Brian W. Ellis v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Sep 22 2016, 5:49 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Adam C. Squiller Gregory F. Zoeller
Auburn, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brian W. Ellis, September 22, 2016
Appellant-Defendant, Court of Appeals Case No.
17A05-1512-CR-2179
v. Appeal from the DeKalb Superior
Court
State of Indiana, The Honorable Kevin P. Wallace,
Appellee-Plaintiff. Judge
Trial Court Cause No.
17D01-1405-FA-11
Barnes, Judge.
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Case Summary
[1] Brian Ellis challenges his conviction for Class A felony dealing in
methamphetamine. We affirm.
Issue
[2] Ellis presents one issue for our review, which we restate as whether the
evidence is sufficient to support his conviction for Class A felony dealing in
methamphetamine.
Facts
[3] On May 25, 2014, Mary Thacker and Mike Avery were working in their
backyard in DeKalb County when they heard a loud noise similar to an
explosion and saw smoke coming from their neighbor’s shed. Thacker saw
Ellis and another person near the shed. Thacker and Avery smelled an odor
like ammonia, and they alerted the police.
[4] DeKalb County Sheriff’s Department Deputies Larry Kees, Jarrid Treesh, and
Courtney Fuller responded to Thacker and Avery’s report. When they arrived,
they spoke with Mable Ellis (“Mable”), Ellis’s eighty-two-year-old mother and
the property owner, who gave her consent to search. The officers saw a light on
inside the shed in the backyard, heard voices, and smelled a chemical odor
similar to ammonia. Deputy Treesh knocked on the door to the shed and
opened the door. He saw two men seated in chairs, open beer bottles, and a
reaction vessel—a plastic bottle containing a white granular substance, black
flakes, and a bluish liquid, which the officers recognized as an active meth lab—
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between the two chairs. The men were later identified as Ellis and Tyler Cole.
Cole told the deputies he was “just there to clean out a garage,” and was
released. Tr. p. 190. He was later charged with and convicted of possessing
methamphetamine. Ellis told Deputy Treesh that Cole was showing him how
to manufacture methamphetamine.
[5] From the shed and a garbage can outside the shed, law enforcement officers
collected cold packs, Zippo lighter fluid, Coleman camp fuel, Liquid
Lightening, coffee filters, battery casings, Kleen Out, blister packs of
pseudoephedrine, and a “spent one-pot.” Tr. p. 278. They also searched the
bedroom in which Ellis and his wife were staying and found drug
paraphernalia, including a pipe, a measuring device, and needle nose pliers. On
a dresser in the bedroom, officers discovered a credit card bearing Ellis’s name
amid several “tin foilies,” which “are used a lot of times in the smoking of
methamphetamine . . . .” Id. In the sleeping compartment of Ellis’s semi,
which was parked at Mable’s house, officers found a bag of methamphetamine
between the wall of the cab and the mattress.
[6] The State charged Ellis with 1) Class A felony dealing in methamphetamine; 2)
Class B felony possession of methamphetamine; 3) Class C felony possession of
precursors; and 4) Class D felony possession of paraphernalia. A jury found
Ellis guilty of dealing in methamphetamine and possession of
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methamphetamine1 and found him not guilty of possession of paraphernalia.
The jury was unable to reach a verdict on the possession of precursors charge.
The trial court sentenced Ellis to twenty years for dealing in methamphetamine
concurrent with six years for possessing methamphetamine for an aggregate
sentence of twenty years in the Department of Correction.
Analysis
[7] Ellis contends the evidence is not sufficient to support his conviction for dealing
in methamphetamine because there is no direct evidence he was involved in
manufacturing the drug.2
When reviewing a claim of insufficient evidence, an appellate
court considers only the evidence most favorable to the verdict
and any reasonable inferences that may be drawn from that
evidence. If a reasonable finder of fact could determine from the
evidence that the defendant was guilty beyond a reasonable
doubt, then we will uphold the verdict. We do not reweigh the
evidence or judge the credibility of witnesses. These evaluations
are for the trier of fact, not appellate courts. In essence, we assess
only whether the verdict could be reached based on reasonable
inferences that may be drawn from the evidence presented.
1
Ellis does not challenge his conviction for possession of methamphetamine.
2
Ellis also contends his argument regarding the sufficiency of the evidence is “supported by the fact that the
jury was unable to conclude that the State proved its case against Ellis for Possession of Precursors With the
Intent to Manufacture Methamphetamine beyond a reasonable doubt.” Appellant’s Br. p. 11. Ellis candidly
concedes, however, that “logically inconsistent verdicts are not a basis in Indiana for vacating a conviction.”
Id.; See Beattie v. State, 924 N.E.2d 643, 644 (Ind. 2010) (holding “inconsistent verdicts are permissible and
not subject to appellate review . . . .”).
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Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (quotations omitted) (citations
omitted).
[8] The statute in effect at the time Ellis committed these crimes defined dealing in
methamphetamine as knowingly or intentionally manufacturing
methamphetamine, pure or adulterated. Ind. Code § 35-48-4-1.1. The offense
is a Class A felony if, as here, it is committed in, on, or within 1000 feet of a
public park or a family housing complex.3 Id.; App. p. 14. Indiana Code
Section 35-48-1-18 defines “manufacture” 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 syntheses, 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.
[9] Constructive possession of items used to manufacture methamphetamine is
sufficient to prove an appellant knowingly or intentionally manufactured the
drug. See Floyd v. State, 791 N.E.2d 206 (Ind. Ct. App. 2003), trans. denied
(citing Bush v. State, 772 N.E.2d 1020, 1022-23 (Ind. Ct. App. 2002)), trans.
denied). “A person constructively possesses an item when the person has (1) the
capability to maintain dominion and control over the item; and (2) the intent to
3
Ellis does not challenge the enhancement to a Class A felony.
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maintain dominion and control over it.” Sargent v. State, 27 N.E.3d 729, 733
(Ind. 2015) (citation omitted).
Where a person’s control over the premises where contraband is
found is non-exclusive, intent to maintain dominion and control
may be inferred from additional circumstances that indicate that
the person knew of the presence of the contraband. Additional
circumstances may include: (1) incriminating statements by the
defendant; (2) attempted flight or furtive gestures; (3) a drug
manufacturing setting; (4) proximity of the defendant to the
drugs or weapons; (5) drugs or weapons in plain view; and (6)
location of the drugs or weapons in close proximity to items
owned by the defendant.
Hardister v. State, 849 N.E.2d 563, 574 (Ind. 2006) (citations omitted).
[10] Ellis did not have exclusive control over the areas of Mable’s house in which
police found the reaction vessel and items commonly used to manufacture
methamphetamine. However, Ellis told Officer Treesh he “believed” the bottle
was a methamphetamine lab and that Cole was showing him how to
manufacture methamphetamine. Tr. pp. 237, 238. Police discovered Ellis
sitting with Cole and drinking a beer near the reaction vessel, which was in
plain view. Also in plain view in the shed were a number of items commonly
used to manufacture methamphetamine—a grinder coated with white residue,
Colman camping fuel, Liquid Fire, salt, tape, and tubes, blister packs of
pseudoephedrine, and battery casings. Police also discovered a bag of
methamphetamine in the sleeping area of semi in which Ellis essentially lives
for sometimes weeks at a time.
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[11] It is clear that Ellis knew of the presence of the reaction vessel; he told police he
believed it was methamphetamine. The jury could reasonably infer Ellis was
capable of maintaining dominion and control over the reaction vessel and items
used to manufacture methamphetamine based on his proximity to them.
Likewise, the jury could reasonably infer from Ellis’s statement that Cole was
showing him how to manufacture methamphetamine and his proximity to both
the reaction vessel and the items used to manufacture methamphetamine that
he had the intent to maintain dominion and control over those items. This
evidence was sufficient to prove Ellis had constructive possession of the
reaction vessel and the items frequently used to manufacture methamphetamine
and, therefore, is sufficient to support his conviction.
[12] Ellis argues that both he and Cole testified Ellis was not involved in
manufacturing methamphetamine and directs us to his own self-serving
testimony that Cole, not Ellis was responsible for the contraband. “The jurors
are the triers of fact, and in performing this function, they may attach whatever
weight and credibility to the evidence as they believe is warranted.” Parks v.
State, 734 N.E.2d 694, 700 (Ind. Ct. App. 2000), trans. denied. We may not
reweigh the evidence. Baker, 968 N.E.2d at 229.
Conclusion
[13] The evidence is sufficient to support Ellis’s conviction for Class A felony
dealing in methamphetamine. We affirm.
[14] Affirmed.
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Riley, J., and Bailey, J., concur.
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