MEMORANDUM DECISION May 29 2015, 9:11 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 John T. Wilson Gregory F. Zoeller Anderson, Indiana Attorney General of Indiana Graham T. Youngs Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tony Julian, May 29, 2015
Appellant-Defendant, Court of Appeals Case No. 48A02-1407-CR-477 v. Appeal from the Madison Circuit Court, the Honorable Thomas Newman, Jr., Judge State of Indiana, Trial Court Case No. Appellee-Plaintiff 48C03-1211-FB-2213
Mathias, Judge.
[1] Tony Julian (“Julian”) appeals his convictions in Madison Circuit Court for
Class B felony dealing in methamphetamine, Class D felony possession of
chemical reagents or precursors with the intent to manufacture a controlled
substance, Class D felony maintaining a common nuisance, and Class A
Court of Appeals of Indiana | Memorandum Decision 48A02-1407-CR-477 | May 29, 2015 Page 1 of 12 misdemeanor false informing. Julian raises three issues on appeal, which we
restate as the following two: 1) whether the trial court committed fundamental
error by admitting into evidence items seized during the warrantless search of
Julian’s apartment; and 2) whether the State presented sufficient evidence to
prove that Julian constructively possessed the evidence seized during the search
of his apartment.
Facts and Procedural History
[2] On November 28, 2012, Madison County Drug Task Force Officer Leann
Dwiggins (“Officer Dwiggins”), who was investigating methamphetamine
activity in Anderson, was attempting to serve an arrest warrant on Christopher
Douglas (“Douglas”). Officer Dwiggins learned that Douglas might be hiding
in an apartment located at 2325 Broadway.
[3] Detective Cliff Cole (“Detective Cole”) proceeded to the apartment at that
address, which was leased to Julian and described as an “upstairs apartment
behind the Sunny Bunny.” Tr. p. 157. As Detective Cole approached the front
door, he noticed a odor that he associated with the manufacture of
methamphetamine. The detective knocked on the front door and announced his
presence. Julian responded and identified himself without opening the door.
Julian also told the Detective Cole that Douglas was not inside the apartment
and denied the detective’s request to enter his apartment.
[4] Given the danger inherent in manufacturing methamphetamine, Detective Cole
determined that it was necessary to enter Julian’s apartment to ensure the safety
Court of Appeals of Indiana | Memorandum Decision 48A02-1407-CR-477 | May 29, 2015 Page 2 of 12 of the residents and neighbors. Another detective with the task force assured
Detective Cole that it was permissible to enter the apartment due to the safety
risks inherent in manufacturing methamphetamine.
[5] Detective Cole returned to the front door of the apartment and knocked. He
asked Julian to open the door. When Julian refused, the detective told him that
he had three seconds to open the door before the detective forced it open.
[6] Julian opened the door and Detective Cole entered the apartment. The
chemical smell associated with the manufacture of methamphetamine was
strong. Detective Cole and accompanying officers quickly located Douglas
hiding inside the bathroom in the apartment. Julian stated that he was not
aware that Douglas was inside his apartment.
[7] Detective Cole continued to search the apartment because, due to the strength
of the odor, he believed that either methamphetamine had been recently
manufactured or an active methamphetamine lab was inside the residence. In a
closet, Detective Cole located a backpack and a green storage tote. He opened
the lid to the tote and unzipped the backpack. The detective found a
methamphetamine kit, i.e. funnels, pliers, a hair dryer, and Coleman fuel. In
the kitchen, the odor was especially strong, and the detective found a trash bag.
Through the plastic bag, Detective Cole saw what he believed to be a “one pot”
methamphetamine lab. Julian told the officers he did not know that the items
were in his apartment.
Court of Appeals of Indiana | Memorandum Decision 48A02-1407-CR-477 | May 29, 2015 Page 3 of 12 [8] Julian then gave the officers permission to search the rest of the apartment, and
they found 3.02 grams of methamphetamine in Julian’s bathroom where
Douglas had been hiding. The officers also found stripped lithium batteries and
casings, soiled coffee filters, a strainer, a plastic bottle with a tube running from
it, lye, drain opener, more bottles of Coleman fuel, and rock salt. All of these
items are commonly used in the manufacture of methamphetamine.
[9] Julian was charged with Class B felony dealing in methamphetamine, Class D
felony possession of methamphetamine, Class D felony possession of chemical
reagents or precursors with the intent to manufacture a controlled substance,
Class D felony maintaining a common nuisance, and Class A misdemeanor
false informing. A jury trial was held on May 15, 2014.
[10] At trial, Douglas testified that he and Julian had an agreement that Douglas
could manufacture methamphetamine in his apartment in exchange for one-half
gram of the resulting methamphetamine. Douglas stated that Julian was inside
the apartment when he began the manufacturing process but left the apartment
for approximately forty minutes. Julian testified that he allowed Douglas to stay
in the apartment but did not know that Douglas was manufacturing
methamphetamine until he returned to the apartment a few minutes before the
police arrived.
[11] The jury returned a guilty verdict on all counts except Class D felony possession
of methamphetamine. The trial court ordered Julian to serve an aggregate ten-
year sentence for his Class B felony dealing in methamphetamine, Class D
Court of Appeals of Indiana | Memorandum Decision 48A02-1407-CR-477 | May 29, 2015 Page 4 of 12 felony possession of chemical reagents or precursors with the intent to
manufacture a controlled substance, Class D felony maintaining a common
nuisance, and Class A misdemeanor false informing convictions. Julian now
appeals.1
I. Fundamental Error
[12] Julian argues that the warrantless entry into his apartment violated his rights
under the Fourth Amendment to the United States Constitution and Article
One, Section Eleven of the Indiana Constitution. However, at trial, Julian
affirmatively stated that he had no objection to the admission of the evidence
seized during the warrantless search. An “‘appellant cannot on the one hand
state at trial that he has no objection to the admission of evidence and thereafter
in this Court claim such admission to be erroneous.’” Halliburton v. State, 1
N.E.3d 670, 678-79 (Ind. 2013) (quoting Harrison v. State, 258 Ind. 359, 363, 281
N.E.2d 98, 100 (1972)). Consequently, Julian has waived appellate review of
his claim of error.2 See, e.g., Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010)
(holding that defendant, who did not object to evidence upon introduction of
evidence and who affirmatively stated he had no objection, waived review of
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MEMORANDUM DECISION May 29 2015, 9:11 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 John T. Wilson Gregory F. Zoeller Anderson, Indiana Attorney General of Indiana Graham T. Youngs Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tony Julian, May 29, 2015
Appellant-Defendant, Court of Appeals Case No. 48A02-1407-CR-477 v. Appeal from the Madison Circuit Court, the Honorable Thomas Newman, Jr., Judge State of Indiana, Trial Court Case No. Appellee-Plaintiff 48C03-1211-FB-2213
Mathias, Judge.
[1] Tony Julian (“Julian”) appeals his convictions in Madison Circuit Court for
Class B felony dealing in methamphetamine, Class D felony possession of
chemical reagents or precursors with the intent to manufacture a controlled
substance, Class D felony maintaining a common nuisance, and Class A
Court of Appeals of Indiana | Memorandum Decision 48A02-1407-CR-477 | May 29, 2015 Page 1 of 12 misdemeanor false informing. Julian raises three issues on appeal, which we
restate as the following two: 1) whether the trial court committed fundamental
error by admitting into evidence items seized during the warrantless search of
Julian’s apartment; and 2) whether the State presented sufficient evidence to
prove that Julian constructively possessed the evidence seized during the search
of his apartment.
Facts and Procedural History
[2] On November 28, 2012, Madison County Drug Task Force Officer Leann
Dwiggins (“Officer Dwiggins”), who was investigating methamphetamine
activity in Anderson, was attempting to serve an arrest warrant on Christopher
Douglas (“Douglas”). Officer Dwiggins learned that Douglas might be hiding
in an apartment located at 2325 Broadway.
[3] Detective Cliff Cole (“Detective Cole”) proceeded to the apartment at that
address, which was leased to Julian and described as an “upstairs apartment
behind the Sunny Bunny.” Tr. p. 157. As Detective Cole approached the front
door, he noticed a odor that he associated with the manufacture of
methamphetamine. The detective knocked on the front door and announced his
presence. Julian responded and identified himself without opening the door.
Julian also told the Detective Cole that Douglas was not inside the apartment
and denied the detective’s request to enter his apartment.
[4] Given the danger inherent in manufacturing methamphetamine, Detective Cole
determined that it was necessary to enter Julian’s apartment to ensure the safety
Court of Appeals of Indiana | Memorandum Decision 48A02-1407-CR-477 | May 29, 2015 Page 2 of 12 of the residents and neighbors. Another detective with the task force assured
Detective Cole that it was permissible to enter the apartment due to the safety
risks inherent in manufacturing methamphetamine.
[5] Detective Cole returned to the front door of the apartment and knocked. He
asked Julian to open the door. When Julian refused, the detective told him that
he had three seconds to open the door before the detective forced it open.
[6] Julian opened the door and Detective Cole entered the apartment. The
chemical smell associated with the manufacture of methamphetamine was
strong. Detective Cole and accompanying officers quickly located Douglas
hiding inside the bathroom in the apartment. Julian stated that he was not
aware that Douglas was inside his apartment.
[7] Detective Cole continued to search the apartment because, due to the strength
of the odor, he believed that either methamphetamine had been recently
manufactured or an active methamphetamine lab was inside the residence. In a
closet, Detective Cole located a backpack and a green storage tote. He opened
the lid to the tote and unzipped the backpack. The detective found a
methamphetamine kit, i.e. funnels, pliers, a hair dryer, and Coleman fuel. In
the kitchen, the odor was especially strong, and the detective found a trash bag.
Through the plastic bag, Detective Cole saw what he believed to be a “one pot”
methamphetamine lab. Julian told the officers he did not know that the items
were in his apartment.
Court of Appeals of Indiana | Memorandum Decision 48A02-1407-CR-477 | May 29, 2015 Page 3 of 12 [8] Julian then gave the officers permission to search the rest of the apartment, and
they found 3.02 grams of methamphetamine in Julian’s bathroom where
Douglas had been hiding. The officers also found stripped lithium batteries and
casings, soiled coffee filters, a strainer, a plastic bottle with a tube running from
it, lye, drain opener, more bottles of Coleman fuel, and rock salt. All of these
items are commonly used in the manufacture of methamphetamine.
[9] Julian was charged with Class B felony dealing in methamphetamine, Class D
felony possession of methamphetamine, Class D felony possession of chemical
reagents or precursors with the intent to manufacture a controlled substance,
Class D felony maintaining a common nuisance, and Class A misdemeanor
false informing. A jury trial was held on May 15, 2014.
[10] At trial, Douglas testified that he and Julian had an agreement that Douglas
could manufacture methamphetamine in his apartment in exchange for one-half
gram of the resulting methamphetamine. Douglas stated that Julian was inside
the apartment when he began the manufacturing process but left the apartment
for approximately forty minutes. Julian testified that he allowed Douglas to stay
in the apartment but did not know that Douglas was manufacturing
methamphetamine until he returned to the apartment a few minutes before the
police arrived.
[11] The jury returned a guilty verdict on all counts except Class D felony possession
of methamphetamine. The trial court ordered Julian to serve an aggregate ten-
year sentence for his Class B felony dealing in methamphetamine, Class D
Court of Appeals of Indiana | Memorandum Decision 48A02-1407-CR-477 | May 29, 2015 Page 4 of 12 felony possession of chemical reagents or precursors with the intent to
manufacture a controlled substance, Class D felony maintaining a common
nuisance, and Class A misdemeanor false informing convictions. Julian now
appeals.1
I. Fundamental Error
[12] Julian argues that the warrantless entry into his apartment violated his rights
under the Fourth Amendment to the United States Constitution and Article
One, Section Eleven of the Indiana Constitution. However, at trial, Julian
affirmatively stated that he had no objection to the admission of the evidence
seized during the warrantless search. An “‘appellant cannot on the one hand
state at trial that he has no objection to the admission of evidence and thereafter
in this Court claim such admission to be erroneous.’” Halliburton v. State, 1
N.E.3d 670, 678-79 (Ind. 2013) (quoting Harrison v. State, 258 Ind. 359, 363, 281
N.E.2d 98, 100 (1972)). Consequently, Julian has waived appellate review of
his claim of error.2 See, e.g., Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010)
(holding that defendant, who did not object to evidence upon introduction of
evidence and who affirmatively stated he had no objection, waived review of
his argument that evidence was unlawfully seized).
1 We held oral argument in this case at Cathedral High School in Indianapolis, Indiana on April 20, 2015. We extend our gratitude to the administration, faculty, and students for their generous hospitality. We would also like to congratulate the Cathedral High School “We the People” Team for being named Indiana State Champions for the 2014-15 school year. We also thank counsel for their written and oral advocacy. 2 In his appellate brief, Julian cites to Article One, Section Eleven and to the correct standard. However, he failed to present argument separate from his analysis of his Fourth Amendment claim. Therefore, he also waived his Article One, Section Eleven claim for the purposes of appeal. See Russell v. State, 993 N.E.2d 1176, 1181 (Ind. Ct. App. 2013).
Court of Appeals of Indiana | Memorandum Decision 48A02-1407-CR-477 | May 29, 2015 Page 5 of 12 [13] However, “[a] claim that has been waived by a defendant’s failure to raise a
contemporaneous objection can be reviewed on appeal if the reviewing court
determines that a fundamental error occurred.” Id.; see also Konopasek v. State,
946 N.E.2d 23, 27 (Ind. 2011) (stating that “‘[f]ailure to object to the admission
of evidence at trial normally results in waiver and precludes appellate review
unless its admission constitutes fundamental error’”) (citation omitted). “The
fundamental error exception is ‘extremely narrow, and applies only when the
error constitutes a blatant violation of basic principles, the harm or potential for
harm is substantial, and the resulting error denies the defendant fundamental
due process.’” Brown, 929 N.E.2d at 207 (citation omitted).
[14] In his brief, Julian cites the correct authority discussing the fundamental error
standard, but he argues only that “warrantless entry into the residence . . . and
subsequent search was not only a violation of his constitutional rights under”
the Fourth Amendment and Article One, Section Eleven, “but was
fundamental error.” Appellant’s Br. at 7. Julian does not explain how
admission of the evidence found during the search of his apartment denied him
fundamental due process. Julian has therefore waived this argument for the
purposes of appeal. See Ind. Appellate Rule 46(A)(8)(a); Cooper v. State, 854
N.E.2d 831, 834 n.1 (Ind. 2006).
[15] Waiver notwithstanding, Julian faces the heavy burden of demonstrating that
the “alleged errors are so prejudicial to the defendant’s rights as to ‘make a fair
trial impossible.’” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014) (quoting Benson
v. State, 762 N.E.2d 748, 756 (Ind. 2002)).
Court of Appeals of Indiana | Memorandum Decision 48A02-1407-CR-477 | May 29, 2015 Page 6 of 12 In other words, to establish fundamental error, the defendant must show that, under the circumstances, the trial judge erred in not sua sponte raising the issue because alleged errors (a) constitute clearly blatant violations of basic and elementary principles of due process and (b) present an undeniable and substantial potential for harm. The element of such harm is not established by the fact of ultimate conviction but rather depends upon whether [the defendant’s] right to a fair trial was detrimentally affected by the denial of procedural opportunities for the ascertainment of truth to which he otherwise would have been entitled. *** We stress that “[a] finding of fundamental error essentially means that the trial judge erred . . . by not acting when he or she should have. . . .” Fundamental error is meant to permit appellate courts a means to correct the most egregious and blatant trial errors that otherwise would have been procedurally barred, not to provide a second bite at the apple for defense counsel who ignorantly, carelessly, or strategically fail to preserve an error. Id. at 668 (internal citations omitted).
[16] Detective Cole’s initial warrantless entry into Julian’s apartment did not violate
the Fourth Amendment because the odor of methamphetamine manufacturing
is an established exigent circumstance. See Holder v. State, 847 N.E.2d 930 (Ind.
2006) (holding that if probable cause exists to believe that an occupied residence
contains a methamphetamine laboratory, then exigent circumstances exist to
permit a warrantless search of the residence to ensure the safety of the
occupants). Even if we assume for the sake of argument that Detective Cole’s
continued warrantless search of Julian’s apartment after his initial walk through
did not yield any evidence of an active methamphetamine lab violated the
Court of Appeals of Indiana | Memorandum Decision 48A02-1407-CR-477 | May 29, 2015 Page 7 of 12 Fourth Amendment, under the facts and circumstances of this case, Julian was
not denied the right to a fair trial.
[17] Even though the evidence seized during the warrantless search significantly
contributed to Julian’s conviction, Julian specifically declined to object to
admission of the evidence. See Tr. p. 141 (referring to the photographs of the
items found in Julian’s apartment and stating “I’m going to allow each and
everyone [sic] of them in”); see also Wright v. State, 828 N.E.2d 904, 907 (Ind.
2005) (stating that a party may not take advantage of an error that he invites).
Julian declined to object because his defense at trial was that he was not aware
that Douglas planned to manufacture methamphetamine in his apartment and
he was not present in the apartment during the manufacture. Accordingly, any
error in the admission of that evidence did not affect Julian’s right to
“ascertainment of truth,” particularly in light of his chosen defense. For all of
these reasons, we conclude that the trial court did not commit fundamental
error by failing to sua sponte suppress the evidence seized during the warrantless
search.
II. Sufficient Evidence
[18] Finally, Julian argues that the State failed to prove that he actually or
constructively possessed the items used to manufacture methamphetamine that
were discovered during the search of his apartment; therefore, his convictions
are not supported by sufficient evidence. When the sufficiency of evidence is
challenged, we neither reweigh the evidence nor judge the credibility of
Court of Appeals of Indiana | Memorandum Decision 48A02-1407-CR-477 | May 29, 2015 Page 8 of 12 witnesses. Chappell v. State, 966 N.E.2d 124, 129 (Ind. Ct. App. 2012) (citing
McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)), trans. denied. Rather, we
recognize the exclusive province of the trier of fact to weigh any conflicting
evidence, and we consider only the probative evidence supporting the
conviction and the reasonable inferences to be drawn therefrom. Id. If
substantial evidence of probative value exists from which a reasonable trier of
fact could have drawn the conclusion that the defendant was guilty of the crime
charged beyond a reasonable doubt, then the verdict will not be disturbed.
Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008).
[19] On the date he committed the offenses, Julian’s crimes were statutorily defined
as follows:
Class B felony dealing in methamphetamine: “A person who: knowingly or intentionally manufactures . . . methamphetamine, pure or adulterated . . . commits dealing in methamphetamine[.]” And manufacturing is defined as “the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container.” I.C. §§ 35-48-4-1.1(a); 35-48-1-18. Class D felony maintaining a common nuisance: “A person who knowingly or intentionally maintains a building, structure, vehicle, or other place that is used one (1) or more times . . . by persons to unlawfully use controlled substances; or . . . for unlawfully” manufacturing, keeping, offering for sale, selling, delivering, or financing the delivery of controlled substances, or items of drug paraphernalia as described in IC 35-48-4-8.5;
Court of Appeals of Indiana | Memorandum Decision 48A02-1407-CR-477 | May 29, 2015 Page 9 of 12 commits maintaining a common nuisance[.]” I.C. § 35-48-4- 13(b). Class D felony possession of chemical reagents or precursors: “A person who possesses two (2) or more chemical reagents or precursors with the intent to manufacture a controlled substance commits a Class D felony.” I.C. § 35-48-4-14.5(e).
See also Appellant’s App. pp. 10-11.
[20] A person may be convicted of an offense if he actually or constructively
possesses the contraband. See Mack v. State, 23 N.E.3d 742, 759 (Ind. Ct. App.
2014).
Constructive possession is established by showing that the defendant has the intent and capability to maintain dominion and control over the contraband. . . . [W]hen possession of the premises is non-exclusive, the inference [of control] is not permitted absent some additional circumstances indicating knowledge of the presence of the contraband and the ability to control it. Among the recognized “additional circumstances” are: (1) incriminating statements by the defendant; (2) attempted flight or furtive gestures; (3) a drug manufacturing setting; (4) proximity of the defendant to the contraband; (5) contraband is in plain view; and (6) location of the contraband is in close proximity to items owned by the defendant.
Id. And, “‘a residence is controlled by the person who lives in it, and that
person may be found in control of any drugs’” or contraband discovered
therein, “‘whether he is the owner, tenant, or merely an invitee.’” Id. at 758
(quoting Allen v. State, 798 N.E.2d 490, 501 (Ind. Ct. App. 2003)).
[21] Julian argues that the evidence is insufficient to support his convictions because
he did not have exclusive possession of his apartment. Douglas was inside Court of Appeals of Indiana | Memorandum Decision 48A02-1407-CR-477 | May 29, 2015 Page 10 of 12 Julian’s apartment, although with Julian’s consent. Also, Julian testified that
left Douglas alone in the apartment for a significant period of time and returned
home shortly before the police arrived.
[22] However, Julian’s self-serving testimony was weighed against Douglas’s
testimony that Julian allowed Douglas to use his apartment to “cook”
methamphetamine, and in exchange, Douglas gave him a portion of the
resulting methamphetamine. On the date the offenses were committed, Julian
allowed Douglas to enter his apartment, and Douglas had a backpack and tote
containing the chemicals and precursors necessary to “cook”
methamphetamine. Julian was inside the apartment when Douglas began
manufacturing and returned to the apartment approximately forty-five minutes
later. When the officers arrived at Julian’s apartment just a few minutes after
Julian returned home, the odor the officers associated with the manufacture of
methamphetamine was strong. Therefore, the officers believed that either an
active methamphetamine lab was in the apartment or methamphetamine had
recently been manufactured.
[23] At trial, Julian admitted that he knew that Douglas was a “meth cooker.” Tr. p.
262. He also testified that he knew that Douglas had been manufacturing
methamphetamine in his apartment “[a]t the time the police came.” Tr. p. 262.
Julian also admitted that he lied to the officers when he told them that Douglas
was not in his apartment.
Court of Appeals of Indiana | Memorandum Decision 48A02-1407-CR-477 | May 29, 2015 Page 11 of 12 [24] Finally, Julian argues that mere possession of the chemicals reagents and
precursors is not sufficient evidence to prove that he manufactured
methamphetamine. However, the officers found methamphetamine in Julian’s
bathroom, the odor associated with the manufacture of methamphetamine
emanated from the apartment, and Detective Cole found a “one-pot”
methamphetamine lab in the trash in the apartment.
[25] For these reasons, we conclude that the State’s evidence establishing Julian’s
control over the apartment, the agreement between Douglas and Julian,3 and
Julian’s own admissions and inconsistent statements are sufficient evidence that
Julian committed Class B felony dealing in methamphetamine, Class D felony
possession of chemical reagents or precursors with the intent to manufacture a
controlled substance, and Class D felony maintaining a common nuisance.
Conclusion
[26] The trial court did not commit fundamental error by admitting into evidence
the items seized during the warrantless search of Julian’s apartment. The
evidence is sufficient to support Julian’s convictions.
[27] Affirmed.
Kirsch, J., and Bradford, J., concur.
3 The jury was instructed on accomplice liability at trial. See I.C. § 35-41-2-4 (“A person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense[.]”); Tr. p. 308.
Court of Appeals of Indiana | Memorandum Decision 48A02-1407-CR-477 | May 29, 2015 Page 12 of 12