Pursuant to Ind. Appellate Rule 65(D),
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. Oct 17 2014, 8:41 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PAUL J. PODLEJSKI GREGORY F. ZOELLER
Anderson, Indiana Attorney General of Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
THOMAS BOARDMAN, )
)
Appellant-Defendant, )
)
vs. ) No. 48A02-1401-CR-8
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Thomas Newman, Jr., Judge
Cause No. 48C03-1308-FB-1534
October 17, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Thomas Boardman (“Boardman”) was convicted Madison Circuit Court of two
counts of Class B felony dealing in methamphetamine, one count of Class D felony
possession of chemical reagents or precursors with intent to manufacture a controlled
substance, and Class B misdemeanor false informing. Boardman appeals his
methamphetamine-related convictions arguing that the evidence is insufficient to support
his convictions.
We affirm.
Facts and Procedural History
In early August 2013, Boardman accompanied his friend, Jacob Dial (“Dial”) from
Missouri to Indiana because Dial, who resided in both states, had a doctor’s appointment
in Elwood. When they arrived in Indiana, Boardman purchased numerous items from
Walmart and a dollar store. Dial purchased Sudafed from Walgreens. Boardman and
Dial stayed at 1019 North 11th Street in Elwood, a vacant home owned by Dial’s
daughter.
On August 9, 2013, Captain Jason Brizendine of the Madison County Drug Task
Force (“Captain Brizendine”) received a tip that methamphetamine was being
manufactured at 1019 North 11th Street. Captain Brizendine and Elwood Police Officer
Bert Chambers proceeded to the home to investigate.
Dial responded to the knock on the front door and came out of the house to speak
with the officers. Dial told the officers no one else was in the house and he did not know
who owned the property. However, he later admitted that his daughter owned the house.
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Shortly thereafter, Boardman, who was inside the house, came to the front door.
When asked, Boardman falsely told the officers that his name was Justin. He appeared to
be nervous and could not recall his birth date or social security number.
The officers contacted Dial’s daughter. She came to the house and gave the
officers consent to search. The house was extremely cluttered with trash and various
household items. As the officers entered the kitchen, the smelled a strong chemical odor
associated with the manufacture of methamphetamine.
A search of the kitchen revealed drain cleaner, Coleman fuel, salt, cold packs
containing ammonium nitrate, tools commonly used to cut batteries open to obtain
lithium, and a plastic bottle. The officers also found an eyeglasses case containing seven
small individual baggies of a white powder later identified as methamphetamine. Captain
Brizendine also found a glass jar containing a liquid with a coffee filter sitting on top.
The liquid later tested positive for the presence of methamphetamine. In the bathroom,
the officers found a plastic bottle with plastic tubing, which is used as an HCl generator
in the manufacture of methamphetamine.
The State charged Boardman with two counts of Class B felony dealing in
methamphetamine, Class D felony possession of chemical reagents or precursors with
intent to manufacture a controlled substance and Class B misdemeanor false informing.
A three-day jury trial commenced on November 12, 2013.
At trial, Captain Brizendine described the one-pot process of manufacturing
methamphetamine and testified that methamphetamine had been manufactured inside the
house within hours of the officers’ arrival. Tr. p. 254. Dial, who was granted immunity
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for the testimony given at Boardman’s trial, testified that Boardman told Dial that he had
“dope” and he wanted to get rid of it. Tr. p. 388. However, Dial claimed that he was
unaware that there was methamphetamine in the home and he did not know where the
items used to manufacture methamphetamine came from.
A neighboring homeowner, Kaylee Kelly (“Kelly”) stated that Dial told her to
keep her children away from the house because “they were manufacturing.” Tr. p. 428.
Kelly also testified that the tenant residing in the home’s adjacent garage apartment told
her that Dial asked him to purchase Sudafed. Tr. pp. 439-40. Dial also admitted to
purchasing Sudafed. Finally, Kelly testified that she saw Boardman in front of the house
giving a white substance wrapped in cellophane to an individual on a moped. Tr. p. 430-
33.
The jury found Boardman guilty as charged. A sentencing hearing was held on
December 2, 2013. Boardman was sentenced to concurrent terms on all four counts, and
he received an aggregate sentence of ten years executed. Boardman now appeals.
Discussion and Decision
When the sufficiency of evidence is challenged, we neither reweigh the evidence
nor judge the credibility of witnesses. Chappell v. State, 966 N.E.2d 124, 129 (Ind. Ct.
App. 2012) (citing McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)), trans. denied.
Rather, we recognize the exclusive province of the trier of fact to weigh any conflicting
evidence and we consider only the probative evidence supporting the conviction and the
reasonable inferences to be drawn therefrom. Id. If there is substantial evidence of
probative value from which a reasonable trier of fact could have drawn the conclusion
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that the defendant was guilty of the crime charged beyond a reasonable doubt, then the
verdict will not be disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind. Ct. App.
2008).
Boardman was convicted of possessing methamphetamine “with intent to deliver”,
knowingly or intentionally manufacturing methamphetamine, and possessing two or more
chemical reagents or precursors with intent to manufacture methamphetamine. See
Appellant’s App. pp. 4-5; see also Ind. Code §§ 35-48-4-1.1(a), 35-48-4-14.5(e). He
argues that the evidence was insufficient to support his convictions because the State
failed to prove his intent to maintain control and dominion over the methamphetamine,
chemical reagents, and precursors found during the search of the house.
A conviction for possession of contraband may rest upon proof of either actual or
constructive possession. See Britt v. State, 810 N.E.2d 1077 (Ind. Ct. App. 2004).
“Actual possession occurs when the defendant has direct physical control over the item,
while constructive possession involves the intent and capability to maintain control over
the item even though actual physical control is absent.” Id. at 1082.
“Constructive possession will support a possession conviction if the State shows
that the defendant had both the capability and the intent to maintain dominion and control
over the contraband.” White v. State, 772 N.E.2d 408, 413 (Ind. 2002). “Where control
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.” Id.
Additional circumstances include: 1) incriminating statements made by the defendant; 2)
attempted flight or furtive gestures; 3) a drug manufacturing setting; 4) proximity of the
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defendant to the drugs; 5) drugs in plain view; and 6) drugs in close proximity to items
owned by the defendant. Allen v. State, 798 N.E.2d 490, 501 (Ind. Ct. App. 2003).
In this case, Boardman and Dial were staying in the vacant home owned by Dial’s
daughter while they were in Elwood. Boardman told Dial that he had “dope” and wanted
to get rid of it. Tr. p. 388. Dial told neighbor Kaylee Kelly to keep her children away
from the house because “they were manufacturing.” Tr. p. 428. That same day, Kelly
saw Boardman hand a cellophane wrapped package containing a white substance to a
man on a moped. Kelly also testified that she smelled an odor she knew to be associated
with the manufacture of methamphetamine emanating from the house. Tr. pp. 434-35.
Captain Brizendine and Officer Bert Chambers received a tip that someone was
manufacturing methamphetamine at the home. They proceeded to the home to
investigate and Boardman initially lied to the officers about his name and identifying
information. Boardman also seemed nervous. The officers entered the home after they
obtained consent from Dial’s daughter and noted a strong chemical odor associated with
the manufacture of methamphetamine. Captain Brizendine testified that based on the
strength of the smell, he believed that methamphetamine had been “cooked” in the house
no more than ten hours before the officers arrived. Tr. p. 254.
In the kitchen, Captain Brizendine found a glass jar containing liquid with a coffee
filter on the top. The liquid in the jar field tested positive for the presence of
methamphetamine. Tr. p. 257. Captain Brizendine also found a Budweiser beer box near
the kitchen counter, which contained the following chemical reagents and precursors used
in the manufacture of methamphetamine: sulfuric acid, Coleman fuel, cold packs
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containing ammonium nitrate, sodium hydroxide, salt, and tools used to strip lithium
from batteries.
In the Budweiser box, the officers also found a baseball cap containing a box of
cigarettes and an eyeglasses case. Dial testified that the baseball cap and cigarettes were
the type Boardman owned. Tr. p. 384. The eyeglasses case contained several
individually wrapped packages of methamphetamine. Tr. p. 262. Captain Brizendine
testified that methamphetamine is usually packaged individually when it is intended “for
sale.” Tr. p. 264. Finally, in the bathroom, Captain Brizendine found an HCl generator,
i.e. where sulfuric acid and salt are combined to produce hydrochloric acid gas, which is
used in the manufacture of methamphetamine. Tr. p. 262. From this evidence, Captain
Brizendine concluded that methamphetamine had been manufactured at the residence.
This evidence establishes that Boardman had the capability and the intent to
maintain dominion and control over the methamphetamine, chemical reagents and
precursors found in the house. See White, 772 N.E.2d at 413. And the State proved that
methamphetamine had been manufactured inside the house within hours of the officers’
arrival. For all of these reasons, we conclude that sufficient evidence supports
Boardman’s convictions for two counts of Class B felony dealing in methamphetamine
and one count of Class D felony possession of chemical reagents or precursors with intent
to manufacture a controlled substance.
Affirmed.
FRIEDLANDER, J., and MAY, J., concur.
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