Andrew Wedge v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 3, 2015
• Docket: 82A01-1403-CR-143
• Status: Published

Opinion

MEMORANDUM DECISION Feb 03 2015, 9:31 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 ATTORNEY FOR APPELLEE Scott L. Barnhart Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana

Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Andrew Wedge, February 3, 2015 Appellant-Defendant, Court of Appeals Case No. 82A01-1403-CR-143 v. Appeal from the Vanderburgh Superior Court; The Honorable Kelli State of Indiana, E. Fink, Magistrate; 82C01-1304-FA-447 Appellee-Plaintiff.

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 82A01-1403-CR-143 | February 3, 2015 Page 1 of 8 [1] Andrew Wedge appeals his conviction of Class B felony manufacture of

methamphetamine. He presents two issues for our consideration:

[2] 1. Whether the trial court abused its discretion when it admitted evidence

regarding the contents of a storage unit used to manufacture methamphetamine;

and

[3] 2. Whether the State presented sufficient evidence to prove Wedge committed

Class B felony manufacture of methamphetamine.

[4] We affirm.

Facts and Procedural History [5] On April 19, 2014, officers executing an arrest warrant for Wedge discovered drug

paraphernalia used to ingest methamphetamine, $376.00 in cash, a digital scale

and multiple items used to make methamphetamine at the residence in which

Wedge was staying. Based on information provided by Wedge, the investigation

turned to two storage units Wedge rented. In one of those storage units, police

found items used to make methamphetamine and 135 one pot vessels which

contained the remnants of methamphetamine manufacture.

[6] Based thereon, the State charged Wedge with two counts of Class B felony dealing

in methamphetamine,1 one alleging Wedge dealt methamphetamine and the other

alleging Wedge manufactured methamphetamine; Class D felony possession of

1 Ind. Code § 35-48-4-1.1 (2012).

Court of Appeals of Indiana | Memorandum Decision 82A01-1403-CR-143 | February 3, 2015 Page 2 of 8 methamphetamine;2 Class A misdemeanor possession of paraphernalia; 3 and two

counts of Class D felony maintaining a common nuisance. 4 The jury found Wedge

guilty of all charges except for one dealing count.

Discussion and Decision 1. Admission of Evidence

[7] Wedge asserts the court abused its discretion by admitting photographs of the 135

one pot vessels used to manufacture methamphetamine. We typically review

admission of evidence for an abuse of discretion. Kindred v. State, 973 N.E.2d

1245, 1252 (Ind. Ct. App. 2012), trans. denied. Thus, we reverse only if the trial

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

before it. King v. State, 985 N.E.2d 755, 757 (Ind. Ct. App. 2013), trans. denied. We

will not reweigh evidence, and we will consider conflicting evidence in favor of the

trial court’s ruling. Id. However, we must also consider uncontested evidence

favorable to the defendant. Id.

[8] Error in the admission or exclusion of evidence is to be disregarded as harmless

unless it affects the substantial rights of a party. Id. The improper admission of

evidence is harmless when the conviction is supported by substantial independent

evidence of guilt that satisfies us that there is no substantial likelihood the

2 Ind. Code § 35-48-4-6.1(a) (2012). 3 Ind. Code § 35-48-4-8.3. 4 Ind. Code § 35-48-4-13(b) (2012).

Court of Appeals of Indiana | Memorandum Decision 82A01-1403-CR-143 | February 3, 2015 Page 3 of 8 questioned evidence contributed to the conviction. Mathis v. State, 859 N.E.2d

1275, 1280 (Ind. Ct. App. 2007).

[9] Wedge asserts the photographs should have been inadmissible because the State

did not keep all of the vessels in evidence storage. Under the Fourteenth

Amendment to the United States Constitution, and Article I, Section 12 of the

Indiana Constitution, a criminal defendant has the right to examine physical

evidence in the State’s possession. “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. When dealing with the destruction of evidence

involving hazardous chemicals and materials, tension arises between the practical

need for destruction and the prejudice to the substantial right of the defendant to

examine the physical evidence against him. Jones v. State, 957 N.E.2d 1033, 1037

(Ind. Ct. App. 2011).

[10] Ind. Code § 35-33-5-5(e) sets forth the requirements that must be satisfied prior to

the destruction of physical evidence of drug manufacturing:

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

Court of Appeals of Indiana | Memorandum Decision 82A01-1403-CR-143 | February 3, 2015 Page 4 of 8 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. (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. [11] The police recovered 135 vessels that contained remnants from methamphetamine

manufacture, such as “the ammonium nitrate and lye mixture along with the

binder from the pills, . . . spent lithium, . . . [and] water that was added to further

the chemical process.” (Tr. at 126.) An officer testified he could not store the 135

vessels in an evidence storage locker because they were “hazardous.” (Id.) He

took pictures of the scene and inventoried all items found at the scene, including

items used to make methamphetamine such as: “16 boxes of pseudophed[rine], 12

gallon contain[er]s of solvent, 24 quart containers of solvent, 4 containers of lye, 4

boxes of cold packs, 2 salt, 1 Liquid Fire, lithium batteries, and 7 empty packages

of batteries.” (Id. at 113.)

[12] We need not determine whether the State failed to comply with Indiana Code § 35-

33-5-5(e) because any possible error in the admission of the photographs was

harmless. The State presented substantial independent evidence Wedge

manufactured methamphetamine. In the storage locker, the police found multiple

items used to manufacture methamphetamine. At the residence where Wedge was

arrested, police found items used to manufacture methamphetamine such as: coffee

Court of Appeals of Indiana | Memorandum Decision 82A01-1403-CR-143 | February 3, 2015 Page 5 of 8 filters with methamphetamine in them, a container of camp fuel, eleven empty

boxes of pseudoephedrine and multiple empty pill blister packs, and a pH test kit.

This evidence was sufficient to prove Wedge manufactured methamphetamine,

and therefore any possible error in the admission of the photographs was harmless.

See Vanzyll v. State, 978 N.E.2d 511, 519 (Ind. Ct. App. 2012) (presence of multiple

items used in methamphetamine manufacture sufficient to prove Vanzyll

manufactured methamphetamine).

2. Sufficiency of the Evidence

[13] Wedge challenges only his conviction of Class B felony manufacturing

methamphetamine.

When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder’s role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court’s ruling. Appellate courts affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict. [14] Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (quotations, citation, and

footnote omitted) (emphasis in original). Wedge argues there was no physical

evidence he manufactured methamphetamine because the State presented only

photographic evidence of the one pot vessel manufacturing method. As noted

above, the presence of numerous precursors used in the manufacture of

Court of Appeals of Indiana | Memorandum Decision 82A01-1403-CR-143 | February 3, 2015 Page 6 of 8 methamphetamine – including “16 boxes of pseudophed[rine], 12 gallon

contain[er]s of solvent, 24 quart containers of solvent, 4 containers of lye, 4 boxes

of cold packs, 2 salt, 1 Liquid Fire, lithium batteries, and 7 empty packages of

batteries,” (Tr. at 113) – is sufficient to prove Wedge committed Class B felony

manufacture of methamphetamine. See Vanzyll v. State, 978 N.E.2d 511, 519 (Ind.

Ct. App. 2012) (presence of multiple items used in methamphetamine manufacture

sufficient to prove Vanzyll manufactured methamphetamine).5

Conclusion [15] Any error in the admission of the photographs of the 135 one pot vessels was

harmless, as there was substantial evidence independent of those photographs to

prove Wedge committed Class B felony manufacturing methamphetamine.

Additionally, the State presented sufficient evidence to prove Wedge committed

Class B felony manufacturing methamphetamine. Accordingly, we affirm.

[16] Affirmed.

5 In his brief, Wedge states he appeals “his convictions for [sic] dealing methamphetamine as a class B felony and maintaining a common nuisance as class D felonies [sic].” (Br. of Appellant at 2.) Wedge provides no argument regarding his convictions of Class D felony maintaining a common nuisance, and thus that portion of his argument is waived. See Matheney v. State, 688 N.E.2d 883, 907 (Ind. 1997) (failure to make a cogent argument results in waiver of that argument). Waiver notwithstanding, we hold the State presented sufficient evidence Wedge committed one count of Class D felony maintaining a common nuisance based on the evidence Wedge used the storage unit to manufacture methamphetamine and the other count of Class D felony maintaining a common nuisance based on the methamphetamine precursors such as pseudoephedrine packs and camping fuel found where Wedge was staying. See Ind. Code § 35-48-4-13(b) (2012) (a person who knowingly or intentionally maintains a building that is used one or more times for the manufacture of a controlled substance commits Class D felony maintaining a common nuisance).

Court of Appeals of Indiana | Memorandum Decision 82A01-1403-CR-143 | February 3, 2015 Page 7 of 8 Vaidik, C.J., and Friedlander, J., concur.

Court of Appeals of Indiana | Memorandum Decision 82A01-1403-CR-143 | February 3, 2015 Page 8 of 8