Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                             Jun 13 2013, 6:17 am
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:

DANIEL J. MOORE                                     GREGORY F. ZOELLER
Laszynski & Moore                                   Attorney General of Indiana
Lafayette, Indiana
                                                    ANDREW FALK
                                                    Deputy Attorney General


                               IN THE
                     COURT OF APPEALS OF INDIANA

RICHARD YOUNG,                                      )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 79A04-1206-CR-310
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                            The Honorable Thomas H. Busch, Judge
                                Cause No. 79D02-1108-FA-15


                                          June 13, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                     STATEMENT OF THE CASE

          Richard Young (“Young”) appeals his convictions and sentence for conspiracy to

commit dealing in              methamphetamine,        a Class A felony; 1   and   dealing in

methamphetamine (manufacturing), a Class A felony.2

          We affirm.

                                                 ISSUES

          1.      Whether the trial court properly denied Young’s motion to dismiss
                  pursuant to Indiana Rule of Criminal Procedure 4(B).

          2.      Whether the State presented sufficient evidence to sustain Young’s
                  conviction for possession of methamphetamine.

          3.      Whether Young’s sentence is inappropriate.

                              FACTS AND PROCEDURAL HISTORY

          On January 22, 2011, Young and one of his housemates, James Glaze (“Glaze”),

asked Young’s girlfriend, Angela Boorom (“Boorom”) to drive them in Young’s Chrysler

300 to several places in Tippecanoe County, Indiana. After a number of stops, Young

asked Boorom to drive him to a rural area. At a certain point, Young told her to stop, and

he walked out into a field, carrying nothing with him. After about fifteen minutes, Young

came back to the car carrying a Coleman thermos and a clear pitcher. Young got into the

car, and the occupants put the windows down due to the smell of anhydrous. Young told



1
    Ind. Code § 35-41-5-2; I.C. § 35-48-4-1.1.
2
    I.C. § 35-48-4-1.1

                                                   2
Boorom that they were going to “take [the containers] back to the residence to finish

cooking them off.” (Tr. 239, 243).

        Meanwhile, Indiana State Police Trooper Joseph Winters (“Trooper Winters”) was

driving North on Interstate 65 in Tippecanoe County when he noticed Young’s car sitting

northbound on County Road 500 East, parallel to the Interstate, with its lights off. As a

result, Trooper Winters exited onto a county road.

        As Trooper Winters headed west on a county road, he saw Young’s car coming

toward him at a reduced speed. When Trooper Winters passed the car, he noticed that its

windows were down despite a temperature of only eight degrees. Trooper Winters turned

around and attempted to catch up with the car, but Boorom accelerated away from him.

        Trooper Winters began to pursue the car and watched as the car ran at least two

stop signs. At one point, Trooper Winters’ view of the car was blocked by a hill, and at

this point Young threw the two containers out the window. As Trooper Winters began to

catch up to the car, Glaze jumped out of the car and began to run away. Trooper Winters

finally forced Boorom to pull over, and he directed her to get out of the car. Young, who

was sitting in the front passenger seat, gave Trooper Winters his Indiana identification

card.

        Trooper Winters gave Boorom a sobriety test then placed her in the custody of

another officer who took her to a Lafayette hospital for a blood draw. Trooper Winters

read Young his rights and then noticed that there were drain cleaner bottles, latex gloves,



                                            3
boxes of pseudoephedrine, and ephedrine in the car.         Trooper Winters then found

chemical resistant gloves.

      After finding these items, Trooper Winters suspected that he had found a

methamphetamine lab.         Accordingly, he arrested Young while Tippecanoe County

Sheriff’s Deputy Thomas Lehman (“Deputy Lehman”) retraced the route that Boorom

had taken in her flight from Trooper Winters. In the area where Trooper Winters had lost

sight of Young, Trooper Winters and Deputy Lehman found a clear plastic pitcher in the

middle of the road and a red Coleman thermos in a ditch. A chemical smell emanated

from the thermos, and the pitcher had a pink solution in the bottom of it. In the area,

Trooper Winters and Deputy Lehman found other items of drug paraphernalia, including

stripped lithium batteries, a box of pseudoephedrine, and a “foilie” (used to ingest

methamphetamine) with burn marks on it.

      Trooper Ronald Fisher (“Trooper Fisher”), a member of the Lafayette and Peru

Meth Lab Teams, arrived at the scene with a meth lab cleanup truck. He first examined

the Coleman thermos and confirmed that it contained anhydrous ammonia. He then

examined the pitcher, which he believed was the reaction vessel. The contents had

“sloshed” up on the side of the pitcher and had not yet settled back down. He confirmed

the presence of ammonia and, after performing an acid test he learned that the solution

was more base than acid, meaning that the solution was more toward the beginning of the

methamphetamine manufacturing process.          He then collected a small sample of the



                                            4
solution, leaving “at least ninety percent of the contents . . . still in the vessel,” taking just

the “small portion that our lab needs to test.” (Tr. 182).

       Trooper Fisher also field tested the solution, and the solution tested positive for

methamphetamine. From the positive methamphetamine test and the positive ammonia

test, Trooper Fisher determined that the solution’s contents had reacted and turned some

of the pseudoephedrine into methamphetamine. Trooper Fisher then packaged the rest of

the solution in the reactor vessel for transportation to be destroyed as hazardous material.

Trooper Winters submitted the sample of the solution to the Indiana State Police Lowell

Laboratory, where a forensic drug chemist subsequently determined that the solution

contained a mixture of methamphetamine and pseudoephedrine weighing 4.66 grams.

       Trooper Winters took Young to the State Police Post, read him his Miranda rights,

and asked him what he had been doing. After some dissimulation, Young told Trooper

Winters that the items found were a methamphetamine lab that he had stolen, and that he

was going to give it to someone else to finish the methamphetamine.

       Young then gave Trooper Winters permission to search his home. At the home,

Trooper Winters found, among other things, a bag of white powder, a syringe, a spoon

with residue, and extensive items of drug paraphernalia. The white powder field tested

positive for methamphetamine, and the police lab later determined that the powder was

2.29 grams of methamphetamine.

       Boorom testified that the home’s garage was used as a methamphetamine

laboratory where Young and Glaze cooked drugs between two to three times per week.

                                                5
Indeed, Young and Glaze cooked a batch of methamphetamine on the night before their

encounter with Trooper Winters. Boorom also testified that she had purchased many

grams of pseudoephedrine over an extensive amount of time and that Young used the

pseudoephedrine in making methamphetamine. Boorom further testified that Young

sometimes gave discounts or made trades with customers if they would provide

pseudoephedrine for future batches.

      On August 15, 2011, the State charged Young with the following counts:

conspiracy to commit dealing in methamphetamine; a Class A felony; dealing in

methamphetamine (manufacturing), a Class A felony; dealing in methamphetamine

(possession with intent to deliver), a Class A felony; possession of methamphetamine, a

Class B felony; possession of methamphetamine, a Class C felony; possession with intent

to manufacture, a Class D felony; maintaining a common nuisance, a Class D felony;

possession of paraphernalia, a Class A misdemeanor; and two counts of unlawful

purchase of pseudoephedrine, Class C misdemeanors. The State also filed an habitual

substance abuse offender enhancement. At his initial hearing on August 17, 2011, Young

requested a public defender, but the magistrate initially declined to appoint one. Young

then asked, “Is this when I tell you that I want a fast and speedy trial?” (Supp. Tr. 15).

The magistrate responded that Young would need to make a written request before the

judge. Young said that he did not think he could hire an attorney, and the magistrate told

him that he could make the request himself and that “we’ll note that in the record.”

(Supp. Tr. 15). The magistrate set a trial date of November 26, 2011. The magistrate

                                            6
then decided to appoint a public defender for Young. Before setting Young’s bond, the

magistrate told Young to tell his public defender that he wanted to file a motion for

speedy trial. In his order on the initial hearing, the magistrate noted, “The Defendant

orally requests fast and speedy trial and the court directs the defendant to confer with

attorney and file written request with court.” (App. 28).

       On April 5, 2012, Young’s public defender filed a motion to dismiss pursuant to

Indiana Rule of Criminal Procedure 4(B), explaining that (1) the case was set for April

10, 2012; (2) Young had made an oral request for a speedy trial at the time of the initial

hearing and prior to the public defender’s appointment; (3) the public defender had not

filed a speedy trial request and acquiesced in the setting of the trial date; and (4) Young

had requested that the public defender file the motion. (App. 31). The trial court denied

the motion.

       A jury found Young guilty on all counts and he was subsequently determined to be

an habitual substance abuse offender. At the sentencing hearing, the trial court merged

the remaining counts into the Class A felony conspiracy to commit dealing in

methamphetamine and dealing in methamphetamine (manufacturing) counts. The trial

court imposed concurrent thirty-five year sentences and enhanced the dealing in

methamphetamine conviction by eight years due to the habitual substance abuse

determination. The trial court suspended three years to probation.

                                DISCUSSION AND DECISION

1.     Indiana Rule of Criminal Procedure 4(B)

                                             7
       Young contends that the trial court erred in denying his April 5, 2012 motion to

dismiss pursuant to Indiana Rule of Criminal Procedure 4(B). We review de novo a trial

court’s denial of a motion to discharge a defendant. Fletcher v. State, 959 N.E.2d 922,

924 (Ind. Ct. App. 2012). “‘The Sixth Amendment to the United States Constitution and

Article 1, section 12 of the Indiana Constitution guarantee the right to a speedy trial. The

provisions of Ind. Criminal Rule 4 implement these protections.’” Id. (quoting Wilkins v.

State, 901 N.E.2d 535, 537 (Ind. Ct. App. 2009) (citing Clark v. State, 659 N.E.2d 548,

551 (Ind. 1995)), trans. denied. The pertinent part of the rule provides:

       If any defendant held in jail on an indictment or an affidavit shall move for
       an early trial, he shall be discharged if not brought to trial within seventy
       (70) calendar days from the date of such motion, except where a
       continuance within said period is had on his motion, or the delay is
       otherwise caused by his act, or where there was not sufficient time to try
       him during such seventy (70) calendar days because of congestion of the
       court calendar.

“The purpose served by Crim. R. 4(B) is to prevent a defendant from being detained in

jail from more than 70 days after requesting an early trial.” Fletcher, 959 N.E.2d at 925

(quoting Williams v. State, 631 N.E.2d 485, 486 (Ind. 1994)).

       “The onus is on the State, not the defendant, to expedite prosecution.”           Id.

(quoting Jackson v. State, 663 N.E.2d 766, 769 (Ind. 1996)). However, a movant for an

early trial must maintain a position which is reasonably consistent with the request that he

has made. Id. Accordingly, the defendant must object at the earliest opportunity when

his trial date is scheduled beyond the time limits prescribed by the rule. Id. “A defendant

who permits the court, without objection, to set a trial date outside the 70-day limit is

                                             8
considered to have waived any speedy trial request.” Id. (quoting Stephenson v. State,

742 N.E.2d 463, 488 (Ind. 2001), cert. denied, 554 U.S. 1105 (2002)). A defendant’s

obligation to call to the trial court’s attention a trial date which has been set outside the

time frame allowed by Indiana Rule of Criminal Procedure 4(B) is recognized because

the purpose of the rule is to assure early trials, not discharge defendants. Townsend v.

State, 673 N.E.2d 503, 506 (Ind. Ct. App. 1996).

       Here, Young did not object when the magistrate set his trial date outside the

seventy-day window. In addition, the trial court found that Young failed to object to

repeated discussions about continuances or trial settings in the case. Young also took

actions inconsistent with seeking a speedy trial, such as requesting to work with the Drug

Task Force. Accordingly, Young waived his claim that the trial court violated his right to

a speedy trial. See Wilkins v. State, 901 N.E.2d 535, 537 (Ind. Ct. App. 2009), trans.

denied. (holding that Wilkins “acquiesced to the trial setting outside of the seventy-day

requirements and thereby abandoned his request for an early trial” where he failed to

object to a trial set beyond the seventy-day period), trans. denied.

2.     Sufficiency of the Evidence

       Indiana Code § 35-48-4-1.1(a)3 provides that a person who knowingly or

intentionally manufactures methamphetamine, pure or adulterated, commits Class B

felony dealing in methamphetamine. The offense is a Class A felony if the State proves

that the amount of the drug involved weighs three (3) grams or more. I.C. § 35-48-4-1-
3
 The statute has been amended, but the amendments do not apply in this case. See 2013 Ind. Legis. Serv.
P.L. 158-2013.
                                                  9
1(b). Young contends that the State presented insufficient evidence to support his Class

A felony dealing in methamphetamine (manufacturing) conviction because it failed to

show that the amount of the drug involved weighed three (3) grams or more.

       Our standard of review for sufficiency claims is well settled.           In reviewing

sufficiency of the evidence claims, this court does not reweigh the evidence or assess the

credibility of witnesses. Davis v. State, 791 N.E.2d 266, 269 (Ind. Ct. App. 2003), trans.

denied. Not only must the fact-finder determine whom to believe but also what portions

of conflicting testimony to believe. In re J.L.T., 712 N.E.2d 7, 11 (Ind. Ct. App. 1999),

trans. denied. We consider only the evidence most favorable to the judgment, together

with all reasonable inferences drawn therefrom. Davis, 791 N.E.2d at 269-70. The

conviction will be affirmed if there is substantial evidence of probative value to support

the conclusion of the trier of fact. Id. at 270. Reversal is appropriate “only when

reasonable persons would not be able to form inferences as to each material element of

the offense.” Alvies v. State, 905 N.E.2d 57, 61 Ind. Ct. App. 2009).

       Here, the State presented evidence that Trooper Fisher examined the pitcher,

which he determined was the reaction vessel. Trooper Fisher testified that he took only a

“small portion [of the solution in the vessel] that our lab needs to test” and that he left “at

least ninety percent of the contents . . . still in the vessel.” (Tr. 182). Trooper Fisher also

testified that his field test of the solution revealed the presence of methamphetamine and

anhydrous. (Tr. 185). From the positive methamphetamine and anhydrous tests, Trooper

Fisher could determine that the contents had reacted and had “taken” the

                                              10
pseudoephedrine into methamphetamine. Id. Trooper Winters submitted the solution

sample to the State Police Laboratory, and the forensic drug chemist determined that the

solution contained a combination of methamphetamine and pseudoephedrine weighing

4.66 grams.

        The term “manufacture” includes, among other things, production, preparation or

processing of a controlled substance. I.C. § 35-48-1-18. The term does not require “that

the process be completed or that there actually be a final product before the statute

applies.” Traylor v. State, 817 N.E.2d 611, 619 (In. Ct. App. 2004) (citing Bush v. State,

772 N.E.2d 100, 1022 (In. Ct. App. 2002), trans. denied. The total weight of the

substance, and not merely its pure content, is to be considered in determining whether the

weight element of the charged offense has been met. Hundley v. State, 951 N.E.2d 575,

583 (Ind. Ct. App. 2011), trans. denied.

      The solution provided by Trooper Fisher was in the process of changing from an

adulterated to a pure form of methamphetamine. The forensic chemist’s test established

that the total weight of the solution was 4.66 grams, a sufficient amount to prove that

Young committed a Class A felony. In addition, Trooper Fisher estimated that the

solution sample provided to the State Police Lab was only 10 percent of the total amount

of the solution contained in the reaction vessel. Even if Trooper Fisher drastically

misjudged the percentage of the sample, the jury could have inferred that the weight of

the solution far exceeded three grams.



                                           11
         Young points to Judge Vaidik’s concurring opinion in Harmon v. State, 971

N.E.2d 674, 682-685 (Ind. Ct. App. 2012), trans. denied, in support of his argument that

the State failed to prove that the solution contained at least three grams of

methamphetamine. First, we note that the concurring opinion referred to whether the

weight of methamphetamine under the statute includes both the solid methamphetamine

and any liquid ingredients that still remain in the partially cooked methamphetamine

batch. No liquid ingredients were measured in the instant case; indeed, the forensic drug

chemist testified that the lab would not have weighed any liquid ingredients if such were

present. Second, as we noted above, the weight of the total amount of solution far

exceeded three grams. Finally, we respectfully disagree with Judge Vaidik’s conclusions,

and we embrace the method of measurement described in the Hundley opinion over dicta

espoused in a concurring opinion.4 The State presented sufficient evidence to support its

claim that the weight of the adulterated methamphetamine was equal to or exceeded three

grams.     Accordingly, the State presented sufficient evidence to support Young’s

conviction of the Class A felony of dealing in methamphetamine (manufacturing).5

3.       Inappropriate Sentence



4
   Harmon was decided on the basis that the State completely failed to prove the weight of the
methamphetamine because its “string of inferences is simply too tenuous to satisfy its burden of proof
beyond a reasonable doubt with respect to the weight element of the Class A felony charge.” 971 N.E.2d
at 682.
5
 Young argues that the State failed to prove sufficient weight to support his conviction of conspiracy to
commit dealing in methamphetamine as a Class A felony. Our reasoning in the current issue vitiates
Young’s argument concerning his conspiracy conviction.

                                                   12
        Young contends that the sentence imposed by the trial court is inappropriate in

light of the nature of the offenses and his character. He argues that his actions were no

greater than those that meet the minimal elements of the offenses. He also argues that his

involvement was addiction based rather than profit based.

        The revision of a sentence is authorized by the Indiana Constitution through

Indiana Appellate Rule 7(B), which provides that we “may revise a sentence authorized

by statute if, after due consideration of the trial court’s decision, the Court finds that the

sentence is inappropriate in light of the nature of the offense and the character of the

offender.”6 In determining the appropriateness of a sentence, a court of review may

consider any factors appearing in the record. Schumann v. State, 900 N.E.2d 495, 497

(Ind. Ct. App. 2009). The “nature of the offense” portion of the appropriateness review

begins with the advisory sentence. Anglemyer, 868 N.E.2d at 491; Richardson v. State,

906 N.E.2d 241, 247 (Ind. Ct. App. 2009). The “character of the offender” portion of the

sentence review refers to general sentencing considerations and the relevant aggravating

and mitigating circumstances. Major v. State, 873 N.E.2d 1120, 1131 (Ind. Ct. App.

2007), trans. denied. A defendant bears the burden of persuading us that his sentence is

inappropriate. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008).

        Here, Young neglected to provide the pre-sentence report for our review. The pre-

sentence report is an invaluable part of the record for the review of a defendant’s criminal

6
 I.C. § 35-50-2-4 states that a person who commits a Class A felony “shall be imprisoned for a fixed term
of between twenty (20) and fifty (50) years, with the advisory sentence being thirty (30) years.”


                                                   13
history, and we note that the trial court made a number of references to the report in

assessing Young’s criminal history. Failure to provide the pre-sentence as part of the

appellate record results in waiver of the issue on appeal. Nasser v. State, 727 N.E.2d

1105, 1110 (Ind. Ct. App. 2000), trans. denied. Waiver notwithstanding, we observe that

the record supports the trial court’s decision.

       Regarding the nature of the conspiracy to commit dealing in methamphetamine

offense, the record indicates that Young was engaged in an extensive process of

manufacturing methamphetamine. In December 2010 and January 2011, Young cooked

methamphetamine two or three times a week.               He and Boorom avoided computer

detection and purchased large amounts of pseudoephedrine. Between December 14,

2010 and January 14, 2011, Young and Boorom made fourteen purchases of

pseudoephedrine,     totaling   28.08   grams.     Glaze     and     others    also   purchased

pseudoephedrine for Young’s methamphetamine manufacturing process. In addition,

Young bartered for boxes of pseudoephedrine from his methamphetamine customers.

Manufacturing methamphetamine and selling his product was Young’s sole source of

income.

       Additionally,    Young’s      conviction    for     dealing    in      methamphetamine

(manufacturing) occurred while he was attempting to grow his business by stealing

another person’s methamphetamine lab. He fled from Trooper Winters and attempted to

dispose of the evidence by throwing items out the car window. Furthermore, he initially



                                              14
lied to Trooper Winters about what he was doing on the night of his arrest. The nature of

the offenses does not convince us that the sentence is inappropriate.

       Regarding the character of the offender, the trial court stated that Young “has a

long history of criminal or delinquent behavior, including doing the same thing sending

him to prison in the first place and relating to his other charge.” (Tr. 414). At the time he

committed the instant offenses, Young was on probation after having been convicted of

possession of an illegal substance with intent to deliver. He was also on probation for

two other cases at the time he committed the instant offense. Furthermore, Young

violated jail rules by assaulting another prisoner while he was awaiting sentencing in this

matter. The trial court recognized both Young’s drug problem and his difficult childhood

but concluded that Young was “still responsible as an adult for [his] crimes and they are

serious ones.” (Tr. 415-16). The court also commented, “This is a pretty big cooking

operation . . . and you are the cook. Sometimes people say well, all I was doing was

buying drugs for my own use, but in this particular case the evidence is that you are the

center of this particular ring . . . .” (Tr. 416).

       The nature of the offenses and the character of the offender do not convince us

that the sentence imposed is inappropriate.

       Affirmed.

ROBB, C.J., and MAY, J., concur.




                                                15
