Dale Bulthuis III v. State of Indiana , 2014 Ind. App. LEXIS 472 ( 2014 )

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
BRUCE W. GRAHAM GREGORY F. ZOELLER
Graham Law Firm, P.C. Attorney General of Indiana
Lafayette, Indiana
BRIAN REITZ
Deputy Attorney General
Indianpolis, Indiana
Sep 23 2014, 9:41 am
IN THE
COURT OF APPEALS OF INDIANA
DALE BULTHUIS III, )
)
Appellant-Defendant, )
)
vs. ) No. 79A04-1402-CR-49
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Randy J. Williams, Judge
Cause No. 79D01-1308-FB-21
September 23, 2014
OPINION – FOR PUBLICATION
MATHIAS, Judge
Dale Bulthuis III (“Bulthuis”) was convicted following a jury trial in Tippecanoe
Superior Court of Class B felony dealing in methamphetamine and two counts of Class C
felony neglect of a dependent. The trial court sentenced Bulthuis to an aggregate term of
eighteen years. The trial court also ordered restitution in the amount of $9,597 to the
victim and $2,443.44 to the State. Bulthuis appeals and presents three issues, which we
restate as:
I. Whether the trial court erred in admitting evidence found during a search of
the garage of the home in which Bulthuis was located;
II. Whether the State presented evidence sufficient to support Bulthuis’s
conviction for Class B felony dealing in methamphetamine; and
III. Whether the trial court abused its discretion in ordering restitution to the
State.
We affirm.
Facts and Procedural History
On August 16, 2013, Shane Allen (“Allen”), a case manager for the Department of
Child Services (“DCS”) was investigating a report of unsupervised children and
manufacturing methamphetamine at a home in Tippecanoe County. Allen therefore met
with Lieutenant Scott Hodson (“Lt. Hodson”) of the Tippecanoe County Sheriff’s
Department to investigate the report. The two went to the house, parked on the street in
front of the residence, and walked up the driveway to the house. When they approached
the attached garage, they noticed a chemical odor, but the odor dissipated. Before they
could get to the front door of the house, Kristen Wireman (“Wireman”) opened the door
and stepped outside. Wireman told Allen and Lt. Hodson that she lived at the house
along with Bulthuis’s children, two-year-old A.B. and four-year-old R.B. Wireman also
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stated that she rented the house and that she had signed the lease. Allen asked Wireman
if they could look inside the house, and Wireman said, “sure” and let them inside.
Suppression Hearing Tr. p. 24.
Inside the house, Allen and Lt. Hodson saw the two children and another woman.
Allen told Wireman that they were there to investigate a report that a man named “Dale”
was manufacturing methamphetamine at the residence. Wireman stated that the
defendant, Dale Bulthuis, was the father of the children and that he visited the residence,
but that he did not live there and was not there at the time. The older child, however,
nodded his head and said, “yes.” Suppression Hearing Tr. p. 24. Shortly thereafter, Lt.
Hodson asked Wireman again if Bulthuis was there, and Wireman said he was not. But
R.B. again nodded his head “yes.” Id. Lt. Hodson then asked Wireman if she would
mind if he looked in her house for Bulthuis. Wireman responded, “no, I don’t mind at
all.” Id. Lt. Hodson asked R.B. where Bulthuis was. The boy stated that Bulthuis was in
the bedroom and led the officer to a bedroom down the hallway, where Lt. Hodson saw a
man, later identified as Bulthuis, hiding in a closet. After waiting for another officer to
arrive, Lt. Hodson took Bulthuis out of the closet and placed him in a police vehicle. Lt.
Hodson then discovered that there was an active warrant for Bulthuis’s arrest.
Upon returning to the house, Lt. Hodson asked Wireman if he could look in the
garage. Wireman initially responded, “yeah,” but then, as Lt. Hodson opened the garage
door, Wireman asked why he wanted to look in the garage. Suppression Hearing Tr. p.
26. Lt. Hodson responded by stating that they had received information that someone
had been manufacturing methamphetamine at the residence. Wireman then waved her
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hand and stated, “yeah, go ahead.” Tr. p. 26. When Lt. Hodson entered the garage, he
noted a strong chemical smell but determined that the odor was coming from a
motorcycle that had just been repainted. Lt. Hodson looked in a trash bag lying on the
floor of the garage and found battery shavings, which he knew was a byproduct of the
manufacture of methamphetamine; he also saw camping fuel and starter fluid, which he
also recognized as being used in the manufacture of methamphetamine. Inside a grill, Lt.
Hodson found a device set up to generate hydrogen chloride (“HCl”), another item used
in the manufacture of methamphetamine. Because of the potential dangers presented by
the presence of the suspected methamphetamine lab, Lt. Hodson ordered the occupants of
the house to evacuate and contacted the Indiana State Police (“ISP”) for assistance to
safely remove the materials.
Lt. Hodson spoke with Wireman and again obtained her consent to search the
house, this time having her sign a written consent form. Thereafter, Lt. Hodson learned
that Wireman too had an active warrant for her arrest, and she was taken to jail. Because
Wireman was no longer present and therefore unable to revoke her consent to search, Lt.
Hodson decided to obtain a search warrant. After obtaining the search warrant, the police,
including ISP Detective Brock Russell (“Det. Russell”), searched the house and garage.
Det. Russell found several items associated with the manufacture of methamphetamine:
empty boxes of “cold packs,” lithium battery shavings, empty bottles of starting fluid,
camping fuel, drain cleaner, digital scales, pieces of aluminum foil, coffee filters, and the
above-mentioned HCl generator. Also found was a plastic bag with a white residue
which later tested positive as methamphetamine. When the police searched the National
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Precursor Log Exchange (“NPLEX”) records, they discovered that both Bulthuis and
Wireman had reached the allowed purchase limit of 7.2 grams of pseudoephedrine within
thirty days. Indeed, both had recently attempted to purchase pseudoephedrine but been
denied due to having reached the allowed limit.
Detective Jacob Amberger (“Det. Amberger”) of the Tippecanoe County Sheriff’s
Department later interviewed Bulthuis. Bulthuis signed a written acknowledgement of
his Miranda rights, but still spoke with the detective. During his interview, Bulthuis
admitted that he “screwed up” and claimed that he had only “tinkered with” the HCl
generating bottle found in the garage. Ex. Vol., State’s Ex. 74T, pp. 12, 14. Bulthuis
stated that he obtained pseudoephedrine so that he could make “a couple [of] extra bucks.”
Id. at 12. Bulthuis also told the detective that the bottle found in the garage was the “last
one” and that the “girls” were not involved. Id. at 14.
On August 21, 2013, the State charged Bulthuis with dealing in methamphetamine
as a Class B felony, two counts of neglect of a dependent as a Class C felony, and
maintaining an illegal drug lab as a Class D felony. Thereafter, Bulthuis requested and
received permission to proceed pro se. On October 28, 2013, Bulthuis filed a pro se
motion to suppress. The trial court held a suppression hearing on November 5, 2013, and
issued an order denying Bulthuis’s motion to suppress on November 14, 2013. Per
Bulthuis’s request, the trial court appointed counsel to represent him at trial. A jury trial
was held on November 19–20, 2013, at the conclusion of which the jury found Bulthuis
guilty as charged.
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At a sentencing hearing held on December 20, 2013, the trial court vacated
Bulthuis’s conviction for maintaining an illegal drug lab. The court then imposed a
sentence of twelve years on the Class B felony conviction and six years on the Class C
felony convictions. The trial court ordered the sentences on the Class C felony
convictions to be served concurrently, but consecutively to the sentence on the Class B
felony conviction, for an aggregate sentence of eighteen years. The court ordered
Bulthuis to serve ten years executed, two years in Community Corrections, and six years
suspended. Bulthuis now appeals.
I. Admission of Evidence Found During Search
A. Standard of Review
When a defendant challenges the constitutionality of a search following a
completed trial, the issue is one of whether the trial court properly admitted the evidence.
Casady v. State, 934 N.E.2d 1181, 1188 (Ind. Ct. App. 2010), trans. denied. Questions
regarding the admission of evidence are entrusted to the sound discretion of the trial court.
Fuqua v. State, 984 N.E.2d 709, 713-14 (Ind. Ct. App. 2013), trans. denied. Accordingly,
we review the court’s decision on appeal only for an abuse of that discretion. Id. The
trial court abuses its discretion only if its decision regarding the admission of evidence is
clearly against the logic and effect of the facts and circumstances before it, or if the court
has misinterpreted the law. Id. Regardless of whether the challenge is made through a
pretrial motion to suppress or by an objection at trial, our review of rulings on the
admissibility of evidence is essentially the same: we do not reweigh the evidence, and we
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consider conflicting evidence in a light most favorable to the trial court’s ruling, but we
also consider any undisputed evidence that is favorable to the defendant. Id.Both the Fourth Amendment to the United States Constitution and Article I,
Section 11 of the Indiana Constitution protect “the right of the people to be secure in their
persons, houses, papers and effects, against unreasonable searches and seizures[.]” U.S.
Const. Amend. IV; Ind. Const., art. I § 11. These protections against unreasonable
governmental searches and seizures are a principal mode of discouraging lawless police
conduct. Friend v. State, 858 N.E.2d 646, 650 (Ind. Ct. App. 2006) (citing Jones v. State,
655 N.E.2d 49, 54 (Ind. 1995); Terry v. Ohio, 392 U.S. 1, 12 (1968)). When the police
conduct a warrantless search, the State bears the burden of establishing that an exception
to the warrant requirement is applicable. Id.One recognized exception to the warrant requirement is a valid consent to search.
Id. (citing Krise v. State, 746 N.E.2d 957, 961 (Ind. 2001)). When an individual gives the
State permission to search either his person or property, the governmental intrusion is
presumably reasonable. Id. When seeking to rely upon consent to justify a warrantless
search, the State bears the burden of proving that the consent was freely and voluntarily
given Id. at 651.
The voluntariness of the consent to search is to be determined by considering the
totality of the circumstances. Id. A consent to search is valid except where it is procured
by fraud, duress, fear, intimidation, or where it is merely a submission to the supremacy
of the law. Crocker v. State, 989 N.E.2d 812, 820 (Ind. Ct. App. 2013), trans. denied.
7
The “totality of the circumstances” from which the voluntariness of a
[defendant]’s consent is to be determined includes, but is not limited to, the
following considerations: (1) whether the defendant was advised of his
Miranda rights prior to the request to search; (2) the defendant’s degree of
education and intelligence; (3) whether the defendant was advised of his
right not to consent; (4) whether the detainee has previous encounters with
law enforcement; (5) whether the officer made any express or implied
claims of authority to search without consent; (6) whether the officer was
engaged in any illegal action prior to the request; (7) whether the defendant
was cooperative previously; and (8) whether the officer was deceptive as to
his true identity or the purpose of the search.
Id. at 820-21 (citing State v. Scheibelhut, 673 N.E.2d 821, 824-25 (Ind. Ct. App. 1996)).
The determination of whether consent in this context was voluntary is a question of fact,
and a reviewing court is ill-equipped to make factual determinations, especially where the
evidence is conflicting. Scheibelhut, 673 N.E.2d at 824-25.
B. Validity of Wireman’s Consent
In the present case, Bulthuis argues that Wireman did not validly consent.1 In
support of his argument, Bulthuis claims that Wireman was unaware that she did not have
to allow the police officers into her home and that Lt. Hodson never actually explained
that he planned to search her home. We disagree. Even if Wireman did testify that she
was unaware of her ability to refuse to consent, the totality of the circumstances support
the trial court’s ruling.
Lt. Hodson testified that Wireman allowed him and DCS caseworker Allen into
her home and agreed to let Lt. Hodson search her home for Bulthuis. After Bulthuis was
found and taken into custody, Lt. Hodson asked if he could search Wireman’s garage
1
The State does not argue that Bulthuis did not have “standing” to challenge the search, noting that the
prosecuting attorney conceded the standing issue in the trial court. See Suppression Hearing Tr. p. 91.
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because of the report that Bulthuis had been manufacturing methamphetamine. On
appeal, Bulthuis makes much of the fact that Lt. Hodson testified that he asked if he
could “look” in the garage, which Bulthuis claims is not equivalent to asking for
permission to conduct a search. In context, however, it is clear from Lt. Hodson’s
testimony that he asked for permission to search and not merely to visually inspect the
premises.
At the suppression hearing, Lt. Hodson testified:
A. I asked, I asked her specifically can I look in garage because I’d seen
pretty much the rest of the [house] throughout the contact and she
said yeah. And as I to open the door, she said why, and I said well
our information is that someone’s making Meth here so I, I’ll need to
check for that and . . .
Q. And what was her response?
A. She said yeah go ahead and she waved her hand like this.
Suppression Hearing Tr. p. 26 (emphasis added). Lt. Hodson’s testimony at trial was
consistent with this. When asked why he asked to “check” Wireman’s garage, he
explained:
At this point that was pretty much the only room I hadn’t seen yet and the
original complaint had mentioned again meth being made there. So I asked
her if I could check the kitchen or the garage and she said yeah, sure, but
why? And I told her straight up was that part of our information was that
there was meth being made there. And she said okay, yeah, go ahead, and
she said go ahead.
Trial Tr. p. 153 (emphasis added). From this, the trial court could reasonably conclude
that Lt. Hodson asked for consent to search the garage for evidence of methamphetamine
manufacturing and that Wireman gave such consent.
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Moreover, after discovering some evidence of methamphetamine manufacturing
and removing the occupants from the house, Lt. Hodson obtained a written consent to
search from Wireman.2 And when Wireman was removed from the scene due to the
warrant for her arrest, Lt. Hodson sought and obtained a search warrant because Wireman
was no longer there to revoke her consent.
Although there is no indication that Lt. Hodson informed Wireman of her right to
refuse consent or advised her of her Miranda rights prior to asking if he could search her
house, at that point Wireman was not in custody and there was no requirement that she be
advised of her Miranda rights. Moreover, Lt. Hodson was not deceptive about his
identity: he was dressed in a full police uniform and drove a marked police car. Nor was
he deceptive about the purpose of the search: he informed Wireman of the report of
methamphetamine manufacturing and asked if he could “check for that.” Suppression Tr.
p. 26. Lt. Hodson did not make any claim of authority to search without consent, and
there is no indication that he or Allen were engaged in any illegal activity prior to the
request. And Wireman had been cooperative throughout her encounter with Lt. Hodson
and Allen. Considering the totality of the circumstances, we are unable to agree with
Bulthuis that the trial court abused its discretion in determining that Wireman freely and
voluntarily consented to the search of her house and garage.
2
Although Wireman testified at the suppression hearing that she was unaware that she was signing a
consent to search her home, the trial court was not required to credit her testimony, especially considering
her testimony that Bulthuis was her “best friend.” Suppression Hearing Tr. p. 59.
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C. Opportunity to Object to Search
Bulthuis also complains that he was never given an opportunity to object to the
search, citing Georgia v. Randolph, 547 U.S. 103 (2006). In that case, the defendant and
his wife were estranged, and the wife had moved to Canada with her parents for several
weeks. After she returned to the marital residence, she and the defendant were involved
in a domestic dispute, and the police were summoned to the residence. At the residence,
the wife told the police that her husband abused cocaine and that there was evidence of
cocaine use in the home. The police asked the defendant for his consent to search the
house and he “unequivocally refused.” Id. at 107. The police then asked the wife for
consent to search, which she gave. The police found evidence of cocaine use and small
amounts of cocaine.
On appeal from his conviction for possession of cocaine, Randolph claimed that
the police search of his home was unconstitutional given his refusal of consent. The
United States Supreme Court held that “a physically present inhabitant’s express refusal
of consent to a police search is dispositive as to him, regardless of the consent of a fellow
occupant.” Id. at 122-23. Accordingly, in that case, Randolph’s unequivocal refusal to
consent to the search effectively negated the consent of his wife. Id.Here, Bulthuis claims that Randolph should be extended to cover a situation where
one occupant consents but the other occupant “is present, but secreted in a location while
the issue of consent is intentionally withheld.” Appellant’s Br. at 17. We disagree. This
situation was explicitly addressed by the Court in Randolph, when the court distinguished
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its holding from its prior holdings in Illinois v. Rodriguez, 497 U.S. 177 (1990), and
United States v. Matlock, 415 U.S. 164 (1974).
In Matlock, the court held that the voluntary consent of one occupant of an area
was sufficient to allow the search of an area that the occupant shares authority over when
the other occupant is not present. 415 U.S. at 170 (“the consent of one who possesses
common authority over premises or effects is valid as against the absent, nonconsenting
person with whom that authority is shared.”). The defendant in Matlock was in custody
in a squad car not far away from the premises to be searched. And in Rodriguez, the
Court extended this holding to entries and searches with the permission of a co-occupant
whom the police reasonably, but erroneously, believe to possess shared authority as an
occupant. 497 U.S. at 186. The defendant in Rodriguez was actually in the house, but
asleep at the time of the search. Id. at 179.
In distinguishing these two cases from its holding, the Randolph Court admitted
that it was “drawing a fine line” between these situations, writing:
if a potential defendant with self-interest in objecting is in fact at the door
and objects, the co-tenant’s permission does not suffice for a reasonable
search, whereas the potential objector, nearby but not invited to take part in
the threshold colloquy, loses out. This is the line we draw, and we think the
formalism is justified. So long as there is no evidence that the police have
removed the potentially objecting tenant from the entrance for the sake of
avoiding a possible objection, there is practical value in the simple clarity
of complementary rules, one recognizing the co-tenant’s permission when
there is no fellow occupant on hand, the other according dispositive weight
to the fellow occupant’s contrary indication when he expresses it.
Randolph, 547 U.S. at 121-22 (emphasis added). And more recently, the Court noted that
Randolph is “limited to situations in which the objecting occupant is present” and
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explicitly held that “an occupant who is absent due to a lawful detention or arrest stands
in the same shoes as an occupant who is absent for any other reason.” Fernandez v.
California, 134 S. Ct. 1126, 1133-34 (2014).
Here, there is no indication that the police removed Bulthuis from the scene
simply for the sake of avoiding a possible objection. To the contrary, the police,
responding to a report of methamphetamine manufacturing by a man with Bulthuis’s first
name, were invited into Wireman’s home and given consent to search for Bulthuis.
When they discovered Bulthuis hiding in a closet, they removed him and found that he
had an active warrant for his arrest. Under these facts and circumstances, the voluntary
consent of the occupant, Wireman, was sufficient to allow the police to search the
premises. The police were under no obligation to approach Bulthuis and ask if he had an
objection to search. See Randolph, 547 U.S. at 121-22; Fernandez, 134 S.Ct. at 1334.
In short, the trial court did not abuse its discretion in concluding that Wireman’s
consent to search her house and garage was voluntarily given, nor were the police
required to give Bulthuis an opportunity to object to the search after he had been taken
into custody in a police vehicle. Accordingly, the trial court properly admitted the
evidence of methamphetamine manufacturing seized during the consensual search of
Wireman’s home and garage.
II. Sufficiency of the Evidence
Bulthuis next claims that the State presented insufficient evidence to support his
conviction for dealing in methamphetamine. In reviewing such a claim, our standard of
review is well settled:
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When reviewing a claim of insufficient evidence, we neither reweigh the
evidence nor judge the credibility of the witnesses. We consider only the
evidence most favorable to the verdict and the reasonable inferences that
can be drawn from this evidence. We will not disturb the jury’s verdict if
there is substantial evidence of probative value to support it. A reviewing
court respects the jury’s exclusive province to weigh conflicting evidence.
Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App. 2014), trans. denied.
Here, the State charged Bulthuis with dealing in methamphetamine as follows:
“On or about August, 2013, Dale Allen Bulthuis, III did knowingly or intentionally
manufacture methamphetamine, pure or adulterated.” Appellant’s App. p. 29. This
tracks the statutory language, which provides that “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) (2013).
Bulthuis admits that there was evidence establishing that someone had
manufactured methamphetamine in Wireman’s garage at “some unknown point in the
past,” but claims that “evidence of historical manufacturing” is insufficient to support his
conviction. Bulthuis notes that the police did not discover an “active” methamphetamine
lab and did not recover any pseudoephedrine, a precursor to the manufacture of
methamphetamine.3 In support of his claim, Bulthuis cites Vanzyll v. State, 978 N.E.2d
511 (Ind. Ct. App. 2012). In our opinion, however, this case supports the conclusion that
the State did present evidence sufficient to prove that Bulthuis manufactured
methamphetamine.
3
See Ind. Code § 35-48-4-14.5(a)(2) (2013).
14
In Vanzyll, the police executed a search warrant on the defendant’s residence and
discovered:
liquid that tested positive for the presence of methamphetamine, a fuel can
that tested positive for ammonia, a bottle which tested positive for
hydrochloric acid gas, containers with white solid crystals, lye, and drain
opener. In Vanzyll’s bedroom, the officers found identification, cash, a
Ziploc bag with white residue, which tested positive for the presence of
methamphetamine, digital scales, and a glass methamphetamine pipe. The
officers also found remnants of a methamphetamine lab in a trash bag in the
basement of the residence.
Id. at 514. On appeal, the defendant claimed that the evidence was insufficient to prove
that he manufactured methamphetamine because there was no evidence of an active
methamphetamine lab. This court rejected Vanzyll’s contention, noting first that the
statutory definition of “manufacture” broadly provides:
(1) 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.
Id. at 517 (quoting Ind. Code § 35-48-1-18).
In Vanzyll, the officers involved in the search testified at trial that the residence
smelled strongly of ammonia, a common trait of methamphetamine manufacturing. The
State also presented evidence that the items seized were commonly used in the
manufacture of methamphetamine. Vanzyll, however, did not cite to any case requiring
that there be evidence of an “active” methamphetamine lab to prove “manufacturing” as
defined by statute. Id. at 518. We therefore held that the evidence presented was
sufficient to support Vanzyll’s conviction because, “[a]lthough no law enforcement
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officer specifically testified that the methamphetamine lab was active, the evidence . . .
was sufficient for the jury to conclude that Vanzyll was in the process of manufacturing
methamphetamine, which had not yet been reduced to its final solid form.” Id. at 519.
We reach a similar conclusion in the present case. Bulthuis was found hiding in a
home where the police later found items commonly used to manufacture
methamphetamine, including empty boxes of “cold packs,” lithium battery shavings,
empty bottles of starting fluid, camping fuel, drain cleaner, digital scales, pieces of
aluminum foil, coffee filters, and an HCl generator. The police also found a plastic bag
with a white residue which later tested positive as methamphetamine. The State
presented testimony from an ISP detective that, based upon the evidence seized,
methamphetamine had been manufactured using the “one pot” method. Trial Tr. p. 282.
Further, both Bulthuis and Wireman had recently purchased relatively large quantities of
pseudoephedrine. And when interviewed by the police, Bulthuis made statements
indicating that he had been involved with the manufacture of methamphetamine. Indeed,
he admitted that he obtained pseudoephedrine to make “a couple [of] extra bucks,” and
that the bottle found in the garage was “the last one.” Ex. Vol., State’s Ex. 74T, pp. 12,
14.
From this, the jury could reasonably conclude that Bulthuis had been
manufacturing methamphetamine, whether or not the police discovered an “active” lab.
See Vanzyll, 978 N.E.2d at 517; see also Hill v. State, 825 N.E.2d 432, 437-38 (Ind. Ct.
App. 2005) (evidence sufficient to prove defendant manufactured methamphetamine,
even though no finished methamphetamine was found, where police did find a mirror
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with a small pipe on it, a handgun, several jars, starting fluid cans with holes in the
bottoms, an empty salt container, a coffee grinder, an aspirin bottle with pseudoephedrine
tablets, and a bottle of acetone). The State presented evidence sufficient to support
Bulthuis’s conviction for Class B felony dealing in methamphetamine.
III. Restitution
Lastly, Bulthuis contends that the trial court erred in ordering him to pay
restitution for the cleanup expenses incurred by the State in removing the items found in
Wireman’s garage that had been used to manufacture methamphetamine. Bulthuis cites
the opinion of this court in Edsall v. State, 983 N.E.2d 200, 208 (Ind. Ct. App. 2013),
reh’g denied. In that case, the defendant was ordered to pay the State over $19,000 in
restitution to cover the costs of the undercover investigation of the defendant. The
restitution in that case was purportedly authorized by the general restitution statute,
Indiana Code 35-50-5-3(a) (2013), which provides that “[i]n addition to any sentence
imposed under this article for a felony or misdemeanor, the court may, as a condition of
probation, or without placing the person on probation, order the person to make
restitution to the victim of the crime, the victim’s estate, or the family of a victim who is
deceased.” On appeal, we held that the State was not a “victim” for purposes of the
general restitution statute. Id. at 219. Bulthuis argues that the same is true here. We
disagree.
In the present case, the trial court’s award of restitution was specifically
authorized by another restitution statute, which provides:
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(a) In addition to any other penalty imposed for conviction of an offense
under this chapter involving the manufacture or intent to manufacture
methamphetamine, a court shall order restitution under IC 35-50-5-3 to
cover the costs, if necessary, of an environmental cleanup incurred by a law
enforcement agency or other person as a result of the offense.
(b) The amount collected under subsection (a) shall be used to reimburse
the law enforcement agency that assumed the costs associated with the
environmental cleanup described in subsection (a).
Ind. Code § 35-48-4-17 (2013) (emphasis added). Under this statute, the trial court is
required to order the defendant to pay restitution to cover the costs of any environmental
cleanup incurred by the State as a result of the defendant’s manufacture of
methamphetamine.
Here, the State submitted into evidence a document entitled “Clandestine Lab Cost
Estimator,” produced by the Methamphetamine Suppression Section of the ISP.
According to this document, the ISP incurred costs of $2,443.44 to clean up the
methamphetamine lab found in Wireman’s garage. Appellant’s App. p. 122. This is the
amount that the trial court ordered Bulthuis to pay in restitution to the State. As this is
not only permitted, but required by the relevant statute, we cannot say that the trial court
abused its discretion by ordering Bulthuis to pay restitution to cover the cleanup costs of
the garage lab where he had manufactured methamphetamine.
Conclusion
The trial court did not abuse its discretion in admitting into evidence the items
seized during the search of Wireman’s garage: Wireman voluntarily consented to the
search, and the police were not required to give Bulthuis, who was in custody in a police
car on an active warrant for his arrest, an opportunity to object to the search. The State
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presented evidence sufficient to support Bulthuis’s conviction for dealing in
methamphetamine: in addition to the presence of precursors and a manufacturing setting,
the police found methamphetamine residue, Bulthuis and Wireman had recently
purchased relatively large amounts of pseudoephedrine, and Bulthuis made statements
implicating himself in the manufacture of methamphetamine. The State was not required
to present evidence of an active methamphetamine lab. Lastly, the trial court’s restitution
order requiring Bulthuis to pay the State for the costs incurred during the cleanup of the
lab was specifically authorized, and indeed required, by the relevant restitution statute.
Affirmed.
RILEY, J., and CRONE, J., concur.
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