Christopher A. Lothamer v. State of Indiana , 2015 Ind. App. LEXIS 657 ( 2015 )

Sep 30 2015, 8:52 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Anthony S. Churchward Gregory F. Zoeller
Anthony S. Churchward, P.C. Attorney General of Indiana
Ft. Wayne, Indiana Indianapolis, Indiana
Cynthia L. Ploughe
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christopher A. Lothamer, September 30, 2015
Appellant-Defendant, Court of Appeals Case No.
92A05-1501-CR-26
v. Appeal from the Whitley Circuit
Court
State of Indiana The Honorable James R. Heuer
Appellee-Plaintiff Trial Court Cause No.
92C01-1401-FB-18
Altice, Judge.
Case Summary
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[1] Following a jury trial, Christopher Lothamer was convicted of Dealing in
Methamphetamine by Manufacturing,1 a class B felony, along with numerous
other drug offenses. On appeal, Lothamer presents one issue for our review:
Whether the evidence is sufficient to sustain his conviction for dealing in
methamphetamine by manufacturing.
[2] We affirm.
[3] Lothamer lived in a trailer located on Lot 51 in the Miami Village Mobile
Home Park with his fiancée, Tina Farber. Farber was in the process of
purchasing the trailer from her grandfather. Lothamer began living in the
trailer with Farber in August 2012 and lived there continuously until January
2014. In August 2013, Lothamer introduced Farber to methamphetamine, and
they began using the drug together. By December 2013, Lothamer and Farber
were using methamphetamine almost daily.
[4] Initially, Lothamer would purchase methamphetamine from Willie Jensen or
exchange pseudoephedrine for it. On three occasions, Lothamer and Farber
agreed to allow Jensen to manufacture methamphetamine in the bathroom of
their trailer. Lothamer also installed hooks so blankets could be hung to keep
the odors contained to the bathroom while Jensen cooked the
1
See Ind. Code § 35-48-4-1.1. Effective July 1, 2014, this offense was reclassified as a Level 5 felony.
Because Lothamer committed this offense prior to that date, it retains its prior classification as a class B
felony.
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methamphetamine. After the first occasion in December 2013, Lothamer,
Farber, and Jensen smoked the finished product. Following the second
occasion, also in December 2013, Lothamer used a needle to inject some of the
methamphetamine Jensen had just made.
[5] The third occasion was on January 28, 2014, when Lothamer and Farber again
permitted Jensen to use their bathroom to make methamphetamine. Lothamer
and Jensen went to the store to pick up some items needed to cook the
methamphetamine. When they returned, Jensen went into the bathroom to
make methamphetamine. On this occasion, Lothamer was present in the
bathroom with Jensen.
[6] On January 29, 2014, Detective William Brice of the Whitley County Sherriff’s
Department served a search warrant for the trailer located on Lot 51. Lothamer
and Farber were not present at the time. During the search of the trailer,
Detective Brice discovered numerous items used for manufacturing
methamphetamine in the bedroom, kitchen, and living area. Three plastic
bottles that were used as one-pot methamphetamine labs were discovered in the
freezer. Additional facts will be provided as necessary.
[7] On January 31, 2014, Lothamer was charged with Count I, dealing in
methamphetamine by manufacturing, a class B felony; Count II, possession of
methamphetamine, a class D felony; Count III, maintaining a common
nuisance, a class D felony; Count IV, possession of chemical reagents or
precursors with intent to manufacture a controlled substance, a class D felony;
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Count V, possession of paraphernalia, a class A misdemeanor; and Count VI,
possession of precursors within seven years of a prior conviction for dealing in
methamphetamine, a class D felony. A jury trial was held on October 28 and
29, 2014, at the conclusion of which the jury found Lothamer guilty of Counts
I, II, IV, and V, and not guilty of Count III. Thereafter, Lothamer pleaded
guilty to Count VI.2 The trial court held a sentencing hearing on December 15,
2014, and sentenced Lothamer to an aggregate sentence of ten years.
[8] On appeal, Lothamer argues that there is insufficient evidence to sustain his
conviction for dealing in methamphetamine by manufacturing. The State’s
theory was that Lothamer assisted Jensen in the manufacture of
methamphetamine, and the jury was instructed accordingly.
[9] Our standard of reviewing challenges to the sufficiency of the evidence
supporting a criminal conviction is well settled.
When reviewing a challenge to the sufficiency of the evidence
underlying a criminal conviction, we neither reweigh the
evidence nor assess the credibility of witnesses. The evidence—
even if conflicting—and all reasonable inferences drawn from it
are viewed in a light most favorable to the conviction. “[W]e
affirm if there is substantial evidence of probative value
supporting each element of the crime from which a reasonable
trier of fact could have found the defendant guilty beyond a
2
Count VI was not tried during Phase 1 of the jury trial because of the enhancement aspect of the offense.
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reasonable doubt.” Davis v. State, 813 N.E.2d 1176, 1178 (Ind.
2004).
Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012).
[10] To sustain a conviction for dealing in methamphetamine, the State’s evidence
must prove that Lothamer “knowingly or intentionally . . .manufacture[d]
methamphetamine, pure or adulterated.” I.C. § 35-48-4-1.1(a)(1)(A). To
convict Lothamer as an accomplice, the State was required to prove that he
knowingly or intentionally aided, induced, or caused Jensen to manufacture
methamphetamine. See Ind. Code § 35-41-2-4.
It is well established that a person who aids another in
committing a crime is just as guilty as the actual perpetrator. To
be convicted as an accomplice, it is not necessary for a defendant
to have participated in every element of the crime. While mere
presence at the scene of the crime is insufficient to establish
accomplice liability, presence may be considered along with the
defendant’s relation to the one engaged in the crime and the
defendant’s actions before, during, and after the commission of
the crime.
Green v. State, 937 N.E.2d 923, 927 (Ind. Ct. App. 2010) (citations omitted),
trans. denied.
[11] We have held that a person can be guilty of dealing in methamphetamine by
manufacturing even though the person does not actually “cook” the product.
In Fowler v. State, 900 N.E.2d 770 (Ind. Ct. App. 2009), the defendant
essentially conceded that another person manufactured methamphetamine in
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his home. The defendant, however, claimed that his assistance was
“inadvertent and unintentional” as he only carried a bag into his home without
knowing its contents and only later realized the nature of what was in the bag.
At that point, the defendant instructed his friend to “do what he had to do, and
then leave.” Id. at 775. This court upheld the defendant’s conviction for
assisting with the manufacture of methamphetamine given that the
manufacturing occurred at defendant’s home and with his knowledge, even
though the defendant was not present in the room when the manufacturing
occurred, drug paraphernalia was found in virtually every room in the house,
the defendant carried at least some of the items into the house, odors and
vapors were readily detectable in the house, and methamphetamine residue was
found on a plate in the kitchen. Id.[12] Here, Lothamer and Farber permitted Jensen to use their home to manufacture
methamphetamine. Lothamer was present in the home on each occasion and
even admitted supervising Jensen on one occasion. Lothamer never expressed
any opposition to having the drug produced at his home. In fact, Lothamer
provided pseudoephedrine to Jensen to use in the manufacture of
methamphetamine and went to the store to purchase items to be used in the
manufacturing process. Lothamer also installed hooks so blankets could be
hung to keep the odors contained to the bathroom while Jensen cooked the
methamphetamine. Lothamer was therefore not merely present at the scene,
but acted in concert with Jensen to manufacture methamphetamine.
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[13] Further, as in Fowler, methamphetamine precursors and paraphernalia were
found in numerous rooms in Lothamer’s and Farber’s home. Additionally,
three one-pot methamphetamine labs were found in the freezer and
methamphetamine residue was found on a coffee filter located in the home.
[14] While Lothamer did not own the trailer, he began living with Farber, his
fiancée, in August 2012, and lived there continuously until January 2014.
Lothamer used the address of the trailer on his driver’s license. Farber testified
that she and Lothamer made joint decisions, including the decision to allow
Jensen to manufacture methamphetamine in their home. The totality of the
evidence supports a reasonable inference that Lothamer knowingly and
intentionally aided Jensen in the manufacture of methamphetamine. We
therefore affirm Lothamer’s conviction for dealing in methamphetamine by
manufacturing.
[15] Judgment affirmed.
[16] Riley, J., and Brown, J., concur.
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