MEMORANDUM DECISION
Feb 03 2015, 9:31 am
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.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Scott L. Barnhart Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Andrew Wedge, February 3, 2015
Appellant-Defendant, Court of Appeals Case No.
82A01-1403-CR-143
v. Appeal from the Vanderburgh
Superior Court; The Honorable Kelli
State of Indiana, E. Fink, Magistrate;
82C01-1304-FA-447
Appellee-Plaintiff.
May, Judge.
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[1] Andrew Wedge appeals his conviction of Class B felony manufacture of
methamphetamine. He presents two issues for our consideration:
[2] 1. Whether the trial court abused its discretion when it admitted evidence
regarding the contents of a storage unit used to manufacture methamphetamine;
and
[3] 2. Whether the State presented sufficient evidence to prove Wedge committed
Class B felony manufacture of methamphetamine.
[4] We affirm.
Facts and Procedural History
[5] On April 19, 2014, officers executing an arrest warrant for Wedge discovered drug
paraphernalia used to ingest methamphetamine, $376.00 in cash, a digital scale
and multiple items used to make methamphetamine at the residence in which
Wedge was staying. Based on information provided by Wedge, the investigation
turned to two storage units Wedge rented. In one of those storage units, police
found items used to make methamphetamine and 135 one pot vessels which
contained the remnants of methamphetamine manufacture.
[6] Based thereon, the State charged Wedge with two counts of Class B felony dealing
in methamphetamine,1 one alleging Wedge dealt methamphetamine and the other
alleging Wedge manufactured methamphetamine; Class D felony possession of
1
Ind. Code § 35-48-4-1.1 (2012).
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methamphetamine;2 Class A misdemeanor possession of paraphernalia; 3 and two
counts of Class D felony maintaining a common nuisance. 4 The jury found Wedge
guilty of all charges except for one dealing count.
Discussion and Decision
1. Admission of Evidence
[7] Wedge asserts the court abused its discretion by admitting photographs of the 135
one pot vessels used to manufacture methamphetamine. We typically review
admission of evidence for an abuse of discretion. Kindred v. State, 973 N.E.2d
1245, 1252 (Ind. Ct. App. 2012), trans. denied. Thus, we reverse only if the trial
court’s decision is clearly against the logic and effect of the facts and circumstances
before it. King v. State, 985 N.E.2d 755, 757 (Ind. Ct. App. 2013), trans. denied. We
will not reweigh evidence, and we will consider conflicting evidence in favor of the
trial court’s ruling. Id. However, we must also consider uncontested evidence
favorable to the defendant. Id.
[8] Error in the admission or exclusion of evidence is to be disregarded as harmless
unless it affects the substantial rights of a party. Id. The improper admission of
evidence is harmless when the conviction is supported by substantial independent
evidence of guilt that satisfies us that there is no substantial likelihood the
2
Ind. Code § 35-48-4-6.1(a) (2012).
3
Ind. Code § 35-48-4-8.3.
4
Ind. Code § 35-48-4-13(b) (2012).
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questioned evidence contributed to the conviction. Mathis v. State, 859 N.E.2d
1275, 1280 (Ind. Ct. App. 2007).
[9] Wedge asserts the photographs should have been inadmissible because the State
did not keep all of the vessels in evidence storage. Under the Fourteenth
Amendment to the United States Constitution, and Article I, Section 12 of the
Indiana Constitution, a criminal defendant has the right to examine physical
evidence in the State’s possession. “However, the State does not have ‘an
undifferentiated and absolute duty to retain and preserve all material that might be
of conceivable evidentiary significance in a particular prosecution.’” Terry v. State,
857 N.E.2d 396, 406 (Ind. Ct. App. 2006) (quoting Arizona v. Youngblood, 488 U.S.
51, 58 (1988)), trans. denied. When dealing with the destruction of evidence
involving hazardous chemicals and materials, tension arises between the practical
need for destruction and the prejudice to the substantial right of the defendant to
examine the physical evidence against him. Jones v. State, 957 N.E.2d 1033, 1037
(Ind. Ct. App. 2011).
[10] Ind. Code § 35-33-5-5(e) sets forth the requirements that must be satisfied prior to
the destruction of physical evidence of drug manufacturing:
A law enforcement agency may destroy or cause to be destroyed chemicals,
controlled substances, or chemically contaminated equipment (including drug
paraphernalia as described in IC 35–48–4–8.5) associated with the illegal
manufacture of drugs or controlled substances without a court order if all the
following conditions are met:
(1) The law enforcement agency collects and preserves a sufficient quantity of
the chemicals, controlled substances, or chemically contaminated equipment
to demonstrate that the chemicals, controlled substances, or chemically
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contaminated equipment was associated with the illegal manufacture of drugs
or controlled substances.
(2) The law enforcement agency takes photographs of the illegal drug
manufacturing site that accurately depict the presence and quantity of
chemicals, controlled substances, and chemically contaminated equipment.
(3) The law enforcement agency completes a chemical inventory report that
describes the type and quantities of chemicals, controlled substances, and
chemically contaminated equipment present at the illegal manufacturing site.
The photographs and description of the property shall be admissible into
evidence in place of the actual physical evidence.
[11] The police recovered 135 vessels that contained remnants from methamphetamine
manufacture, such as “the ammonium nitrate and lye mixture along with the
binder from the pills, . . . spent lithium, . . . [and] water that was added to further
the chemical process.” (Tr. at 126.) An officer testified he could not store the 135
vessels in an evidence storage locker because they were “hazardous.” (Id.) He
took pictures of the scene and inventoried all items found at the scene, including
items used to make methamphetamine such as: “16 boxes of pseudophed[rine], 12
gallon contain[er]s of solvent, 24 quart containers of solvent, 4 containers of lye, 4
boxes of cold packs, 2 salt, 1 Liquid Fire, lithium batteries, and 7 empty packages
of batteries.” (Id. at 113.)
[12] We need not determine whether the State failed to comply with Indiana Code § 35-
33-5-5(e) because any possible error in the admission of the photographs was
harmless. The State presented substantial independent evidence Wedge
manufactured methamphetamine. In the storage locker, the police found multiple
items used to manufacture methamphetamine. At the residence where Wedge was
arrested, police found items used to manufacture methamphetamine such as: coffee
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filters with methamphetamine in them, a container of camp fuel, eleven empty
boxes of pseudoephedrine and multiple empty pill blister packs, and a pH test kit.
This evidence was sufficient to prove Wedge manufactured methamphetamine,
and therefore any possible error in the admission of the photographs was harmless.
See Vanzyll v. State, 978 N.E.2d 511, 519 (Ind. Ct. App. 2012) (presence of multiple
items used in methamphetamine manufacture sufficient to prove Vanzyll
manufactured methamphetamine).
2. Sufficiency of the Evidence
[13] Wedge challenges only his conviction of Class B felony manufacturing
methamphetamine.
When reviewing the sufficiency of the evidence to support a
conviction, appellate courts must consider only the probative evidence
and reasonable inferences supporting the verdict. It is the fact-finder’s
role, not that of appellate courts, to assess witness credibility and
weigh the evidence to determine whether it is sufficient to support a
conviction. To preserve this structure, when appellate courts are
confronted with conflicting evidence, they must consider it most
favorably to the trial court’s ruling. Appellate courts affirm the
conviction unless no reasonable fact-finder could find the elements of
the crime proven beyond a reasonable doubt. It is therefore not
necessary that the evidence overcome every reasonable hypothesis of
innocence. The evidence is sufficient if an inference may reasonably
be drawn from it to support the verdict.
[14] Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (quotations, citation, and
footnote omitted) (emphasis in original). Wedge argues there was no physical
evidence he manufactured methamphetamine because the State presented only
photographic evidence of the one pot vessel manufacturing method. As noted
above, the presence of numerous precursors used in the manufacture of
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methamphetamine – including “16 boxes of pseudophed[rine], 12 gallon
contain[er]s of solvent, 24 quart containers of solvent, 4 containers of lye, 4 boxes
of cold packs, 2 salt, 1 Liquid Fire, lithium batteries, and 7 empty packages of
batteries,” (Tr. at 113) – is sufficient to prove Wedge committed Class B felony
manufacture of methamphetamine. See Vanzyll v. State, 978 N.E.2d 511, 519 (Ind.
Ct. App. 2012) (presence of multiple items used in methamphetamine manufacture
sufficient to prove Vanzyll manufactured methamphetamine).5
Conclusion
[15] Any error in the admission of the photographs of the 135 one pot vessels was
harmless, as there was substantial evidence independent of those photographs to
prove Wedge committed Class B felony manufacturing methamphetamine.
Additionally, the State presented sufficient evidence to prove Wedge committed
Class B felony manufacturing methamphetamine. Accordingly, we affirm.
[16] Affirmed.
5
In his brief, Wedge states he appeals “his convictions for [sic] dealing methamphetamine as a class B felony
and maintaining a common nuisance as class D felonies [sic].” (Br. of Appellant at 2.) Wedge provides no
argument regarding his convictions of Class D felony maintaining a common nuisance, and thus that portion
of his argument is waived. See Matheney v. State, 688 N.E.2d 883, 907 (Ind. 1997) (failure to make a cogent
argument results in waiver of that argument). Waiver notwithstanding, we hold the State presented sufficient
evidence Wedge committed one count of Class D felony maintaining a common nuisance based on the
evidence Wedge used the storage unit to manufacture methamphetamine and the other count of Class D
felony maintaining a common nuisance based on the methamphetamine precursors such as pseudoephedrine
packs and camping fuel found where Wedge was staying. See Ind. Code § 35-48-4-13(b) (2012) (a person
who knowingly or intentionally maintains a building that is used one or more times for the manufacture of a
controlled substance commits Class D felony maintaining a common nuisance).
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Vaidik, C.J., and Friedlander, J., concur.
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Andrew Wedge v. State of Indiana (mem. dec.)
Combined Opinion