Paul D. Newcomb, Jr. v. State of Indiana (mem. dec.) ( 2016 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),                               Jan 12 2016, 9:19 am
    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
    Elizabeth A. Bellin                                      Gregory F. Zoeller
    Elkhart, Indiana                                         Attorney General of Indiana
    Richard C. Webster
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Paul D. Newcomb, Jr.,                                    January 12, 2016
    Appellant-Defendant,                                     Court of Appeals Case No.
    20A05-1503-CR-108
    v.                                               Appeal from the Elkhart Superior
    Court
    State of Indiana,                                        The Honorable Teresa L. Cataldo,
    Appellee-Plaintiff                                       Judge
    Trial Court Cause No.
    20D03-1403-FB-35
    Robb, Judge.
    Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-108 | January 12, 2016      Page 1 of 10
    Case Summary and Issue
    [1]   Following a bench trial, Paul Newcomb, Jr., was convicted of dealing in
    methamphetamine, a Class B felony, and found to be an habitual substance
    offender. Newcomb appeals, raising the sole issue of whether the State
    presented sufficient evidence to support his conviction for dealing in
    methamphetamine. Concluding the evidence was sufficient, we affirm.
    Facts and Procedural History
    [2]   In early March 2014, Town and Country Auto Sales reported a Toyota RAV4
    stolen from its lot in Elkhart, Indiana. A few weeks later, Town and Country
    repossession agents spotted the RAV4 at a gas station in Elkhart. The
    repossession agents parked their vehicles around the RAV4 to block it from
    leaving and exited their vehicles to confront the driver. Newcomb was the
    driver and sole occupant of the RAV4.
    [3]   While speaking with Newcomb, one of the repossession agents reached into the
    vehicle, which was running, to remove the key from the ignition. The key did
    not belong to a RAV4, and the engine did not shut off when it was removed.
    Newcomb grabbed a plastic bag from inside the vehicle and attempted to flee,
    but one of the repossession agents tackled him to the ground. The plastic bag
    contained instant cold packs and several bottles of lighter fluid.
    [4]   Corporal Dustin Young of the Elkhart Police Department was dispatched to the
    gas station in reference to a fight. When Corporal Young arrived, he learned
    Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-108 | January 12, 2016   Page 2 of 10
    Newcomb’s vehicle was possibly stolen. After confirming with dispatch the
    vehicle had been reported stolen, Corporal Young approached Newcomb and
    requested permission to perform a patdown search. Newcomb consented.
    [5]   During the patdown, Corporal Young felt an object in Newcomb’s coat pocket
    and asked Newcomb to identify the object. Newcomb stated the object was a
    scale and gave Corporal Young permission to remove it, but before Corporal
    Young could do so, Newcomb admitted he also had syringes and marijuana on
    his person. Corporal Young uncovered these items, as well as two baggies of
    white pills, a glass pipe with burnt residue, and a plastic baggie with white
    residue. The pills were identified by their markings as an over-the-counter drug
    containing pseudoephedrine, and subsequent forensic testing confirmed the
    white residue in the baggie was methamphetamine.
    [6]   While Corporal Young searched Newcomb, Indiana State Police Trooper
    Gretchen Deal searched the RAV4. She uncovered the following items used in
    the manufacture of methamphetamine: additional instant cold packs, additional
    bottles of lighter fluid, a bottle of drain opener, a bag of salt, lithium batteries,
    coffee filters, pliers, and a plastic bottle. Trooper Deal did not find an active
    reaction vessel, but she noted the presence of loose cold pack beads on the
    floorboard in the back of the vehicle.
    [7]   Corporal Young confronted Newcomb about the items found in the RAV4.
    Newcomb “acknowledged that he knew what they were” and “said they were
    for a friend,” but he refused to reveal the friend’s identity. Transcript at 262.
    Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-108 | January 12, 2016   Page 3 of 10
    When Corporal Young pressed Newcomb for the friend’s name, Newcomb said
    he would not be answering any more questions. The friend’s identity was never
    ascertained.
    [8]   The State charged Newcomb with dealing in methamphetamine by
    manufacturing as a Class B felony and also alleged he was an habitual
    substance offender, based on two prior convictions for possession of
    methamphetamine. A bench trial was held on January 14, 2015. The State
    called several witnesses, including Detective Greg Harder of the Elkhart Police
    Department. Detective Harder is trained to identify and dismantle
    methamphetamine labs. He processed the items recovered from the RAV4 and
    explained the “one-pot method” for manufacturing methamphetamine at trial.
    
    Id. at 328.
    [9]   Detective Harder testified Newcomb possessed all of the necessary precursors
    for manufacturing methamphetamine. The instant cold packs contained
    ammonium nitrate, and the drainer opener contained sodium hydroxide. 
    Id. at 358-59.
    When combined, ammonium nitrate and sodium hydroxide create
    anhydrous ammonia, which is mixed with lithium and pseudoephedrine to
    produce methamphetamine. 
    Id. at 359;
    State’s Ex. 201. To prevent the lithium
    from reacting with moisture in the air, the ingredients are mixed with an
    organic solvent such as lighter fluid. Tr. at 337. Once the reaction is complete,
    the methamphetamine must be extracted from the liquid solvent. See 
    id. at 375.
    The extraction can be accomplished by evaporation or by “crashing out” the
    methamphetamine. 
    Id. at 343-46,
    376. Evaporation occurs if the mixture is
    Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-108 | January 12, 2016   Page 4 of 10
    exposed to open air, thereby allowing the solvent to evaporate and the
    methamphetamine to crystalize. 
    Id. at 376.
    Alternatively, the
    methamphetamine is “crashed out” if the mixture is exposed to hydrochloric
    gas, created by mixing acid with salt. 
    Id. at 343-46.
    The hydrochloric gas
    causes the methamphetamine to crystalize in the solvent, and coffee filters are
    used to strain the methamphetamine from the liquid. 
    Id. [10] Detective
    Harder also provided an explanation for why the pseudoephedrine
    Newcomb was carrying had been removed from its packaging. In Detective
    Harder’s experience, manufacturers employ “smurfs” to buy pseudoephedrine,
    believing law enforcement can “track boxes to people as a way to try to identify
    meth cooks[.]” 
    Id. at 355.
    The manufacturer exchanges cash or
    methamphetamine for the pseudoephedrine, and the “smurf” disposes of the
    packaging, which is marked with a production number identifying “what batch,
    what pharmacy, what truck it came off of and what plant it came from.” 
    Id. [11] At
    the conclusion of the evidence, the trial court found Newcomb guilty of
    manufacturing methamphetamine, and Newcomb admitted to being an
    habitual substance offender. The trial court sentenced Newcomb to an
    aggregate sentence of twenty-four years in the Department of Correction, with
    four years suspended to probation. This appeal followed.
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    Discussion and Decision
    I. Standard of Review
    [12]   When reviewing the sufficiency of the evidence to support a conviction, we
    consider only the probative evidence and reasonable inferences supporting the
    verdict. Drane v. State, 
    867 N.E.2d 144
    , 146 (Ind. 2007). We neither reweigh
    the evidence nor assess the credibility of witnesses. 
    Id. Unless no
    reasonable
    fact-finder could conclude the elements of the crime were proven beyond a
    reasonable doubt, we will affirm the conviction. 
    Id. II. Dealing
    in Methamphetamine
    [13]   “A person who . . . knowingly or intentionally . . . manufactures . . .
    methamphetamine, pure or adulterated . . . commits dealing in
    methamphetamine, a Class B felony . . . .” Ind. Code § 35-48-4-1.1(a)(1)(A)
    (2006). “Manufacture” is defined as “the production, preparation, propagation,
    compounding, conversion, or processing of a controlled substance.” Ind. Code
    § 35-48-1-18(1) (2001). Although the manufacturing process need not be
    completed, the process must have been started in order to find a defendant
    guilty of manufacturing methamphetamine. Iddings v. State, 
    772 N.E.2d 1006
    ,
    1016-17 (Ind. Ct. App. 2002), trans. denied.
    [14]   The State contends Newcomb had started the manufacturing process by
    removing the pseudoephedrine pills and the cold pack beads from their
    packaging, thereby engaging in “preparation.” See Ind. Code 35-48-1-18(1)
    (2001). The methamphetamine residue, the State contends, “gives rise to the
    Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-108 | January 12, 2016   Page 6 of 10
    inference that [Newcomb] has previously manufactured methamphetamine,
    had used it all, and was preparing to manufacture more.” Brief of Appellee at
    10. Newcomb argues preparing is not the same as actually starting the
    manufacturing process; he points to the fact that many of the items recovered
    were unopened and did not appear to have ever been used to manufacture
    methamphetamine.
    [15]   We addressed a similar set of facts in Dawson v. State, 
    786 N.E.2d 742
    (Ind. Ct.
    App. 2003), trans. denied. In Dawson, the defendant was convicted of
    manufacturing methamphetamine based on his possession of crushed
    ephedrine, stripped lithium batteries, anhydrous ammonia, muriatic acid, camp
    fuel, tubing, and coffee filters. The police did not find an active reaction vessel.
    The defendant argued the evidence was insufficient to support his conviction
    for manufacturing methamphetamine because the process of manufacturing had
    not yet begun. The defendant “claim[ed] that having the crushed up pills does
    not equate to the start of the manufacturing process” and that “manufacturing
    does not begin until some of the precursors have been combined.” 
    Id. at 748.
    At trial, a police officer testified “it is standard practice for individuals to crush
    up the pills which contain ephedrine before soaking them in denatured alcohol
    so that the ephedrine can be extracted from the pill binders.” 
    Id. at 747-48.
    We
    held “once an individual crushes up pills in order to separate the ephedrine
    from the pill binders, the manufacturing process has begun.” 
    Id. at 748.
    [16]   Likewise, in Harrison v. State, 
    32 N.E.3d 240
    (Ind. Ct. App. 2015), trans. denied,
    the defendant was convicted of manufacturing methamphetamine based on his
    Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-108 | January 12, 2016   Page 7 of 10
    possession of crushed pseudoephedrine, ammonia, antifreeze, tubing, and a
    glass jar. The police did not find an active reaction vessel or any lithium, and
    the defendant argued the evidence was insufficient to support his conviction for
    manufacturing. We held the jury could reasonably conclude the defendant
    manufactured methamphetamine because he possessed every
    methamphetamine precursor except lithium and a police officer “described
    what he saw in the vehicle as a ‘very early stage’ methamphetamine lab . . . .”
    
    Id. at 246-48.
    [17]   In the present case, Newcomb possessed every methamphetamine precursor
    and the finished product, but the police did not find an active reaction vessel.
    Unlike Dawson and Harrison, however, the pseudoephedrine pills had not been
    crushed. Newcomb possessed whole pills, and in light of Detective Harder’s
    testimony regarding “smurfs,” tr. at 355, we are unpersuaded that removing the
    pills from their packaging constitutes the start of the manufacturing process.
    Although Newcomb had assembled all of the necessary components, we
    conclude the manufacturing process had not yet begun when the police
    searched the RAV4.
    [18]   Nonetheless, we believe the evidence was sufficient to support Newcomb’s
    conviction. “In Indiana there is no distinction between the responsibility of a
    principal and an accomplice.” Wise v. State, 
    719 N.E.2d 1192
    , 1198 (Ind. 1999).
    As the State argues, Newcomb admitted he knew the purpose of precursors,
    “said they were for a friend,” and possessed the finished product. Tr. at 262.
    The “friend” was never identified, but Indiana Code section 35-41-2-4 provides,
    Court of Appeals of Indiana | Memorandum Decision 20A05-1503-CR-108 | January 12, 2016   Page 8 of 10
    A person who knowingly or intentionally aids, induces, or causes
    another person to commit an offense commits that offense, even
    if the other person:
    (1) has not been prosecuted for the offense;
    (2) has not been convicted of the offense; or
    (3) has been acquitted of the offense.
    [19]   Accomplice liability is not considered a separate crime, but merely a separate
    basis of liability for the crime charged. Hampton v. State, 
    719 N.E.2d 803
    , 807
    (Ind. 1999). And even if the State charged a defendant as the principal, a
    defendant may be convicted on evidence of aiding another person in
    committing the offense. Jester v. State, 
    724 N.E.2d 235
    , 241 (Ind. 2000). In
    addition, a defendant need not have participated in every element of the offense
    to be convicted as an accomplice. Lothamer v. State, No. 92A05–1501–CR–26,
    
    2015 WL 5732830
    , at *2 (Ind. Ct. App. Sept. 30, 2015), trans. denied. Relevant
    here, we have previously held a person can be guilty of manufacturing
    methamphetamine even though the person does not actually “cook” the
    product. 
    Id. at *2-*3
    (affirming the defendant’s conviction for manufacturing
    methamphetamine as an accomplice where the defendant merely allowed the
    principal to “cook” in his fiancée’s trailer).
    [20]   Given the fact Newcomb possessed all of the necessary precursors for
    manufacturing methamphetamine as well as methamphetamine residue and a
    scale, the trial court reasonably concluded Newcomb was personally involved
    in the manufacture of methamphetamine. Although we do not believe the
    evidence establishes the manufacturing process had begun, we conclude
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    Newcomb’s admissions gave rise to accomplice liability. The evidence shows
    Newcomb at least aided another person in manufacturing methamphetamine,
    which is sufficient to support his conviction.
    Conclusion
    [21]   The State presented sufficient evidence to support Newcomb’s conviction for
    dealing in methamphetamine as a Class B felony. We therefore affirm
    Newcomb’s conviction.
    [22]   Affirmed.
    Barnes, J., and Altice, J., concur.
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