Zackary L. Schulz v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 28, 2017
• Docket: 79A02-1605-CR-1238
• Status: Published

Opinion

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any court except for the purpose of establishing Feb 28 2017, 8:55 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Steven Knecht Curtis T. Hill, Jr. Vonderheide & Knecht, P.C. Attorney General of Indiana Lafayette, Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Zackary L. Schulz, February 28, 2017 Appellant-Defendant, Court of Appeals Case No. 79A02-1605-CR-1238 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Steven P. Meyer, Appellee-Plaintiff. Judge Trial Court Cause No. 79D02-1508-F4-7

Mathias, Judge.

[1] Following a bench trial in Tippecanoe Superior Court, Zackary L. Schulz

(“Schulz”) was convicted of Level 4 felony dealing in methamphetamine and

Court of Appeals of Indiana | Memorandum Decision 79A02-1605-CR-1238 | February 28, 2017 Page 1 of 8 Class B misdemeanor false informing. Schulz appeals and argues that the State

presented insufficient evidence to support his conviction for dealing in

methamphetamine.

[2] We affirm.

Facts and Procedural History

[3] In August 2015, Adam (“Adam”) Wright lived with his mother, Elizabeth

Wright (“Elizabeth”) in Lafayette, Indiana. On the evening of August 10, as

Adam returned home from work, he entered the house to find his brother, John

Wright (“John”), in the house with an undetermined number of other people,

one of whom was Schulz. The interior of the house was smoky or foggy and, as

later reported by the police, contained a strong chemical smell. Adam suspected

that his brother was manufacturing methamphetamine, so he telephoned 911.1

[4] Officers from the Lafayette Police Department arrived on the scene a few

minutes later and were flagged down by Adam, who directed them to the

house. As the police approached the house, they noted a strong chemical smell

associated with the manufacture of methamphetamine. Looking through an

open window, the police saw that the house was filled with a hazy smoke. They

also saw John in the kitchen with a folded piece of aluminum foil. A fan was

blowing smoke away from the stovetop. The police delayed going into the

1 Adam, in an apparent effort to get the police to arrive quickly, also falsely told the dispatcher that shots had been fired.

Court of Appeals of Indiana | Memorandum Decision 79A02-1605-CR-1238 | February 28, 2017 Page 2 of 8 house until they received the approval of the tenant, Elizabeth. Before they

could obtain her permission, John and Schulz came out of the front of the

house. The police apprehended John, but Schulz ran back into the house and

peered out the blinds in the window. The police yelled at Schulz to come out of

the house, but he remained inside and, at some point, ran upstairs and hid in a

bedroom.

[5] The police spoke with John, who gave them Schulz’s name. The police ran a

check on Schulz and discovered that he had an active warrant for his arrest on

another matter. After obtaining Elizabeth’s permission to search the house, the

police entered and again noticed a haze inside the home and a strong chemical

smell. One of the officers in the house had a police dog with him, and this dog

located Schulz in the upstairs bedroom closet. The police told Schulz to come

out of the closet, and he initially stated that he would. When he did not,

however, the police sent the dog in after him. The dog bit Schulz, who quickly

surrendered. At first, Schulz lied about his name but eventually admitted who

he was and that he had an outstanding warrant for his arrest.

[6] The police searched the house and discovered an active methamphetamine

manufacturing setup in the kitchen. The items the police found in the kitchen

included a hydrochloric gas generator that was still smoking, table salt, coffee

filters, sulfuric acid, pseudoephedrine, lithium batteries, and scissors used to cut

lithium strips from the batteries. Also found was a fan blowing across a glass

bowl that appeared to have been used to mix the ingredients to make the

methamphetamine. A search of the garage revealed a “one pot” container that

Court of Appeals of Indiana | Memorandum Decision 79A02-1605-CR-1238 | February 28, 2017 Page 3 of 8 was actively making methamphetamine. Tr. pp. 123, 131. A test of this vessel

revealed the presence of methamphetamine.

[7] On August 10, 2015, the State filed a four-count information against Schulz

alleging that he committed the following crimes: Count I, Level 4 felony

dealing in methamphetamine by manufacture; Count II, Level 5 felony

possession of chemical reagents or precursors with the intent to manufacture;

Count III, Class A misdemeanor resisting law enforcement; and Count IV,

Class B misdemeanor false informing.

[8] A bench trial was held on March 22, 2016, at the conclusion of which the court

found Schulz guilty of Counts I, II, and IV, but not guilty of Count III. At a

sentencing hearing held on May 4, 2016, the trial court merged Count II into

Count I for sentencing purposes sentenced Schulz to seven years, with four

executed and three suspended to probation. The court imposed a concurrent

180-day sentence on Count IV. Schulz now appeals.

Discussion and Decision

[9] Schulz argues on appeal that the State failed to present evidence sufficient to

support his conviction for dealing in methamphetamine by manufacture. Our

standard of review on claims of insufficient evidence is well settled:

When reviewing a claim that the evidence is insufficient to support a conviction, we neither reweigh the evidence nor judge the credibility of the witnesses; instead, we respect the exclusive province of the trier of fact to weigh any conflicting evidence. We consider only the probative evidence supporting the [judgment]

Court of Appeals of Indiana | Memorandum Decision 79A02-1605-CR-1238 | February 28, 2017 Page 4 of 8 and any reasonable inferences which may be drawn from this evidence. We will affirm if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.

Harrison v. State, 32 N.E.3d 240, 247 (Ind. Ct. App. 2015), trans. denied (citing

McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)). Circumstantial evidence

alone is sufficient to sustain a conviction. Bush v. State, 772 N.E.2d 1020, 1022

(Ind. Ct. App. 2002).

[10] Here, Schulz challenges his conviction for dealing in methamphetamine by

manufacture. The relevant statute provides that “A person who . . . knowingly

or intentionally . . . manufactures . . . methamphetamine, pure or adulterated,

commits dealing in methamphetamine . . . .” Ind. Code § 35-48-4-1.1(a). The

crime of dealing in methamphetamine is generally a Level 5 felony. Id.

However, the crime is elevated to a Level 4 felony if “the amount of the drug

involved is less than one (1) gram and an enhancing circumstances applies.” Id.

at § 1.1(c)(2). One of these “enhancing circumstances” is that the offense was

committed “in, on, or within five hundred (500) feet of . . . a public park while a

person under eighteen (18) years of age was reasonably expected to be present.”

I.C. § 35-48-1-16.5(3)(B)(ii).

[11] Here, Schulz does not deny that the evidence was sufficient to establish that

someone manufactured methamphetamine in the Wright household, nor does he

deny that the was evidence sufficient to establish that the Wright home was

within 500 feet of a public park at a time when a person under the age of Court of Appeals of Indiana | Memorandum Decision 79A02-1605-CR-1238 | February 28, 2017 Page 5 of 8 eighteen was reasonably expected to be present. He instead argues that the

evidence was insufficient to establish that he was involved in the manufacture of

methamphetamine. Schulz notes that no witness saw him participate in the

manufacturing process or in proximity to the labs found in the kitchen or

garage. Schulz contends that his mere presence at the scene and the opportunity

to have participated in the manufacture of the methamphetamine is insufficient

to establish that he, as opposed to John Wright, manufactured

[12] Schulz is correct that “[m]ere presence at the crime scene with the opportunity

to commit a crime is not a sufficient basis on which to support a conviction.”

Willis v. State, 27 N.E.3d 1065, 1068 (Ind. 2015) (quoting Pratt v. State, 744

N.E.2d 434, 436 (Ind. 2001)). However, “presence at the scene in connection

with other circumstances tending to show participation, such as companionship

with the one engaged in the crime, and the course of conduct of the defendant

before, during, and after the offense, may raise a reasonable inference of guilt.

Id. (citing Maul v. State, 731 N.E.2d 438, 439 (Ind. 2000)). Here, there were such

other circumstances.

[13] John Wright was seen in the kitchen where the manufacturing “lab” was set up

and at least partially operational. John’s brother Adam was concerned about his

brother because he was “running around” with Schulz. Tr. p. 158. Schulz and

John were seen together at the scene. Thus, Schulz was John’s companion. The

course of conduct in which Schulz engaged is also highly indicative of his guilt.

Schulz was in a house that was filled with smoke or fumes and reeked of the

Court of Appeals of Indiana | Memorandum Decision 79A02-1605-CR-1238 | February 28, 2017 Page 6 of 8 smell of chemicals used to manufacture methamphetamine. A

methamphetamine lab was set up in the kitchen of the house, with fans blowing

the fumes out of the window. Thus, Schulz was in a house with an active

methamphetamine manufacturing process underway and in plain view in the

kitchen, yet he claimed that no smoke in the house other than from cigarettes.

After John was apprehended by the police, Schulz went back into the house and

peeked out of a window, from which it can reasonably inferred that he saw the

police. Instead of obeying their commands to exit the house, he hid in a closet

and did not come out of the closet until a police dog bit him.

[14] All of these circumstances support a reasonable inference that Schulz knew that

methamphetamine was being manufactured in the home and was, at the very

least, an accomplice to the manufacture of the methamphetamine. See Schaaf v.

State, 54 N.E.3d 1041, 1043 (Ind. Ct. App. 2016) (noting rule that a person can

be charged as a principal and convicted as an accomplice even if he did not

participate in each and every element of the crime).

[15] Our supreme court has identified four factors that can be considered by the fact-

finder in determining whether a defendant aided another in the commission of a

crime: (1) presence at the scene of the crime; (2) companionship with another

engaged in a crime; (3) failure to oppose the commission of the crime; and (4)

the course of conduct before, during, and after the occurrence of the crime. Id.

(citing Wieland v. State, 736 N.E.2d 1198, 1202 (Ind. 2000)). Here, Schulz was

present at the scene of an active methamphetamine lab, he was a companion of

John Wright, there is no suggestion that he opposed the crime, and he fled from

Court of Appeals of Indiana | Memorandum Decision 79A02-1605-CR-1238 | February 28, 2017 Page 7 of 8 police. From this, the trial court could reasonably conclude that Schulz was

guilty of manufacturing methamphetamine under a theory of accomplice

liability. See id. at 1043-44 (holding that evidence was sufficient to support

defendant’s conviction of dealing heroin as an accomplice where defendant was

present at the scene of the crime, was companions with the principal, failed to

oppose the crime, suggested the place for the controlled buy to occur, and

allowed the controlled buy to take place in his vehicle).

[16] Schulz’s remaining arguments are little more than a request that we reweigh his

testimony of and that of John Wright and come to a conclusion other than that

reached by the trial court.2 This is not our role as an appellate court. See

Harrison, 32 N.E.3d at 247 (citing McHenry, 820 N.E.2d at 126).

[17] In conclusion, sufficient circumstantial evidence supports Schulz’s conviction

for dealing in methamphetamine.

[18] Affirmed.

Baker, J., and Pyle, J., concur.

2 Schulz also claims that the testimony of Adam Wright was incredibly dubious. However, the incredible dubiosity rule is inapplicable here, where several witnesses testified and there was considerable circumstantial evidence. See Baumgartner v. State, 891 N.E.2d 1131, 1138 (Ind. Ct. App. 2008) (noting that application of the incredible dubiosity rule is limited to those situations where a sole witness presents inherently contradictory testimony that is equivocal or the result of coercion and there is a complete lack of circumstantial evidence of the defendant’s guilt). Moreover, even though it was apparent that Adam was a reluctant witness, there was nothing about his testimony that was so inherently improbable that it ran counter to human experience such that no reasonable person could believe it. See id.

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