MEMORANDUM DECISION
                                                                   Jun 02 2015, 9:10 am
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
Jeremy K. Nix                                             Gregory F. Zoeller
Huntington, Indiana                                       Attorney General of Indiana
                                                          Eric P. Babbs
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Ricci Dale Davis, Jr.,                                    June 2, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          35A02-1411-CR-804
        v.                                                Appeal from the Huntington
                                                          Superior Court.
State of Indiana,                                         The Honorable Jeffrey R.
                                                          Heffelfinger, Judge.
Appellee-Plaintiff.
                                                          Cause No. 35D01-1405-FA-128




Riley, Judge




Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015      Page 1 of 19
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Ricci Dale Davis, Jr. (Davis), appeals his conviction for

      dealing in methamphetamine within 1,000 feet of a youth program center, a

      Class A felony, Ind. Code § 35-48-4-1.1(a)(1)(A),(b)(3)(B)(iv) (2013).


[2]   We affirm.


                                                    ISSUES

[3]   Davis raises three issues on appeal, which we restate as follows:

      (1) Whether the trial court abused its discretion by failing to instruct the jury on

      lesser-included offenses of dealing in methamphetamine;

      (2) Whether the trial court abused its discretion by excluding evidence regarding

      the accuracy of the State’s measurement of distance between Davis’ house and

      two youth program centers; and

      (3) Whether Davis’ sentence is inappropriate in light of the nature of the offense

      and his character.


                           FACTS AND PROCEDURAL HISTORY

[4]   Shortly before 11:00 p.m. on May 19, 2014, a man called the Huntington

      County Sheriff’s Department on its non-emergency line and reported that he

      had a warrant and “was strung out on meth and to come get him and take it all

      out of his house.” (Tr. p. 99). In response to the call, the Sheriff’s Department

      dispatched the Huntington Police Department to 533 East Franklin Street,


      Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015   Page 2 of 19
      Huntington, Indiana, upon verification that the occupant thereof, Davis, had an

      active warrant.


[5]   When the police officers arrived at the residence and were positioning

      themselves around the property, Greggory Fisher (Fisher) emerged from the

      house. Detective Captain (now Chief) Chad Hacker (Chief Hacker) intercepted

      him, and Fisher confirmed that Davis was present and indicated that

      methamphetamine was being manufactured inside the house. The possibility of

      an active methamphetamine lab necessitated special protocol for searching and

      evacuating the residence. The officers knocked on the front door, and Joshua

      Dyer (Dyer) and Davis’ wife, Melinda Beougher (Beougher), came outside to

      speak with the officers. They advised that two young children were asleep in

      the living room, so the officers permitted Dyer to return to the house to retrieve

      them. During this time, Davis’ roommate, Rachelle Lesh (Lesh), and Vic

      Bowling attempted to exit the house through the back door and were corralled

      by the police for questioning. Once the first floor had been cleared, the officers

      allowed Beougher, at her request, to go back inside to summon Davis from the

      second floor.


[6]   Fifteen minutes after the police had first knocked on the door, Davis came

      downstairs, along with Thomas Hale (Hale) and Amanda (Casto). The officers

      escorted him outside, placed him in handcuffs, and administered his Miranda

      warnings. Davis indicated that he and Hale had been manufacturing

      methamphetamine on the second floor of the house. Davis further stated that

      when they heard the officers knocking on the door, Hale began hiding the

      Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015   Page 3 of 19
      supplies. Thus, Davis offered to accompany the officers inside to show them

      where everything was. For safety reasons, the officers would not allow Davis

      back into the house, but upon questioning as to whether there was an active lab

      that could pose any danger to the officers, Davis assured them that everything

      was safe.


[7]   As the officers climbed the staircase, they detected the “very distinct,”

      “overwhelming chemical” odor associated with manufacturing

      methamphetamine. (Tr. pp. 247, 262). The odor was most potent in the

      upstairs bathroom, emanating from the toilet and the sink in particular. Once

      they confirmed that there was nobody else in the house, the officers went back

      outside to retrieve their protective gear. After obtaining consent to search the

      home from the landlord, several officers trained in dismantling

      methamphetamine labs entered the house to process the scene.


[8]   No active methamphetamine lab was discovered, nor did the police officers

      recover any finished methamphetamine product. However, spread throughout

      nearly every room of the house, the officers found evidence of all of the

      ingredients and other equipment necessary to manufacture methamphetamine,

      including: numerous empty boxes and blister packs that had contained

      pseudoephedrine pills; empty boxes and the water bladders from cold

      compresses and the ammonium nitrate that had been extracted therefrom;

      lithium batteries and empty battery packages; salt; several bottles of drain

      cleaner (lye); Liquid Fire (sulfuric acid); three empty one-gallon containers of

      Coleman fuel (an organic solvent); coffee filters; plastic tubing; funnels; Ziploc

      Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015   Page 4 of 19
       bags; side cutters (for stripping the lithium out of the batteries); gas masks; and

       latex gloves. The search also revealed a plastic bag containing a liquid

       substance; a bottle that had been used as a “one-pot” (first stage of

       methamphetamine manufacturing); at least six bottles that had been used as

       hydrochloric gas (HCL) generators (second stage of methamphetamine

       manufacturing), one of which was located on the upstairs toilet lid; a cast iron

       skillet coated in white powder; a pill crusher; several loose syringes; and

       “partial directions on a couple steps of manufacturing methamphetamine.” (Tr.

       pp. 206, 211). Testing on the liquid substance indicated the presence of

       methamphetamine, but the sample was too diluted to run a confirmatory test.


[9]    On May 20, 2014, the State filed an Information, charging Davis with a Class A

       felony for dealing methamphetamine within 1,000 feet of a youth program

       center. I.C. § 35-48-4-1.1(b)(3)(B)(iv) (2013).1 On October 1 through October

       3, 2014, the trial court conducted a jury trial. At the close of the evidence, the

       jury returned a guilty verdict. On October 28, 2014, the trial court held a

       sentencing hearing. After entering a judgment of conviction on the Class A

       felony, the trial court imposed a fifty-year sentence, fully executed in the

       Indiana Department of Correction (DOC).


[10]   Davis now appeals. Additional facts will be provided as necessary.




       1
         The evidence established that Davis’ house was 970 feet from the Trinity United Methodist Church, which
       housed a preschool and other youth programs, and 940 feet from the Boys & Girls Club of Huntington
       County.

       Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015          Page 5 of 19
                                   DISCUSSION AND DECISION

                                                I. Jury Instruction

[11]   Davis first claims that the trial court erred by refusing to tender his proposed

       instruction on lesser-included offenses to the jury. “The manner of instructing a

       jury is left to the sound discretion of the trial court.” Albores v. State, 987 N.E.2d

       98, 99 (Ind. Ct. App. 2013), trans. denied. A trial court’s decision to give or

       refusal to give a jury instruction is subject to review only for an abuse of

       discretion. Id.


[12]   In this case, Davis tendered a proposed instruction which informed the jury that

       if it found him “not guilty of the charged offense then you may consider

       whether the Accused is guilty of the included offenses.” (Appellant’s App. p.

       44). Specifically, the instruction identified possession of precursors with intent

       to manufacture a controlled substance, maintaining a common nuisance, and

       possession of methamphetamine as lesser-included offenses of dealing in

       methamphetamine. Our supreme court has developed a three-part analysis that

       the trial court must engage in when determining whether to include a jury

       instruction on a lesser-included offense. See Wright v. State, 658 N.E.2d 563,

       566 (Ind. 1995).


[13]   First, the trial court must

               compare the statute defining the crime charged with the statute
               defining the alleged lesser included offense. If
                   (a) the alleged lesser included offense may be established by “proof
               of the same material elements or less than all the material elements”
               defining the crime charged, or

       Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015   Page 6 of 19
                  (b) the only feature distinguishing the alleged lesser included offense
               from the crime charged is that a lesser culpability is required to
               establish the commission of the lesser offense,
               then the alleged lesser included offense is inherently included in the
               crime charged.
       Id. (internal citations and footnote omitted). If an offense is inherently included

       in the charged offense, the trial court should proceed directly to the third step of

       the analysis. Id. at 566-57.


[14]   Second, if the first prong indicates that the alleged lesser-included offense is not

       inherently included in the charged offense, then the trial court

               must compare the statute defining the alleged lesser included offense
               with the charging instrument in the case. If the charging instrument
               alleges that the means used to commit the crime charged include all of
               the elements of the alleged lesser included offense, then the alleged
               lesser included offense is factually included in the crime charged, and
               the trial court should proceed to step three below.
       Id. at 567 (internal citations omitted). If the alleged lesser offense is neither

       inherently nor factually included in the charged crime, the trial court need not

       give the requested lesser-included offense instruction. Id.


[15]   The third and final step of the analysis provides that

               if a trial court has determined that an alleged lesser included offense is
               either inherently or factually included in the crime charged, it must look
               at the evidence presented in the case by both parties. If there is a
               serious evidentiary dispute about the element or elements
               distinguishing the greater from the lesser offense and if, in view of this
               dispute, a jury could conclude that the lesser offense was committed
               but not the greater, then it is reversible error for a trial court not to give
               an instruction, when requested, on the inherently or factually included
               lesser offense. If the evidence does not so support the giving of a


       Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015   Page 7 of 19
               requested instruction on an inherently or factually included lesser
               offense, then a trial court should not give the requested instruction.
       Id. (internal citation and footnote omitted).


[16]   On appeal, Davis concedes that possession of methamphetamine is neither

       inherently nor factually included in the crime of dealing in methamphetamine.

       Accordingly, we will address the other alleged lesser-included offenses in turn.


                          A. Possession of Precursors with Intent to Manufacture

[17]   Davis’ tendered final instruction stated, in part, that

               [t]he crime of Possession of Chemical Reagents or Precursors with
               Intent to Manufacture Controlled Substances is included in the
               charged crime of Dealing in Methamphetamine. . . . If the State did
               prove each of the elements of the crime of Possession of Chemical
               Reagents or Precursors with Intent to Manufacture Controlled
               Substances beyond a reasonable doubt, you may find the accused
               guilty of Possession of Chemical Reagents or Precursors with Intent to
               Manufacture Controlled Substances, a Class D felony.
       (Appellant’s App. pp. 44-45). Davis now contends that possession of precursors

       “was necessarily an included offense of the actual manufacture of

       methamphetamine.” (Appellant’s Br. p. 11).


[18]   According to the test set forth in Wright, we must first compare the two statutes

       to determine whether possession of precursors is an inherently lesser-included

       offense of dealing in methamphetamine. A person who knowingly or

       intentionally manufactures methamphetamine, pure or adulterated, within

       1,000 feet of a youth program center commits dealing in methamphetamine as a

       Class A felony. I.C. § 35-48-4-1.1(a)(1)(A),(b)(3)(B)(iv) (2013). On the other

       hand, “[a] person who possesses two (2) or more chemical reagents or
       Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015   Page 8 of 19
       precursors with the intent to manufacture a controlled substance commits a

       Class D felony.” I.C. § 35-48-4-14.5(e) (2013). This offense is elevated to a

       Class C felony if the person who possessed these precursors with an intent to

       manufacture did so within 1,000 feet of a youth program center. I.C. § 35-48-4-

       14.5(f)(2)(D) (2013). This court has previously determined “that possession of

       precursors with intent to manufacture meth is a lesser-included offense of

       manufacturing meth.” Fancil v. State, 966 N.E.2d 700, 709 (Ind. Ct. App.

       2012), trans. denied. The only issue left to determine is whether there was a

       serious evidentiary dispute in the distinguishing element from which the jury

       could conclude that the lesser offense was committed but not the greater. See id.


[19]   It is well settled that “one may be guilty of possessing chemical precursors with

       intent to manufacture without actually beginning the manufacturing process,

       whereas the manufacturing process must, at the very least, have been started by

       a defendant in order to be found guilty of manufacturing methamphetamine.”

       Id. In this case, the undisputed evidence establishes that there was “an

       overwhelming chemical smell” emanating from the second floor of the house,

       which is associated with cooking methamphetamine. (Tr. p. 262). Davis and

       Hale had approximately fifteen minutes to hide and discard evidence while the

       police officers cleared the rest of the house, and an HCL generator was found in

       the upstairs bathroom where the odor was the strongest. In his initial

       conversation with Chief Hacker, Davis stated, “This was going to be the last

       time I was going to do this, Hacker.” (Tr. p. 138). Later that night, during his

       recorded police interview, Davis explained that people would bring


       Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015   Page 9 of 19
       pseudoephedrine and other ingredients to the house in exchange for

       methamphetamine. Although Davis changed his story several times during his

       conversations with the police, the jury heard him admit that he had, at the very

       least, assisted both Hale and his former roommate—Donald Parker (Parker)—

       to manufacture methamphetamine at 533 East Franklin Street between January

       1 and May 20, 2014.


[20]   Furthermore, the evidence revealed that Davis and Parker cooked

       methamphetamine together in order to pay the rent and other bills. Parker’s

       wife, Lesh, explained that she frequently purchased pseudoephedrine and other

       supplies because Davis and Parker were cooking methamphetamine “[a]lmost

       daily.” (Tr. p. 341). In fact, Lesh specified that Davis had been manufacturing

       methamphetamine from 10:00 a.m. to 4:00 p.m. on the date of the officers’

       search. Additionally, Fisher testified that after Parker was arrested in April of

       2014, Davis continued to cook methamphetamine. Fisher observed Davis

       shaking the bottle and could smell the fumes of the cooking process. Casto

       testified that she would give Davis pseudoephedrine pills in exchange for

       methamphetamine and that she had witnessed him measuring ingredients,

       crushing pills, and stripping the lithium out of batteries. In light of all this

       evidence, we find that there was no serious evidentiary dispute as to whether

       Davis actually manufactured methamphetamine during the relevant time

       period. Because a jury could not reasonably have concluded that Davis simply

       possessed the precursors but had not begun the manufacturing process, we




       Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015   Page 10 of 19
       conclude that the trial court properly exercised its discretion in declining to give

       Davis’ proffered jury instruction.


                                    B. Maintaining a Common Nuisance

[21]   Davis’ proposed jury instruction also stated:

               The crime of Maintaining a Common Nuisance is also included in the
               charged crime of Dealing in Methamphetamine. . . . If the State did
               prove each of the elements of the crime of Maintaining a Common
               Nuisance beyond a reasonable doubt, you may find the accused guilty
               of Maintaining a Common Nuisance, a Class D felony.
       (Appellant’s App. pp. 45-46). To support a conviction of maintaining a

       common nuisance, the State must establish that a person

               knowingly or intentionally maintains a building, structure, vehicle, or
               other place that is used one (1) or more times:
               (1) by persons to unlawfully use controlled substances; or
               (2) for unlawfully:
                  (A) manufacturing;
                  (B) keeping;
                  (C) offering for sale;
                  (D) selling;
                  (E) delivering; or
                  (F) financing the delivery of;
               controlled substances, or items of drug paraphernalia.
       I.C. § 35-48-4-13(b) (2013). Davis concedes that maintaining a common

       nuisance is not an inherently lesser-included offense because maintaining a

       building, structure, vehicle or other place is not an element of dealing in

       methamphetamine. Instead, he argues that maintaining a common nuisance is

       factually included in the crime of dealing methamphetamine.




       Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015   Page 11 of 19
[22]   Under the Wright test, we must determine whether the charging instrument

       alleges that the means used to commit dealing in methamphetamine include all

       of the elements of maintaining a common nuisance. In the Information, the

       State charged that between January 1 and May 20, 2014, Davis “knowingly

       manufactured methamphetamine, pure or adulterated, and [Davis]

       manufactured methamphetamine within one thousand (1,000) feet of a youth

       program center.” (Appellant’s App. p. 12). The Information does not charge

       that Davis maintained a building, structure, vehicle, or other place to facilitate

       the manufacture of methamphetamine. See Sledge v. State, 677 N.E.2d 82, 86

       (Ind. Ct. App. 1997) (determining that maintaining a common nuisance was

       not a factually lesser-included offense of dealing in cocaine). Thus, the State

       was not required to prove that Davis maintained the house at 533 East Franklin

       Street. Rather, it was sufficient for the State’s burden of proof to simply

       establish that Davis manufactured methamphetamine within 1,000 feet of a

       youth program center. We find that—under the facts of this particular case—

       maintaining a common nuisance is not factually included in the crime of

       dealing in methamphetamine; thus, the trial court properly declined to give this

       instruction.


                                            II. Exclusion of Evidence

[23]   Davis next claims that the trial court abused its discretion by excluding

       evidence that purported to challenge the accuracy of the State’s measurements

       between his house and two youth program centers. It is well established that a

       trial court has broad discretion in the admission or exclusion of evidence, and


       Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015   Page 12 of 19
       its rulings are subject to review only for an abuse of that discretion. Charley v.

       State, 651 N.E.2d 300, 302 (Ind. Ct. App. 1995). It is an abuse of discretion if

       the trial court’s decision is clearly against the logic and effect of the facts and

       circumstances before it, or if the trial court misinterprets the law. Keller v. State,

       25 N.E.3d 807, 813 (Ind. Ct. App. 2015). Any error in the trial court’s

       exclusion of evidence will be disregarded as harmless error unless it affects the

       substantial rights of a party. Barnhart v. State, 15 N.E.3d 138, 143 (Ind. Ct.

       App. 2014).


[24]   The State charged Davis with a Class A felony by alleging that he

       manufactured methamphetamine within 1,000 feet of a youth program center.

       See I.C. § 35-48-4-1.1(a)(1)(A),(b)(3)(B)(iv) (2013). At trial, the State introduced

       evidence demonstrating that Davis’ house was located 970 feet from Trinity

       United Methodist Church and 940 feet from the Boys & Girls Club of

       Huntington County. These measurements were determined by Huntington

       County’s Geographic Information System (GIS) technician, Dathen Strine

       (Technician Strine).


[25]   Technician Strine testified that his job is to maintain GIS data for Huntington

       County and to provide updated information for inclusion on the Beacon

       website. The Beacon website, which is maintained by a third party, is

       accessible to the public and contains “aerial information, parcel information,”

       and various other information gathered from county sources. (Tr. p. 475).

       Using aerial photography embedded with GPS data, Technician Strine is

       required to create maps that depict 1,000-foot buffers around certain structures

       Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015   Page 13 of 19
       as prescribed by statute—such as schools. Thus, any individual may access the

       Beacon website and view these maps to determine, for example, whether his

       house is located within the 1,000-foot range of a school, park, or youth program

       center. Upon request, Technician Strine is also able to pinpoint two specific

       locations and calculate the distance within a five-foot margin of error using

       ArcMap software.


[26]   Although Technician Strine used special software to calculate the requested

       distances from Davis’ house to the two youth program centers, he relied upon

       the same information that is contained on the Beacon website. As such, Davis

       sought to introduce the Terms and Conditions of the Beacon website as

       evidence that Technician Strine’s calculation could be based on inaccurate data

       points. The Terms and Conditions, which a public user must accept prior to

       accessing the Beacon website, states:

                                       IMPORTANT DISCLAIMER
               By using this site, I agree that I understand and am bound by the
               following conditions.

               General. The information on this Web Site was prepared from a
               Geographic Information System established by Huntington County for
               their internal purposes only, and was not designed or intended for
               general use by members of the public. Huntington County, its
               employees, agents and personnel, makes no representation or warranty
               as to its accuracy, and in particular, its accuracy as to labeling,
               dimensions, contours, property boundaries, or placement or location
               of any map features thereon; nor to the accuracy of any other
               information contained thereon.

               Disclaimer. Huntington County Digital Data is the property of
               Huntington County, Indiana © 2000 Huntington County, IN. All

       Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015   Page 14 of 19
               graphic data supplied by Huntington County has been derived from
               public records that are constantly undergoing change and is not
               warranted for content or accuracy. The county does not guarantee the
               positional or thematic accuracy of the data. The cartographic digital
               file server is not a legal representation of any of the features depicted,
               and Huntington County disclaims any assumption of the legal status
               they represent. Any implied warranties, including warranties of
               merchantability or fitness for a particular purpose, shall be expressly
               excluded. The data represents an actual reproduction of data
               contained in Huntington County’s computer files. This data may be
               incomplete or inaccurate, and is subject to modifications and changes.
               Therefore, Huntington County cannot be held liable for errors or
               omissions in the data. The recipient’s use and reliance upon such data
               is at the recipient’s risk. By using this data, the recipient agrees to
               protect, hold harmless and indemnify Huntington County and its
               employees and officers. This indemnity covers reasonable attorney
               fees and all court costs associated with the defense of Huntington
               County arising out of this disclaimer. The recipient may copy this
               data into computer memory or onto computer storage devices and
               prepare derivative works from it.
       (Defendant’s Exh. A). The State objected to the admission of the Terms and

       Conditions on grounds that it would be confusing to the jury because the

       accuracy of Technician Strine’s measurements—not the accuracy of a member

       of the public using the Beacon website to create a measurement—is the relevant

       inquiry. Following an offer of proof, the trial court excluded the exhibit from

       evidence because “[i]t is a disclaimer of liability . . . . It’s not a declaration as

       far as accuracy.” (Tr. p. 516).


[27]   Our court has previously determined that “because there is no complex

       scientific process necessary to obtain a measurement of distance as distance can

       be measured with a yard stick or even a tape measure,” the State need only

       “show that the measuring device was accurate and was operated correctly in


       Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015   Page 15 of 19
       order to allow the admission of the distance as evidence.” Charley, 651 N.E.2d

       at 303. Technician Strine testified that he used the aerial imagery and ArcMap

       software to calculate the distances, and that he relied upon his years of training

       and experience to pinpoint the correct locations. In addition, he explained to

       the jury that the company who provides the County with the aerial images

       warrants the accuracy of the GPS location of each pixel to within two and one-

       half feet. As such, Technician Strine testified that his distance measurements

       were correct within a five-foot margin of error, and the determination of

       accuracy is ultimately a question for the trier of fact. See id.


[28]   In general, evidence is admissible if it is relevant. Ind. Evidence Rule 402.

       Relevant evidence is that which “has any tendency to make a fact [of

       consequence] more or less probable than it would be without the evidence.”

       Evid. R. 401. Even if relevant, the trial court may nevertheless exclude

       evidence “if its probative value is substantially outweighed by a danger of one

       or more of the following: unfair prejudice, confusing the issues, misleading the

       jury, undue delay, or needlessly presenting cumulative evidence.” Evid. R. 403.

       Here, the Terms and Conditions do not apply to Technician Strine’s

       measurements because he is not a member of the general public accessing the

       Beacon website, nor did he even access the Beacon website to make his

       calculations. Furthermore, Technician Strine calculated the distances

       specifically for the purposes of Davis’ trial; these measurements are not

       available on the Beacon website. The aerial photography company warrants

       the accuracy of its data to the County—not to a general user of the Beacon


       Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015   Page 16 of 19
       website who accesses a copy of the aerial image. Similarly, a user who

       independently makes a calculation from the aerial images does not receive the

       warning about the five-foot margin of error because Technician Strine only

       makes that representation when he completes a requested calculation.

       Accordingly, we find that any relevancy in the Terms and Conditions as it

       purports to challenge the accuracy of the aerial imagery upon which Technician

       Strine relied is far outweighed by the likelihood that its admission would simply

       mislead the jury. Therefore, we cannot say that the trial court abused its

       discretion by excluding the Terms and Conditions from evidence.


                                        III. Appropriateness of Sentence

[29]   Lastly, Davis claims that his sentence is inappropriate. The trial court imposed

       the maximum sentence of fifty years for a Class A felony, to be fully executed in

       the DOC. I.C. § 35-50-2-4 (2013). Even where a trial court has imposed a

       sentence that is authorized by statute, our court, “after due consideration of the

       trial court’s decision,” may nevertheless revise the sentence if we find that it “is

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

       offender.” Ind. Appellate Rule 7(B). Whether we determine that a sentence is

       appropriate “turns on our sense of the culpability of the defendant, the severity

       of the crime, the damage done to others, and myriad other factors that come to

       light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). On

       review, we focus on the length of the aggregate sentence and how it is to be

       served. Id. Ultimately, our goal is “to attempt to leaven the outliers[] and

       identify some guiding principles for trial courts and those charged with


       Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015   Page 17 of 19
       improvement of the sentencing statutes, . . . not to achieve a perceived ‘correct’

       result in each case.” Id.


[30]   Looking first to the nature of the offense, we find that Davis was manufacturing

       methamphetamine every day for nearly five months in the home that he shared

       with his wife (i.e., Beougher), Beougher’s child, and Lesh. He relied upon his

       methamphetamine-addicted friends to supply him with ingredients in exchange

       for the finished product. Manufacturing methamphetamine is a notoriously

       dangerous activity. The combination of toxic chemicals is unsafe to breathe,

       and the volatile nature of the ingredients creates a serious risk of a massive

       explosion. Yet, Davis chose to manufacture methamphetamine on a daily basis

       notwithstanding the fact that he jeopardized numerous human lives each time

       he did so. At the time the police officers arrived to execute the arrest warrant,

       there were nine other people in the house, including Davis’ wife and two young

       children. The fact that the officers recovered two gas masks from the second

       floor of the house clearly indicates that Davis was aware of the dangers of

       inhaling the methamphetamine fumes, but his manufacturing process was

       seemingly undeterred by the two toddlers asleep in the living room. It is

       apparent that Davis’ priority was just to feed his own addiction and his friends’

       addictions without regard for the consequences.


[31]   As to his character, the record reveals that Davis began using illicit drugs at age

       fourteen, and was using methamphetamine by age twenty-one. Between the

       ages of nineteen and thirty-four, Davis accumulated a significant criminal

       history, including six felony and three misdemeanor convictions. His criminal

       Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015   Page 18 of 19
       resume includes convictions for burglary, theft, forgery, auto theft, possession

       of marijuana and methamphetamine, and obtaining a controlled substance by

       fraud or deceit. Thus, Davis’ prior incarcerations have clearly been insufficient

       to deter him from future criminal conduct. Moreover, Davis has demonstrated

       disrespect for the authority of the courts and has rejected the opportunity for

       rehabilitation—as evidenced by the fact that his probation was revoked on five

       separate occasions, and he failed to successfully complete a drug court program.

       At the time of the instant offense, Davis was on probation and had not even

       been released from the DOC for a year. Davis is the biological father of one

       child. Instead of striving to set a good example for his son and ensuring his

       ability to provide support and guidance for his son, Davis rejected prior

       opportunities for rehabilitation and chose to maintain his criminal lifestyle. We

       cannot say that his sentence is inappropriate.


                                               CONCLUSION

[32]   Based on the foregoing, we conclude that the trial court acted within its

       discretion in declining to give Davis’ proffered jury instruction on lesser-

       included offenses and in excluding the Beacon website’s Terms and Conditions

       from evidence. We further conclude that Davis’ sentence is appropriate in light

       of the nature of the offense and his character.


[33]   Affirmed.


[34]   Bailey, J. and Barnes, J. concur




       Court of Appeals of Indiana | Memorandum Decision | 35A02-1411-CR-804 | June 2, 2015   Page 19 of 19
