



                                             3
       Deputy Bishop vacated the premises, called the fire department, and notified the

narcotics unit. Another deputy transported Peaugh to the jail, and when Peaugh was

searched during booking, several thousands of dollars in cash was found in his pocket.

When Driscoll was booked into jail, a large amount of cash was also discovered on his

person.

       Detective Heath Stewart (“Detective Stewart”), a member of the Joint Drug Task

Force, responded to Deputy Bishop’s call. When he arrived at the premises, his primary

function was to photograph the scene. In addition to the reaction vessel, Detective Stewart

found funnels, a one-gallon container of Coleman fuel and other organic solvents, and a

black box in Driscoll’s work station that contained manufacturing paraphernalia. Detective

Stewart also found a one-gallon tank garden sprayer, tubing, Kosher salt, two containers of

Liquid Fire sulfuric acid, coffee filters, a high watt light, two glass jars containing liquid,

an air purifying respirator (“APR”) mask, plastic sandwich bags, tools commonly used to

strip lithium batteries, and an HCL generator, all of which he recognized as items

commonly used in the manufacturing of methamphetamine.                As Detective Stewart

photographed the scene, a state trooper with the methamphetamine unit neutralized the

reaction vessel due to its instability. Detective Stewart photographed the reaction vessel

prior to its neutralization. The reaction vessel posed a significant safety risk because it

could easily explode if the lithium inside the jar was exposed to air, particularly because it

was located in a diesel engine mechanic shop. Video surveillance footage of the premises

showed Peaugh and Driscoll enter and exit the shop area multiple times and approach

Driscoll’s work station while the methamphetamine was being manufactured.

                                              4
       The State charged Driscoll with two counts of dealing in methamphetamine, each

as a Class A felony. A jury trial was held, at the conclusion of which, Driscoll was found

guilty of one count of Class B felony dealing in methamphetamine, a lesser included

offense of his charged offense, and not guilty of the other count of Class A felony dealing

in methamphetamine. He was sentenced to eight years executed in the Department of

Correction. Driscoll now appeals.

                             DISCUSSIONAND DECISION

                                I. Admission of Evidence

       The admission and exclusion of evidence falls within the sound discretion of the

trial court, and we review the admission of evidence only for abuse of discretion. Bradford

v. State, 960 N.E.2d 871, 873 (Ind. Ct. App. 2012) (citing Wilson v. State, 765 N.E.2d 1265,

1272 (Ind. 2002)). An abuse of discretion occurs where the decision is clearly against the

logic and effect of the facts and circumstances. Id. (citing Smith v. State, 754 N.E.2d 502,

504 (Ind. 2001)). Even if the trial court’s decision was an abuse of discretion, we will not

reverse if the admission of evidence constituted harmless error. Combs v. State, 895 N.E.2d

1252, 1255 (Ind. Ct. App. 2008), trans. denied. Error is harmless if it does not affect the

substantial rights of the defendant. Id. at 1258.

       Driscoll argues that the trial court abused its discretion when it allowed testimony

and photographs concerning the reaction vessel to be admitted at his trial. He contends

that such evidence should not have been admitted because the State did not properly

preserve a sample of the chemicals contained within the jar pursuant to Indiana Code



                                              5
section 35-33-5-5(e). Driscoll further asserts, that the admission of this evidence was not

harmless error because much of the testimony at trial centered around the reaction vessel.

       Criminal defendants have the right to examine physical evidence in the possession

of the State under the Fourteenth Amendment to the United States Constitution and Article

I, Section 12 of the Indiana Constitution. Jones v. State, 957 N.E.2d 1033, 1037 (Ind. Ct.

App. 2011). “However, the State does not have ‘an undifferentiated and absolute duty to

retain and preserve all material that might be of conceivable evidentiary significance in a

particular prosecution.’” Terry v. State, 857 N.E.2d 396, 406 (Ind. Ct. App. 2006) (quoting

Arizona v. Youngblood, 488 U.S. 51, 58 (1988)), trans. denied. In the context of hazardous

chemicals and materials, tension arises between the practical need for destruction and the

threat of prejudice to the substantial rights of a criminal defendant, which necessarily

occurs when evidence is destroyed. Jones, 957 N.E.2d at 1037. Indiana Code section 35-

33-5-5 sets forth requirements that must be satisfied before evidence may be destroyed and

states in pertinent part:

       A law enforcement agency may destroy or cause to be destroyed chemicals,
       controlled substances, or chemically contaminated equipment (including
       drug paraphernalia as described in IC 35-48-4-8.5) associated with the illegal
       manufacture of drugs or controlled substances without a court order if all the
       following conditions are met:

       (1)     The law enforcement agency collects and preserves a sufficient
               quantity of the chemicals, controlled substances, or chemically
               contaminated equipment to demonstrate that the chemicals, controlled
               substances, or chemically contaminated equipment was associated
               with the illegal manufacture of drugs or controlled substances.
       (2)     The law enforcement agency takes photographs of the illegal drug
               manufacturing site that accurately depict the presence and quantity of
               chemicals, controlled substances, and chemically contaminated
               equipment.

                                             6
       (3)    The law enforcement agency completes a chemical inventory report
              that describes the type and quantities of chemicals, controlled
              substances, and chemically contaminated equipment present at the
              illegal manufacturing site.

       The photographs and description of the property shall be admissible into
       evidence in place of the actual physical evidence.

Ind. Code § 35-33-5-5(e).

       In the present case, the contents of the reaction vessel, discovered near the semi in

Driscoll’s work station, were destroyed due to their instability and the risk of explosion. A

sample of the contents of the reaction vessel was not taken because doing so would have

created a dangerous situation. Tr. at 154. The reaction vessel posed a significant safety

risk because it could easily explode if the lithium inside the jar was exposed to air,

particularly because it was located in a diesel engine mechanic shop. Photographs were

taken of the scene that depicted the presence and quantity of all of the chemicals found and

of the reaction vessel, including its location at the scene. The police also cataloged the

various substances and the amounts thereof discovered at the scene.

       Assuming without deciding that the trial court abused its discretion in admitting the

evidence at issue because the State failed to follow Indiana Code section 35-33-5-5(e), we

conclude that the error was harmless. Even if the trial court’s decision was an abuse of

discretion, we will not reverse if the admission of evidence constituted harmless error.

Combs, 895 N.E.2d at 1255. Error is harmless if it does not affect the substantial rights of

the defendant. Id. at 1258. The improper admission of evidence is harmless error when

the conviction is supported by substantial independent evidence of guilt sufficient to satisfy

the reviewing court that there is no substantial likelihood that the questioned evidence

                                              7
contributed to the conviction. Ware v. State, 816 N.E.2d 1167, 1175 (Ind. Ct. App. 2004)

(citing Hernandez v. State, 785 N.E.2d 294, 300 (Ind. Ct. App. 2003), trans. denied).

       Here, the State presented substantial independent evidence of Driscoll’s guilt. The

record shows that a significant amount of items associated with the manufacture of

methamphetamine were discovered in Driscoll’s work station, including a large black box

containing manufacturing paraphernalia, funnels, a one-gallon container of Coleman fuel

and other organic solvents, a one-gallon tank garden sprayer, tubing, Kosher salt, two

containers of Liquid Fire sulfuric acid, coffee filters, a high wattage light, two glass jars

containing liquid, an APR mask, plastic baggies, tools commonly used to strip lithium

batteries, and an HCL generator. Detective Stewart testified that, through his training and

experience, he recognized these things as items commonly seen in a manufacturing lab for

methamphetamine.       Tr. at 139.     Detective Stewart also described the process of

manufacturing methamphetamine and how each of the items discovered was important to

the manufacturing process. Id. at 131-33, 139-41, 144-45,152-59. Further, the surveillance

video recovered from Hoesli Diesel showed Driscoll entering and exiting the garage many

times, approaching Peaugh, and standing near the area where the methamphetamine was

being manufactured. This evidence was sufficient to support Driscoll’s conviction. We

therefore conclude that any error in the admission of evidence concerning the reaction

vessel was harmless as it did not affect Driscoll’s substantial rights.

                                  II. Sufficient Evidence

       Our standard of review for sufficiency claims is well-settled. When we review a

claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility

                                              8
of the witnesses. Parahams v. State, 908 N.E.2d 689, 691 (Ind. Ct. App. 2009) (citing

Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003)). We look only to the probative evidence

supporting the judgment and the reasonable inferences therein to determine whether a

reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt.

Id. If there is substantial evidence of probative value to support the conviction, it will not

be set aside. Id. It is the function of the trier of fact to resolve conflicts of testimony and

to determine the weight of the evidence and the credibility of the witnesses. Yowler v.

State, 894 N.E.2d 1000, 1002 (Ind. Ct. App. 2008).

       Driscoll argues that insufficient evidence was presented to support his conviction

for dealing in methamphetamine as a Class B felony. He specifically contends that the

State failed to prove the “methamphetamine” element of the crime because no

methamphetamine was found except for on Peaugh’s person and that the lab had not been

“smoked off” so it could not have produced methamphetamine at the time of its discovery.

Driscoll therefore asserts that, because the final product of methamphetamine was not

found, insufficient evidence was presented to find him guilty.

       In order to convict Driscoll of dealing in methamphetamine as a Class B felony, the

State was required to prove that he knowingly or intentionally manufactured

methamphetamine, pure or adulterated.             Ind. Code § 35-48-4-1.1(a).       The term

“manufacture” is defined 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

                                              9
      labeling or relabeling of its container.

Ind. Code § 35-48-1-18.

      The evidence presented showed that many different items commonly used in the

manufacture of methamphetamine were discovered in Driscoll’s work space at Hoesli

Diesel, including many of the chemicals used in the process and several bottles of liquid.

Detective Stewart described how each of the items was used in the process of

manufacturing methamphetamine and that the methamphetamine lab found in Driscoll’s

work station was in the process of manufacturing and not a completed lab. The surveillance

video also showed Driscoll present in the area of the lab while the methamphetamine was

being manufactured. The statute does not state that the process must be completed or that

there must actually be a final product before it applies. Bush v. State, 772 N.E.2d 1020,

1023 (Ind. Ct. App. 2002), trans. denied. This court has previously upheld convictions for

dealing in methamphetamine where no finished product was found. See Robertson v. State,

877 N.E.2d 507, 516 (Ind. Ct. App. 2007) (affirming defendant’s dealing in

methamphetamine conviction where several items involved in the manufacture of

methamphetamine were found but no finished product); Bush v. State, 772 N.E.2d at 1023

(upholding conviction for dealing in methamphetamine when no finished product was

found, but there was evidence that defendant was producing, preparing, and processing

methamphetamine). We therefore conclude that sufficient evidence was presented to

support Driscoll’s conviction for dealing in methamphetamine as a Class B felony.

      Affirmed.

ROBB, C.J., and RILEY, J., concur.

                                             10
