MEMORANDUM DECISION Jul 21 2015, 5:30 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 Jesse R. Poag Gregory F. Zoeller Newburgh, Indiana Attorney General of Indiana Eric P. Babbs Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert S. Kaufman, July 21, 2015
Appellant-Defendant, Court of Appeals Case No. 82A01-1411-CR-516 v. Appeal from the Vanderburgh Circuit Court. The Honorable Kelli E. Fink, State of Indiana, Magistrate. Appellee-Plaintiff. Cause No. 82C01-1310-FA-1069
Darden, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-516 | July 21, 2015 Page 1 of 15 Statement of the Case [1] Robert S. Kaufman appeals from his conviction after a jury trial of dealing in 1 methamphetamine as a Class A felony, challenging the sufficiency of the
evidence to support his conviction. We affirm in part, reverse in part and
remand with instructions.
Issues [2] Kaufman presents the following issues for our review:
I. Whether the State presented sufficient evidence that the Wood Creek Inn & Suites was a family housing complex at the time of the offense. II. Whether the State presented sufficient evidence that Kaufman had taken a substantial step toward production of methamphetamine.
Facts and Procedural History [3] On June 23, 2013, at approximately 5:29 p.m. Kaufman purchased 1.2 grams of
pseudoephedrine from a Walgreens Store located on Green River Road in
Evansville, Indiana. Later that same day, shortly before 11:00 p.m., Evansville
Police Department officers responded to a tip about a possible meth lab site.
They arrived at a railroad bridge near the Wood Creek Inn & Suites located just
west of Old U.S. Highway 41 where they discovered several items often
associated with the manufacture of methamphetamine. Those items were as
1 Ind. Code § 35-48-4-1.1 (2006).
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-516 | July 21, 2015 Page 2 of 15 follows: empty pseudoephedrine blister packs; a Walgreens receipt showing the
purchase of pseudoephedrine earlier that day; a box of ammonium nitrate cold
packs, one of which had been cut open and its contents removed; an empty can
of starting fluid, which was punctured on the bottom; a two-pound container of
lye; packaging for lithium batteries; remnants of stripped batteries; one intact
battery; at least one pair of pliers; a clear glass jar; a twenty ounce soda bottle;
and coffee filters.
[4] While officers were investigating the site, another officer observed Kaufman
walking south along Old U.S. Highway 41 and approaching the parking lot of
the Wood Creek Inn & Suites. Kaufman entered the parking lot where he
spoke with a woman. While Kaufman was speaking to the woman, the officer
approached him, and took him into custody, and he was later interviewed.
[5] During the interview, Detective Chris Goergen asked Kaufman to recount
where he had been throughout the day. According to Kaufman, he had
awakened at approximately 3 p.m., met a friend and had something to eat. At
approximately 4:00 p.m. he encountered some people in a green car. They
went to a Walmart, but none of them went inside. He stated that just prior to
being taken into custody, he had walked to a nearby Motel 6 and was walking
south toward the Wood Creek Inn & Suites when he encountered police
officers. Kaufman was not charged at that time.
[6] Officers continued their investigation into the suspected meth lab site. An
officer was able to recover a latent fingerprint from the packaging of the cold
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-516 | July 21, 2015 Page 3 of 15 packs found under the bridge, and the fingerprint was later identified as
Kaufman’s. The packaging also had two other fingerprints from unknown
individuals. Officers matched the Walgreens receipt found underneath the
bridge with video tape of Kaufman’s purchase of pseudoephedrine on June 23, 2 2013, and an NPLEx report of that purchase. There was no finished product
or evidence of methamphetamine found at the site.
[7] A warrant was issued for Kaufman’s arrest on September 30, 2013. The officer
who took Kaufman into custody on October 2, 2013, explained to Kaufman
that the arrest was for the incident near the Wood Creek Inn & Suites for
manufacturing methamphetamine. Kaufman stated that in his opinion, the
case should be charged as possession of precursors. At the conclusion of
Kaufman’s jury trial, the jury found Kaufman guilty of Class A felony dealing
in methamphetamine. The trial court sentenced Kaufman to thirty-four years
in the Department of Correction. Kaufman now appeals.
Discussion and Decision [8] Kaufman raises two challenges to the sufficiency of the evidence supporting his
conviction. First, he argues that there is insufficient evidence to establish that
the Wood Creek Inn & Suites was a family housing complex at the time of the
2 NPLEx is an acronym for the National Precursor Log Exchange. See Embrey v. State, 989 N.E.2d 1260, 1263 (Ind. Ct. App. 2013).
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-516 | July 21, 2015 Page 4 of 15 offense. He also challenges the sufficiency of the evidence that he took a
substantial step toward the manufacture of methamphetamine.
[9] The jury was instructed on the elements of the charged offense and the lesser-
included offenses of attempted dealing in methamphetamine as a Class A
felony, dealing in methamphetamine as a Class B felony, possession of
chemical reagents or precursors with the intent to manufacture a controlled
substance as a Class C felony, and possession of chemical reagents or
precursors with the intent to manufacture a controlled substance as a Class D
felony. The jury returned its verdict of guilty as to the charged offense.
[10] Our standard of review for claims challenging the sufficiency of the evidence is
well-settled. We do not reweigh the evidence or reassess the credibility of
witnesses in the course of our review. Boggs v. State, 928 N.E.2d 855, 864 (Ind.
Ct. App. 2010), trans. denied. We consider only the probative evidence and
reasonable inferences supporting the verdict and consider conflicting evidence
most favorably to the trial court’s ruling. Id. The conviction will be affirmed
unless no reasonable fact-finder could find the elements of the crime proven
beyond a reasonable doubt. Id. It is not necessary that the evidence presented
at trial overcome every reasonable hypothesis of innocence. Id. We will
conclude that the evidence is sufficient if an inference may reasonably be drawn
from it to support the verdict. Id.
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-516 | July 21, 2015 Page 5 of 15 I. Family Housing Complex [11] Kaufman argues that there is insufficient evidence in the record to establish that
Wood Creek Inn & Suites was a family housing complex at the time of the
offense. In order to convict Kaufman of dealing in methamphetamine as a
Class A felony, the State was required to prove beyond a reasonable doubt that
Kaufman knowingly or intentionally manufactured methamphetamine in, on,
or within one thousand feet of a family housing complex. Ind. Code § 35-48-4-
1.1(b)(3)(B)(iii). A family housing complex is defined in pertinent part as “a
building or series of buildings that contains at least twelve (12) dwelling units
that is operated as a hotel or motel (as described in IC 22-11-18-1).” Ind. Code
§ 35-31.5-2-127 (2012). Hotels and motels are defined in Indiana Code section
22-11-18-1 (2012) as “buildings or structures kept, maintained, used, advertised,
or held out to the public as inns or places where sleeping accommodations are
furnished for hire for transient guests.”
[12] David Huffine, the general manager of the Wood Creek Inn & Suites, testified
that it is “an extended stay hotel” that rents by the week and the month. Tr. p.
198. There are eighty-six rooms of which thirty-two are apartments. Huffine
stated that at the time of trial sixty-three units were rented and that of the
families staying there approximately twenty percent had children. On cross-
examination, Huffine testified that the Wood Creek Inn & Suites was not a
motel or a hotel, but was “extended stay.” Tr. p. 201.
[13] Linda Freeman, Chief Deputy of the Vanderburgh County Surveyor’s Office,
testified about a map she had produced showing what places and buildings Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-516 | July 21, 2015 Page 6 of 15 were within one thousand feet of what she described as “Wood Creek
Apartments.” Tr. p. 210. The bridge under which the suspected meth lab site
was located was within one thousand feet of Wood Creek Inn & Suites.
[14] In Richard v. State, 19 N.E.3d 284 (Ind. Ct. App. 2014), we considered this issue
with respect to a conviction for dealing in cocaine within one thousand feet of a
public park. One of the contentions on appeal challenged the sufficiency of the
evidence that the Garden Estates Housing Complex was a family housing
complex at the time of the offense. In concluding that the evidence was
insufficient, we noted that while the State had established that the family
housing complex operated as such at the time of trial, the State had not
established that it was such at the time of the offense. We held that “[t]he fact
that a family housing complex existed at the time of the offense is an essential
element of the charge.” 19 N.E.3d at 287 (emphasis in original).
[15] Here, the State established on direct examination that the Wood Creek Inn &
Suites operated as a family housing complex at the time of trial. However,
there was no evidence presented by the State to establish that it operated as such
at the time of the offense. Nonetheless, Kaufman, on cross-examination of
Huffine, after asking for a percentage of the families who lived there that had
children, asked him, “Is that generally run the way it is?” Tr. p. 200. Huffine
responded, “Yes sir.” Id. at 201. Kaufman then asked Huffine if he considered
the business to be an apartment complex. Huffine replied, “No sir, we’re just
an extended stay hotel. . . .” Id.
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-516 | July 21, 2015 Page 7 of 15 [16] Based on the evidence presented at trial, it appears that there is some evidence
to support the jury’s conclusion that the Wood Creek Inn & Suites was
operated as a hotel or motel at the time of the offense. Our standard of review
prevents us from reweighing the evidence. Boggs, 928 N.E.2d at 864. We must
examine the record to determine if there is evidence sufficient to support the
jury’s decision. Id. Here, we find that it does.
II. Evidence of Manufacturing [17] In order to convict Kaufman of dealing in methamphetamine as a Class A
felony, the State was required to prove beyond a reasonable doubt that
Kaufman knowingly or intentionally manufactured methamphetamine in, on,
or within one thousand feet of a family housing complex. Ind. Code § 35-48-4-
1.1(b)(3)(B)(iii). In this issue, he challenges the evidence supporting his
conviction that he was engaged in the manufacturing process. Manufacturing is
defined by statute in pertinent part as “the production, preparation,
propagation, compounding, conversion, or processing of a controlled
substance.” Ind. Code § 35-48-1-18 (2001). Indiana Code section 35-41-5-1
(1977) defines an attempt as occurring when a person “acting with the
culpability required for commission of the crime . . . engages in conduct that
constitutes a substantial step toward commission of the crime.”
[18] At Kaufman’s jury trial, Detective Brock Hensley testified in great detail about
the methamphetamine manufacturing process and the items necessary for its
production when the one pot method is used. Typically, a one-liter or two-liter
bottle is emptied of its contents and dried out. Ammonium nitrate pellets Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-516 | July 21, 2015 Page 8 of 15 contained in cold packs are removed from the cold pack and placed in the
bottle. Sodium hydroxide or household lye is then placed in the bottle and
mixed with the ammonium nitrate pellets. Those ingredients produce an
ammonia gas. Pseudoephedrine based cold medicine is ground up and placed
in the bottle. An organic solvent such as Coleman camping fuel or starter fluid
is placed in the bottle along with any kind of organic salt. Next, a lithium
battery is stripped, in most cases by use of pliers, in order to retrieve the piece of
silver metal from inside the battery. The piece of silver metal is placed in the
bottle. If Coleman camping fuel is used, the water contained in the fuel will
spark the piece of metal. Sometimes water is used to start the reaction if
another organic solvent is used. At that point the chemical reduction process
has started and the methamphetamine lab is rolling.
[19] The reduction breaks down the pseudoephedrine, which is in solid form, and
generates methamphetamine oil, which is suspended in the Coleman fuel. The
reduction process takes approximately forty-five to sixty minutes to complete.
At that point there are two layers of substances in the bottle. The bottom layer
contains the unused lye, the cornstarch binding of the pseudoephedrine pills,
and the unused ammonium nitrate pellets. The top layer, or liquid layer,
contains the Coleman fuel, which has absorbed the methamphetamine oil. A
baster or similar object is used to remove the liquid layer for placement in a
glass jar.
[20] To return that methamphetamine oil to solid form, some sort of strong acid,
such as muriatic acid or sulfuric acid, is mixed with common household soap to
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-516 | July 21, 2015 Page 9 of 15 create hydrochloride gas in a twenty-ounce bottle. Airline tubing, such as the
kind used for aquariums, extends from a hole in the cap of the twenty-ounce
bottle. After the gas is produced, it is put over the methamphetamine oil to
return it to solid form. The solid is washed with acetone, which evaporates
quickly, in order to clean up the product. Another option is to allow the solid
material to dry in coffee filters.
[21] Evansville Police Sergeant David Barron, who was the supervisor over the joint
task force meth suppression unit, testified that upon examining the items found
under the bridge, there were “items indicative of meth manufacture,” but that
“no chemicals had been mixed, we couldn’t find or I couldn’t find an active
reaction vessel where the chemicals had been put together.” Tr. pp. 87, 91.
[22] When asked about items typically used in the methamphetamine
manufacturing process, but which were missing from the scene, such as airline
tubing, salt, muriatic acid, or any other items used to generate the gas to smoke
off the meth oil, both Sergeant Barron and Detective Hensley testified that
sometimes people begin the process in one location and complete the process in
another location. None of the officers smelled the odor associated with
manufacturing methamphetamine at the location under the bridge. The
pseudoephedrine pills were missing from the blister packs and no residue from
the manufacturing of methamphetamine was found. The mason jar and the
twenty-ounce soda bottle were empty and the coffee filters appeared to be
unused.
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-516 | July 21, 2015 Page 10 of 15 [23] In Dawson v. State, 786 N.E.2d 742 (Ind. Ct. App. 2003), trans. denied, we
reviewed a defendant’s conviction of dealing in a controlled substance under
Indiana Code section 35-48-4-2 (2001). We discussed two cases handed down
by this Court on August 12, 2002, outlining the distinction between what
evidence was sufficient to support a conviction of dealing in a controlled
substance under Indiana Code section 35-48-4-2 and possession of two or more
listed precursors with the intent to manufacture methamphetamine. See Bush v.
State, 772 N.E.2d 1020 (Ind. Ct. App. 2002), trans. denied; Iddings v. State, 772
N.E.2d 1006 (Ind. Ct. App. 2002), trans. denied. In Bush, we held that in order
to convict the defendant of dealing in a controlled substance, the manufacturing
process does not have to be completed, nor does there have to be actual product
recovered. 772 N.E.2d at 1023. In Iddings, we determined that the difference
between the evidence required to support a conviction of dealing in a controlled
substance, and possession of two or more precursors with the intent to
manufacture methamphetamine, is “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.” 772 N.E.2d at 1016-17.
[24] Here, there was evidence to establish that certain items used in the
methamphetamine manufacturing process were present. The can of starter fluid
had been punctured, the blister packs of pseudoephedrine had been emptied,
and a cold pack had been disassembled. Lithium batteries had been stripped,
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-516 | July 21, 2015 Page 11 of 15 presumably with the pliers found at the scene. Other items necessary for the
manufacture of methamphetamine were present under the bridge. However,
the State was required to present evidence found at the location of the meth lab
site showing Kaufman engaged in the manufacturing process. The only
evidence connecting Kaufman consisted of: (1) the receipt from Kaufman’s
purchase of pseudoephedrine from Walgreens, (2) Kaufman’s finger print on
the packaging of one of the cold packs, and (3) Kaufman’s presence in the
parking lot of the Wood Creek Inn & Suites shortly after police officers arrived
to follow up on the tip about the meth lab site. Unlike in Bush and Iddings, the
items were not located in Kaufman’s residence or in an area under his exclusive
control. Instead, they were located under a bridge, and fingerprints from other
individuals were also recovered.
[25] The State cited to our opinion Montgomery v. State, 22 N.E.3d 768 (Ind. Ct.
App. 2014) in its brief. However, after the brief was filed, the Supreme Court
granted transfer, vacating the opinion. In that appeal, we considered the
sufficiency of the evidence supporting that defendant’s conviction of Class B
felony dealing in methamphetamine. In Montgomery, the State presented
evidence that in the two months leading up to his arrest, the defendant had
purchased a box of pseudoephedrine every ten days. At the time of
Montgomery’s arrest he was in possession of a smoking hydrochloride
generator, lye, sulfuric acid, two open instant cold packs containing ammonium
nitrate, two one-pound containers of salt, a twenty ounce soda bottle with a bi-
layer liquid that smelled strongly of ether, several pieces of burnt foil, an open
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-516 | July 21, 2015 Page 12 of 15 package of coffee filters, a pipe cutter, and a plastic funnel with white residue.
That evidence, in addition to the defendant’s attempt to flee from police, was
found to be sufficient to support Montgomery’s conviction. Our opinion,
however, was vacated upon the grant of transfer.
[26] In this case, the evidence supports an inference that someone or a group of
people were preparing to manufacture methamphetamine and that many of the
required ingredients were located under the bridge. However, the evidence is
insufficient to connect Kaufman to the offense of which he was convicted. The
jury was given the option to convict Kaufman of attempted dealing in
methamphetamine, but did not do so. Therefore, based on the paucity of
evidence linking Kaufman to the manufacture of methamphetamine, we find
that there is insufficient evidence to support his conviction for that offense.
[27] However, the jury was instructed on the lesser-included offense of Class C
felony possession of chemical reagents or precursors with intent to manufacture
controlled substances. Ind. Code § 35-48-4-14.5(f) (2006). In order to convict
Kaufman of the offense the State was required to prove beyond a reasonable
doubt that Kaufman possessed two or more chemical reagents or precursors
with the intent to manufacture a controlled substance within one thousand feet
of a family housing complex. We have already concluded that the evidence
was sufficient to establish that the location of the suspected meth lab site was
within 1,000 feet of a family housing complex. Indiana Code section 35-48-4-
14.5(a) sets forth which items meet the definition of chemical reagent and
precursors, which includes pseudoephedrine and ammonium nitrate.
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-516 | July 21, 2015 Page 13 of 15 [28] “Absent an admission by the defendant, intent must be determined from a
consideration of the defendant’s conduct and the natural and usual
consequences thereof.” West v. State, 805 N.E.2d 909, 915 (Ind. Ct. App. 2004).
“The trier of fact must resort to reasonable inferences based upon an
examination of the surrounding circumstances to determine whether, from the
person’s conduct and the natural consequences of what might be expected from
that conduct, a showing or inference of the intent to commit that conduct
exists.” Id.
[29] The evidence presented at trial establishes that the Walgreens receipt found
under the bridge was from a purchase made by Kaufman. The NPLEx record
and surveillance video connect him to that purchase. Further, his finger print
was recovered from the packaging of one of the cold packs. Testimony
established that ammonium nitrate pellets used in the manufacture of
methamphetamines is a component of cold packs. When Kaufman was
arrested and the charges were explained to him he stated that he thought the
appropriate charge against him should be possession of precursors. Therefore,
we conclude that the State presented sufficient evidence that Kaufman
possessed two or more precursors with the intent to manufacture
methamphetamine within 1,000 feet of a family housing complex.
Conclusion [30] Based on the foregoing, we find that there is insufficient evidence to establish
that Kaufman committed the offense of Class A felony dealing in
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-516 | July 21, 2015 Page 14 of 15 methamphetamine within 1,000 feet of a family housing complex. However,
there is sufficient evidence to establish that he committed the lesser-included
offense of possession of two or more chemical reagents or precursors with intent
to manufacture controlled substances within 1,000 feet of a family housing
complex. Therefore, we remand this matter to the trial court to vacate
Kaufman’s conviction and sentence for dealing in methamphetamine as a Class
A felony, and to enter judgment of conviction against Kaufman on one count of
possession of two or more chemical reagents or precursors with intent to
manufacture methamphetamine within 1,000 feet of a family housing complex
as a Class C felony, and to sentence Kaufman accordingly.
[31] Affirmed in part, reversed in part and remanded with instructions.
Bradford, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-516 | July 21, 2015 Page 15 of 15