Apr 21 2015, 10:00 am
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Steven E. Ripstra Gregory F. Zoeller
Ripstra Law Office Attorney General of Indiana
Jasper, Indiana
Brian Reitz
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brian L. Harrison, April 21, 2015
Appellant-Defendant, Court of Appeals Case No.
74A01-1407-CR-328
v. Appeal from the Spencer Circuit
Court
State of Indiana, The Honorable Wayne A. Roell,
Special Judge
Appellee-Plaintiff.
Cause No. 74C01-1301-FB-020
Mathias, Judge.
[1] Brian Lee Harrison (“Harrison”) was convicted in Spencer Circuit Court of Class
B felony dealing in methamphetamine, Class D felony illegal possession of
anhydrous ammonia, Class D felony possession of chemical reagents or
precursors with the intent to manufacture methamphetamine, and Class A
misdemeanor possession of paraphernalia. Harrison also admitted to being an
habitual offender and was sentenced to an aggregate term of thirteen years of
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incarceration. Harrison appeals and presents seven issues, which we reorder and
restate as:
I. Whether the State presented sufficient evidence to support Harrison’s
convictions;
II. Whether Harrison’s convictions for possession of ammonia and
possession of precursors are lesser-included offenses of the greater offense
of manufacturing methamphetamine;
III. Whether the trial court abused its discretion in admitting into evidence
information from a mobile phone the police seized from Harrison’s car;
IV. Whether the trial court abused its discretion in refusing to give Harrison’s
proffered jury instruction on an alibi defense and in instructing the jury
with regard to the charged offense of possession of precursors;
V. Whether the trial court abused its discretion by admitting evidence
regarding certain telephone calls, one of which was made by Harrison
while he was in jail;
VI. Whether the trial court abused its discretion in permitting the prosecuting
attorney to read language from a published opinion of this court during
the State’s closing argument; and
VII. Whether the trial court abused its discretion when it admitted evidence of
Harrison’s nickname, “Bam Bam.”
[2] We reverse Harrison’s convictions for possession of anhydrous ammonia and
possession of precursors as they constitute lesser-included offenses of the greater
offense of manufacturing methamphetamine but affirm Harrison’s convictions
for manufacturing methamphetamine and possession of paraphernalia.
Facts and Procedural History
[3] On January 28, 2013, Spencer County Sheriff’s Deputy Jim Taggart (“Deputy
Taggart”) was driving his patrol car on a county road when he saw two vehicles,
a black Pontiac and a white pickup truck, stopped in the road. The two vehicles
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drew Deputy Taggart’s attention, as he thought that the truck may have collided
with the rear-end of the Pontiac. Instead, the pickup drove away and turned right
at a nearby stop sign. Deputy Taggart drove past the Pontiac and observed it in
his rear-view mirror. As he did so, the Pontiac quickly accelerated in reverse up a
hill. The driver of the Pontiac lost control of the car, drove it into a ditch, and hit
a log, which bounced the car into the air. The car then came to a stop in the
ditch. Deputy Taggart turned his patrol car around to approach the crashed
Pontiac.
[4] A passenger in the car, later identified as Jason Gee (“Gee”), exited the car, ran
across the road, and disappeared into a wooded area. The driver of the car, later
identified as Harrison, managed to climb out of the driver’s side door, which was
wedged against the ditch, and also fled into the wooded area.
[5] Deputy Taggart exited his patrol car, walked toward the Pontiac, and saw smoke
coming from the front passenger floorboard. He then saw a small fire located
next to a tank in the car and a clear container with a white powder inside.
Deputy Taggart put out the fire. He then noticed that a mobile phone, located in
the console, had been ringing. Deputy Taggart opened the phone and read to
dispatch the numbers that had been calling the phone in the car. Deputy Taggart
also looked through the text messages on the phone.
[6] Deputy Taggart then began to search the vehicle, where he found a bag
containing a scale and a leather wallet. The wallet contained an Indiana
identification card, an Indiana Department of Correction card, a debit card, a
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casino card, and a resort card, all of which identified Harrison. A spoon and
cigarette rolling papers were also found in the car.
[7] Indiana State Police Trooper Ted Clamme (“Trooper Clamme”) of the
clandestine laboratory clean-up team was dispatched to the scene. Trooper
Clamme described what he saw in the vehicle as a “very early stage”
methamphetamine lab, using the “Nazi method.” Tr. P. 209. Trooper Clamme
found in the car several items used in the manufacture of methamphetamine,
including: 24.31 grams of pseudoephedrine, crushed pseudoephedrine pill
powder, a tank of ammonia, a bottle of “Heet” (an isopropyl alcohol-based anti-
freeze agent), syringes, a glass jar, plastic tubing, and a measuring spoon.
Trooper Clamme explained that every item needed for the manufacture of
methamphetamine was present, save lithium. However, he explained that the
lithium could have been destroyed in the fire.
[8] In the meantime, Kati Richard (“Richard”), the 911 director for the Spencer
County Sheriff’s Department, was at home when she received a telephone call
from dispatch to warn her that her house was near the area where the suspects in
the Pontiac had fled. Shortly thereafter, Richard’s dog began to bark; she looked
outside and saw Harrison sitting in the woods near her house.1 Richard then
called dispatch to tell them she had found one of the potential suspects.
However, Harrison was not apprehended at that time.
1
Richard’s brother was a childhood friend of Harrison’s.
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[9] Gee was taken into custody later that day. Harrison was arrested at a later date
and eventually charged with Class B felony manufacture of methamphetamine,
Class D felony illegal possession of anhydrous ammonia, Class D felony
possession of precursors with intent to manufacture methamphetamine, and
Class A misdemeanor possession of paraphernalia. The State also alleged that
Harrison was an habitual offender.
[10] At trial, the State introduced into evidence, over Harrison’s objection, a recorded
telephone conversation he had with Gee while in jail. In the call, Harrison stated,
“I’m kind of hurt, man but — got f**king ammonia. I think I have ammonia in
my lungs.” Appellant’s App. p. 243. Harrison was also occasionally referred to at
trial by his nickname, “Bam Bam.” Tr. pp. 7, 9, 152, 166-68, 170-71. Harrison
objected to some of these references but not all. See Tr. pp. 152, 170-71. At the
close of the evidence, the trial court read the pattern jury instruction regarding
the charged crime of possession of precursors, to which Harrison objected. The
trial court also refused to read to the jury Harrison’s tendered alibi instruction.
During the State’s closing argument, the trial court overruled Harrison’s
objection to the prosecuting attorney reading a portion of this court’s opinion in
Dawson v. State, 786 N.E.2d 742 (Ind. Ct. App. 2003), which dealt with the
definition of manufacturing methamphetamine. The jury found Harrison guilty
as charged, and the trial court subsequently sentenced Harrison to an aggregate
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term of thirteen years of incarceration.2 Harrison now appeals.
I. Sufficiency of the Evidence
[11] Harrison first claims that the evidence is insufficient to support his conviction for
manufacturing methamphetamine.3 When reviewing a claim that the evidence is
insufficient to support a conviction, we neither reweigh the evidence nor judge
the credibility of the witnesses; instead, we respect the exclusive province of the
trier of fact to weigh any conflicting evidence. McHenry v. State, 820 N.E.2d 124,
126 (Ind. 2005). We consider only the probative evidence supporting the verdict
and any reasonable inferences which may be drawn from this evidence. Id. We
will affirm if the probative evidence and reasonable inferences drawn from the
evidence could have allowed a reasonable trier of fact to find the defendant guilty
beyond a reasonable doubt. Id.
A. Manufacturing Methamphetamine
[12] The statute defining the crime of manufacturing methamphetamine provides in
relevant part that “(a) A person who . . . knowingly or intentionally . . .
2
Specifically, the trial court sentenced Harrison to the advisory term of ten years on his conviction for
Class B felony manufacturing methamphetamine, the advisory term of one and one-half years on the
Class D felony convictions for possession of precursors and possession of anhydrous ammonia, and one
year on the conviction for Class A misdemeanor possession of paraphernalia. The trial court ordered all
of the sentences to run concurrently. The trial court also imposed a three-year sentence for the habitual
offender adjudication, which it ordered be served consecutively to the other sentences.
3
Harrison claims generally that the evidence is insufficient to support his convictions. However, he
focuses his argument solely on the sufficiency of the evidence supporting his conviction for
manufacturing methamphetamine.
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manufactures . . . methamphetamine, pure or adulterated . . . commits dealing in
methamphetamine, a Class B felony[.]” Ind. Code § 35-48-4-1.1(a).4
[13] Harrison claims that he was never found in actual possession of any of the items
found in the car and that the State therefore was required to prove constructive
possession. Harrison, however, was not charged with or convicted of possession of
methamphetamine under section 35-48-4-1.1(a)(2); he was charged with and
convicted of manufacturing methamphetamine under section 35-48-4-1.1(a)(1).
See Appellant’s App. p. 13 (“Harrison did knowingly or intentionally
manufacture methamphetamine[.]”); Appellant’s App. p. 216 (final instruction
setting forth elements of manufacturing methamphetamine).
[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 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.
No statutory requirement states that the manufacturing process must be
completed or that a final product must be present before it applies. Vanzyll v.
State, 978 N.E.2d 511, 518 (Ind. Ct. App. 2012); Bush v. State, 772 N.E.2d 1020,
1022-23 (Ind. Ct. App. 2002).
4
We refer to the version of the statute in effect when Harrison committed his crimes.
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[15] Here, Harrison’s mobile phone, wallet, and identification were located inside the
car. The police found in the car a total of 24.31 grams of pseudoephedrine,
crushed pseudoephedrine pill powder, a tank of ammonia, a bottle of “Heet,”
syringes, a glass jar, plastic tubing, and a measuring spoon, constituting every
methamphetamine precursor except lithium. Trooper Clamme identified the set
up in the car as an early-stage methamphetamine lab. From this circumstantial
evidence, the jury could reasonably conclude that Harrison manufactured
methamphetamine, even though no final product was present. See Bush, 772
N.E.2d at 1022-23.
B. Constructive Possession of Precursors
[16] To the extent that Harrison’s argument regarding constructive possession is
directed at his conviction for possession of precursors, sufficient evidence
sufficient supports a finding that Harrison constructively possessed the
precursors. Constructive possession is established by showing that the defendant
has both the intent and capability to maintain dominion and control over the
contraband. Floyd v. State, 791 N.E.2d 206, 210-11 (Ind. Ct. App. 2003), trans.
denied. In cases where the accused has exclusive possession of the premises on
which the contraband is found, an inference is permitted that he or she knew of
the presence of contraband and was capable of controlling it. Id. However, when
possession of the premises is non-exclusive, this inference is permitted only if
some additional circumstances indicate the defendant’s knowledge of the
presence of the contraband and the ability to control it. Id. Among the
recognized additional circumstances are: (1) incriminating statements made by
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the defendant; (2) attempted flight or furtive gestures; (3) a drug manufacturing
setting; (4) proximity of the defendant to the contraband; (5) the contraband
being in plain view; and (6) the location of the contraband being in close
proximity to items owned by the defendant. Id.
[17] Here, the precursors were found in Harrison’s vehicle, but Gee was also in the
car with him. Thus, Harrison’s possession of the premises was non-exclusive,
and additional circumstances must indicate Harrison’s knowledge of the
presence of the contraband and the ability to control it. See id. Here, these
circumstances include: (1) Harrison made statements that he had ammonia in his
lungs; (2) Harrison fled the vehicle as Deputy Taggart approached it; (3) the
precursors were found in an early-stage methamphetamine lab; (4) the
methamphetamine lab was in plain view in the front floorboard of the vehicle;
and (5) Harrison’s mobile phone and wallet were found in close proximity to the
methamphetamine lab. From this, the jury could reasonable conclude that
Harrison constructively possessed the precursors found in the vehicle.
II. Lesser Included Offenses
[18] Harrison also claims that, even if the evidence was sufficient to support his
conviction for manufacturing methamphetamine, his convictions for possession
of anhydrous ammonia and possession of precursors with the intent to
manufacture are lesser-included offenses that must be vacated.
[19] Indiana Code section 35-38-1-6 provides that if a defendant is charged with an
offense and an included offense in separate counts and is found guilty of both
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counts, “judgment and sentence may not be entered against the defendant for the
included offense.” An “included offense” is defined as an offense that:
(1) is established by proof of the same material elements or less
than all the material elements required to establish the commission
of the offense charged;
(2) consists of an attempt to commit the offense charged or an
offense otherwise included therein; or
(3) differs from the offense charged only in the respect that a less
serious harm or risk of harm to the same person, property, or
public interest, or a lesser kind of culpability, is required to
establish its commission.
Ind. Code § 35-41-1-16. A lesser-included offense is necessarily included within
the greater offense if it is impossible to commit the greater offense without first
having committed the lesser offense. Bush, 772 N.E.2d at 1023-24. If the
evidence indicates that one crime is independent of another crime, it is not an
included offense. Iddings v. State, 772 N.E.2d 1006, 1017 (Ind. Ct. App. 2002).
[20] The possession of precursors can be a lesser-included offense of the greater crime
of manufacturing methamphetamine. As we explained in Bush:
We accept that it is impossible to knowingly or intentionally
manufacture methamphetamine without first possessing the
chemical precursors of methamphetamine with the intent to make
the drug. Methamphetamine cannot be conjured up out of thin
air. The sole practical difference between these two offenses is
that one may be guilty of possessing chemical precursors with
intent to manufacture without actually beginning the
manufacturing process, whereas the manufacturing process must,
at the very least, have been started by a defendant in order to be
found guilty of manufacturing methamphetamine.
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772 N.E.2d at 1024.
[21] In Bush, we held that the defendant’s conviction for possession of precursors had
to be vacated because no direct evidence recovered indicated that Bush had yet
succeeded in completing a “batch” of the drug. Id. Thus, we held that the same
evidence establishing Bush knowingly or intentionally manufactured
methamphetamine also established that he possessed methamphetamine
precursors with the intent to manufacture the drug. Id. “It [was] impossible to
fairly state that the manufacturing and possession of precursors offenses in [Bush]
were clearly independent of each other.” Id.
[22] In contrast, in Iddings, a case handed down the same day as Bush, we came to the
contrary conclusion. In Iddings, the police recovered completed
methamphetamine at Iddings’ home in addition to precursors in large quantities
and in proximity to other items associated with manufacturing
methamphetamine manufacturing. 772 N.E.2d at 1017. Thus, evidence existed
that Iddings had already manufactured methamphetamine and possessed the
chemical precursors of methamphetamine with the intent to manufacture more
of the drug, such that his conviction for possession of precursors was not
included in his conviction for manufacturing methamphetamine. Id.
[23] In the present case, we agree with Harrison that the facts of the present case are
closer to those in Bush than in Iddings. Here, unlike in Iddings, no evidence of a
completed manufacture of methamphetamine existed. Instead, the police found
an early-stage methamphetamine manufacturing process that contained no actual
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methamphetamine. Thus, as in Bush, it is impossible to fairly state that the
manufacturing and possession of precursors offenses are clearly independent of
each other. We therefore reverse Harrison’s convictions for possession of
anhydrous ammonia and possession of precursors and remand with instructions
that the trial court vacate the convictions and sentences on these counts.
II. Admission of Evidence Discovered on Mobile Phone
[24] Harrison also claims that the trial court abused its discretion in admitting into
evidence information gleaned from the mobile phone found in the console of
Harrison’s car. 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). 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 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.
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[25] Both the Fourth Amendment to the United States Constitution and Article I,
Section 11 of the Indiana Constitution provide that “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. 1 § 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.
[26] It has long been held that abandoned property is not subject to Fourth
Amendment protection. Campbell v. State, 841 N.E.2d 624, 627 (Ind. Ct. App.
2006); Wilson v. State, 825 N.E.2d 49, 51 (Ind. Ct. App. 2005); Miller v. State, 498
N.E.2d 53, 55 (Ind. Ct. App. 1986), trans. denied. The same is true under Article
1, Section 11 of the Indiana Constitution. See Campbell, 841 N.E.2d at 627.
However, this rule is inapplicable if the abandonment occurs after an improper
detention.
[27] Here, it is clear that both Harrison and Gee abandoned the car and fled into the
woods upon seeing Deputy Taggart. Nor did Harrison abandon his property after
an improper detention; they fled as Deputy Taggart approached to investigate the
wreck of the Pontiac in the ditch. Accordingly, Harrison cannot now claim that
he had a protectable interest in the abandoned mobile phone. See Campbell, 841
N.E.2d at 630 (holding that defendant abandoned handgun underneath car
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before he was seized and therefore the handgun was not subject to protections of
Fourth Amendment or Article 1, Section 11); People v. Daggs, 34 Cal. Rptr. 3d
649, 651 (Cal. Ct. App. 2005) (holding that defendant abandoned cell phone
which he left behind in a store after fleeing when being confronted for attempting
to steal merchandise and therefore police did not unconstitutionally search phone
to determine the owner of the phone); United States v. Washington, 536 Fed. Appx.
810, 812 (10th Cir. 2013) (holding that defendant had no reasonable expectation
of privacy in cellular phone left in motel room), cert. denied, 134 S. Ct. 1328
(2014).
III. Jury Instructions
[28] Harrison next argues that the trial court erred in instructing the jury. The
instruction of the jury lies within the trial court’s sound discretion, and we review
the trial court decisions with regard to jury instructions only for an abuse of that
discretion. Shelby v. State, 986 N.E.2d 345, 360 (Ind. Ct. App. 2013), trans. denied.
To constitute an abuse of discretion, an instruction that is given to the jury must
be erroneous, and the instructions viewed as a whole must misstate the law or
otherwise mislead the jury. Winkleman v. State, 22 N.E.3d 844, 849 (Ind. Ct.
App. 2014), trans. denied. In determining whether the trial court abused its
discretion when it refused to give a tendered instruction we consider: (1) whether
the instruction correctly states the law; (2) whether there is evidence in the record
supporting the instruction; and (3) whether the substance of the instruction is
covered by other instructions. Shelby, 986 N.E.2d at 360. When a defendant seeks
reversal based on instructional error, he must demonstrate a reasonable
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probability that substantial rights of the complaining party have been adversely
affected. Id.
A. Precursors Instruction
[29] Harrison first challenges the propriety of the instruction given by the trial court
regarding possession of precursors. This instruction stated:
The crime of possessing chemical reagents or precursors with the
intent to manufacture a controlled substance is defined by statute
as follows:
A person who possesses two or more chemical reagents or
precursors with the intent to manufacture a controlled substance
commits a Class D felony.
Before you may convict the Defendant, the State must have
proved each of the following beyond a reasonable doubt:
1. The Defendant;
2. possessed 2 or more of the following: pseudoephedrine,
which the Court instructs you is a chemical reagent, the salts,
isomers, and salts of isomers of a substance identified in
subdivisions (1) through (3), which the Court instructs you is a
chemical reagent, anhydrous ammonia or ammonia solution (as
defined in I.C. 22-11-20-1), which the Court instructs you is a
chemical reagent, organic solvents, which the Court instructs you is
a chemical reagent, or hydrochloric acid, which the Court instructs
you is a chemical reagent.
3. with the intent to manufacture methamphetamine.
If the State failed to prove each of these elements beyond a
reasonable doubt, you should find the Defendant not guilty of
possession chemical reagents or precursors with intent to
manufacture a controlled substance, as Class D felony.
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Appellant’s App. p. 220 (emphasis added). Harrison claims that this instruction
improperly infringed upon the right of the jury to determine both the law and the
facts with regard to the definition of a precursor. We disagree.
[30] We first note that the instruction, which is taken from the Indiana pattern jury
instruction,5 is a correct statement of the law. Indiana Code section 35-48-4-14.5
defines what substances are precursors. Included among these are:
pseudoephedrine, or the salt, isomer, or salt of isomer of pseudoephedrine;
anhydrous ammonia or ammonia solution; and organic solvents. See I.C. § 35-
48-4-14.5(a)(2), (4), (5), (6). Thus, the definition of a chemical precursor is
established by statute, not the jury. See Russell v. State, 182 Ind. App. 386, 401,
395 N.E.2d 791, 800-01 (1979) (noting that statute defined marijuana as a
controlled substance and that trial court therefore had a duty to instruct the jury
that marijuana was a controlled substance). The question for the jury was not
whether pseudoephedrine, organic solvents, or ammonia are controlled
substances; this is established as a matter of law by statute. The question for the
jury was whether Harrison possessed two or more of those substances with the
intent to manufacture methamphetamine.
5
The State appears to argue that the instruction must be a correct statement of the law because it was
taken from the Indiana Pattern Jury Instructions. We note, however, that pattern jury instructions have
not been formally approved by the Indiana Supreme Court, and certain pattern instructions have even
been held to not be a correct statement of the law. See Clay City Consol. School Corp. v. Timberman, 918
N.E.2d 292, 295 (Ind. 2009); Boney v. State, 880 N.E.2d 279, 294 (Ind. Ct. App. 2008). Still, pattern jury
instructions are given preferential treatment during litigation, and the preferred practice is to use the
pattern instructions. See Timberman, 918 N.E.2d at 295; Boney, 880 N.E.2d at 294.
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[31] With regard to Harrison’s argument that this impedes upon the jury’s right to
determine the law and the facts in a criminal case, we note that the jury was
properly instructed with regard to this role. See Appellant’s App. p. 215. Our
supreme court has held that the jury’s right to determine both the law and the
facts does not mean that the jury may ignore the law. See Holden v. State, 788
N.E.2d 1253, 1255 (Ind. 2003) (noting that it is improper for a court to instruct a
jury that they have a right to disregard the law and that, notwithstanding Article
1, Section 19 of the Indiana Constitution, a jury has no more right to ignore the
law than it has to ignore the facts in a case), aff’d on reh’g, 799 N.E.2d 538.
[32] Accordingly, we are unable to conclude that the trial court abused its discretion
in instructing the jury with regard to chemical precursors.
B. Tendered Alibi Instruction
[33] Harrison also claims that the trial court abused its discretion in refusing to give to
the jury his tendered alibi instruction, which stated: “you have heard evidence
that at the time of the crime charged the accused was at a different place so
remote or distan[t] that he could not have committed the crime. [The] State must
prove beyond a reasonable doubt the accused’s presence at the time and place of
the crime.” Tr. p. 524.6 Regardless of whether this is a correct statement of the
law, we conclude that no evidence in the record supports the instruction and that
the substance of the instruction was covered by other instructions.
6
Harrison’s proffered instruction was not included in the Appellant’s Appendix, but the trial court read
the proposed instruction into the transcript.
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[34] With regard to the evidence supporting the instruction, Harrison simply notes
that the charging information did not set forth the specific time of day that the
crime took place and that the State’s witnesses who identified him at or near the
scene of the crime did not establish the time of day. This, however, ignores the
fact that the parties stipulated that the incident occurred at 12:30 p.m. Tr. pp.
494-95. As Harrison admits, the State presented evidence indicating that he was
at the scene of the crime.
[35] Harrison claims evidence existed supporting the giving of an alibi instruction,
referring to his notice of alibi and the testimony of his ex-girlfriend Tasha
Hatfield (“Hatfield”). According to the notice of alibi, Harrison and Hatfield
were in Owensboro, Kentucky at the time of the crime. Specifically, the notice
claimed that Harrison drove to Owensboro at approximately noon to take
Hatfield home from the hospital, then drove her to her place of employment,
stopped to eat in Owensboro, drove to Rockport where Harrison filled
prescriptions, then returned to Hatfield’s home in Grandview, Indiana, where
they picked up Hatfield’s daughter at the school bus stop at 3:20 p.m.
[36] At trial, however, Hatfield did not corroborate the claims made in the notice of
alibi. Hatfield testified that she fainted at work on the day of the crime and was
taken to the hospital. She also stated that Harrison picked her up from the
hospital and that they filled a prescription at approximately 10:50 a.m. Harrison
then drove her home, which was approximately ten minutes away. She claimed
that she and Harrison fell asleep at approximately 11:30 a.m., and that when she
awoke at approximately 2:30 p.m., Harrison was not there. Even if this evidence
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were credited, it does not mean that Harrison could not have been at the scene of
the crime at 12:30 p.m. while Hatfield was asleep. Under these facts and
circumstances, we cannot say evidence supported the giving of Harrison’s
tendered alibi instruction.
[37] Furthermore, other given instructions adequately explained to the jury that the
State had to prove beyond a reasonable doubt that it was Harrison who was at
the scene of the wrecked Pontiac, manufacturing methamphetamine. The jury
was instructed that Harrison was presumed innocent, that the State had to prove
each and every element of the charged crimes beyond a reasonable doubt, and
that Harrison was alleged to have knowingly or intentionally committed the
crimes on or about January 28, 2013. Thus, we cannot say that the trial court
abused its discretion in concluding that the instructions given to the jury
adequately explained the State’s burden to prove that Harrison was present at the
scene of the crimes at approximately 12:30 p.m. on January 28, 2013, which
necessarily means that the State had to prove that Harrison was not in
Owensboro or otherwise with Hatfield.
[38] In short, the trial court did not abuse its discretion in instructing the jury.
IV. Admission of Recorded Jail Telephone Calls
[39] Harrison next argues that the trial court erred in admitting evidence regarding
jailhouse telephone calls made between him and Gee and between Hatfield and
Steven Pointer (“Pointer”), an inmate at the jail. Again, questions regarding the
admission of evidence are entrusted to the sound discretion of the trial court, and
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we review the trial court’s decision only for an abuse of that discretion. Fuqua,
984 N.E.2d at 713-14. 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.
A. Call Between Hatfield and Pointer
[40] Harrison first complains of the admission of evidence regarding a telephone call
made between his ex-girlfriend, Hatfield, and Pointer, another inmate at the jail.
A recording of this call was not admitted; instead, the State asked Hatfield if she
remembered certain exchanges with Pointer, specifically:
Mr. Pointer said to you “What’s up?” On the call you say “Oh
nothing. Been running from the po-po all day.” He said “Running
from the po-po?” You said “Yeah, they got Bams [i.e., Harrison]
posted up. They ain’t got him yet, but they’re close.” He said
“They got him posted up?” And you said “Yeah, but I can’t talk
about it no more. They’re in - they’re on them deep.” Do you
remember that conversation with Mr. Pointer?
Tr. p. 396. Hatfield claimed that she did not recall this conversation clearly and
denied that she was running from the police. The State also later asked Hatfield if
she remembered telling Pointer, “Hey, Gee’s in there, but I got the other one. I
got mine with me.” Tr. p. 398.
[41] On appeal, Harrison claims that the admission of these statements violated the
rule against hearsay and the Confrontation Clause of the Sixth Amendment to
the United States Constitution.
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[42] Hearsay is defined as “(1) a statement that is not made by the declarant while
testifying at trial or hearing; and (2) is offered in evidence to prove the truth of
the matter asserted. Ind. Evidence Rule 801(c); see also Amos v. State, 896 N.E.2d
1163, 1168 (Ind. Ct. App. 2008). Hearsay is generally inadmissible. Amos, 896
N.E.2d at 1168 (citing Ind. Evidence Rule 802).
[43] The State claims generally that jailhouse phone calls are generally admissible. See
King v. State, 985 N.E.2d 755, 759 (Ind. Ct. App. 2013) (“Generally, recordings
of telephone calls made from jail are admissible when the defendant discusses the
crime for which he is incarcerated.”), trans. denied. However, the telephone
conversation between Hatfield and Pointer is not a recording of a conversation
where the defendant discussed the crime for which he was incarcerated.
[44] Moreover, it is clear that Hatfield’s out-of-court statements were introduced in
order to prove the truth of the matter asserted, i.e., that she and/or Harrison had
been running from the police and that Gee had been caught by the police. The
State offers no argument as to why these statements are subject to any hearsay
exception, nor are we aware of any. Accordingly, we must conclude that these
statements were hearsay and that the trial court abused its discretion in admitting
them into evidence.
[45] However, this does not mean that Harrison’s convictions must be reversed. We
will not reverse a defendant’s conviction if the error was harmless. Teague v. State,
978 N.E.2d 1183, 1188-89 (Ind. Ct. App. 2012) (citing Turner v. State, 953 N.E.2d
1039, 1059 (Ind. 2011)). An error is harmless if substantial independent evidence
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of guilt satisfies the reviewing court that no substantial likelihood exists that the
challenged evidence contributed to the conviction. Id. Generally, errors in the
admission of evidence are to be disregarded unless they affect the substantial
rights of a party. Id. If the erroneously admitted evidence was cumulative of
other evidence, the admission is harmless error for which we will not reverse a
conviction. Id. (citing Lehman v. State, 926 N.E.2d 35, 37 (Ind. Ct. App. 2010)).
[46] Here, the admission of the evidence regarding Hatfield’s telephone conversation
with Pointer was cumulative of other admitted evidence and therefore harmless.
Deputy Taggart testified that a man matching Harrison’s description fled from
the crashed Pontiac, and Harrison’s wallet, identification cards, and telephone
were found inside the car. Richard, a woman who had known Harrison for
years, saw Harrison hiding in the nearby woods shortly after Harrison fled the
scene of the crash. Under these facts and circumstances, we conclude that the
evidence regarding Hatfield’s conversation with Pointer was harmless error.7
B. Call Between Harrison and Gee
[47] Harrison also claims that the trial court abused its discretion in admitting into
evidence the recorded telephone conversation between Harrison and Gee while
7
We also reject Harrison’s claim that the admission of this evidence violated his rights under the
Confrontation Clause. Harrison was able to cross-examine Hatfield regarding her statements; thus, no
confrontation issue exists. Pointer’s side of the conversation was not only trivial and harmless, but also
non-testimonial. See King, 985 N.E.2d at 758 (noting that a testimonial statement is one where the
primary purpose of the conversation was to prove past events potentially relevant to later criminal
proceedings).
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Harrison was in jail. Harrison presents numerous arguments as to why this
recording should not have been admitted.
[48] Harrison first briefly claims no foundation exists for the admission of the
recording. “To lay a foundation for the admission of evidence, the proponent of
the evidence must show that it has been authenticated.” Pavlovich v. State, 6
N.E.3d 969, 976 (Ind. Ct. App. 2014), trans. denied. Authentication of an exhibit
can be established by either direct or circumstantial evidence. Id. Absolute proof
of authenticity is not required, and the proponent of the evidence need establish
only that a reasonable probability that the document is what it is claimed to be.
Id. Once this reasonable probability is shown, any inconclusiveness regarding the
exhibit’s connection with the events at issue goes to the exhibit’s weight, not its
admissibility. Id.
[49] Here, Richards identified the recording as one taken at the jail on the relevant
date, and Gee’s girlfriend, Marriah Barrett (“Barrett”) testified that the recording
was of a call between Harrison and Gee. This is sufficient to lay a foundation for
the admission of the recording.8
[50] Harrison also contends that the statements on the tapes constitute inadmissible
hearsay. Harrison’s statements on the tape, by definition of Evidence Rule
801(d)(2), are not hearsay, even if offered to prove the truth of the matter
8
Harrison briefly mentions the Federal Wiretap Act and the Indiana Wiretap Act but makes no
cognizable argument that the jail telephone calls violated either act.
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asserted. See Banks v. State, 761 N.E.2d 403, 406 (Ind. 2002) (“A party’s own
statement offered against that party is not hearsay.”) (citing Evid. R. 801(d)(2)).
Gee’s statements in the recording are relatively innocuous. The only statement
that might be harmful to Harrison was Gee’s reply of “Me, too,” when Harrison
stated that he had “ammonia in [his] lungs.” Tr. p. 243. To the extent that this
was offered to prove the truth of the matter asserted—that Gee had ammonia in
his lungs—we cannot say that it affected Harrison’s substantial rights. This is
especially true given the substantial evidence identifying Harrison as the one who
was in the car where the methamphetamine manufacturing was taking place: the
car in which the methamphetamine lab was found belonged to Harrison, his
wallet, identification, and telephone were inside the car, Deputy Taggart saw a
person matching Harrison’s description flee the car, and Richard saw Harrison
hiding in the nearby woods shortly after Harrison fled.
[51] Harrison also claims that the admission of the recording violated his right to
confront the witnesses against him. This can only refer to Gee’s statements on
the recording. Again, however, most of Gee’s statements were innocuous, and
the prejudicial statement regarding the ammonia in his lungs is insufficient to
require reversal, even if it were a testimonial statement.9
9
The record does not indicate that Gee’s statement was testimonial, i.e., made to prove past events
potentially relevant to later criminal proceedings. See King, 985 N.E.2d at 758.
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V. Prosecutor’s Statements During Closing Argument
[52] Harrison also claims that the trial court erred in overruling his objection to the
prosecuting attorney’s act of reading to the jury a portion of a published opinion
of this court. During the State’s closing argument, the prosecuting attorney read
a portion of this court’s opinion in Dawson v. State, 786 N.E.2d 742, 748 (Ind. Ct.
App. 2003), as follows:
The Court of Appeals in reviewing this definition of
manufacturing said “We conclude that once an individual crushes
up pills in order to separate the ephedrine from the pill binders the
manufacturing process has begun. Focusing upon the key phrases
in the definition this determination we observe that manufacture is
production, preparation, or processing of a controlled substance by
extraction from substances of natural origin.” They went on to
say, “The main ingredient in ephedrine -- the main ingredient is
ephedrine and is the substance which is chemically converted into
methamphetamine. The crushing of the pills into a powder form
indicates not only the possession of the precursor ephedrine, but
that it also begins the extraction process. This sufficiently meets
the definition of manufacturing in order to support a conviction
for dealing in methamphetamine by knowingly manufacturing it.”
That’s the Indiana Court of Appeal -- Court of Appeals.
Tr. pp. 548-49. Harrison makes no claim that this is an inaccurate quotation, nor
does he claim that it was an improper statement of the law. Instead, he claims
that it is improper to read case law to a jury. However, this is not accurate. We
have held before that it is proper for counsel to argue both law and facts in a
closing statement. Nelson v. State, 792 N.E.2d 588, 593 (Ind. Ct. App. 2003),
trans. denied. Our supreme court has held that reading case law to the jury is
proper in final argument so long as it is clear that the prosecutor is reading or
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referring to a separate case. Hernandez v. State, 439 N.E.2d 625, 630 (Ind. 1982)
(citing Griffin v. State, 275 Ind. 107, 114, 415 N.E.2d 60, 65 (1981)).
[53] Here, the prosecuting attorney made it clear that she was reading from a prior
opinion of this court in a separate case. The trial court instructed the jury that the
arguments of counsel were not evidence. Appellant’s App. p. 232. Accordingly,
we cannot say that the trial court abused its discretion in overruling Harrison’s
objection to the prosecuting attorney’s reading from Dawson during the State’s
closing argument.
VI. References to Defendant’s Nickname
[54] Lastly, Harrison claims that the trial court erred in permitting the use of
Harrison’s nickname, “Bam Bam,” during trial. The State argues at some length
that Harrison waived this argument by failing to object to each instance in which
Harrison was referred to as “Bam” or “Bam Bam.” We agree.
Harrison did not object to each instance in which his nickname was mentioned
at trial. See, e.g., Tr. pp. 152, 170-71. A party must generally continue to object
and obtain a ruling for each individual instance of allegedly inadmissible
evidence. Hutcherson v. State, 966 N.E.2d 766, 770 (Ind. Ct. App. 2012), trans,
denied.
[55] Waiver notwithstanding, Harrison’s argument is unavailing. Harrison claims that
the use of his nickname was irrelevant and unduly prejudicial. In general, all
relevant evidence is admissible. Ind. Evidence Rule 402. “‘Relevant evidence’
means evidence having any tendency to make the existence of any fact that is of
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consequence to the determination of the action more probable or less probable
than it would be without the evidence.” Ind. Evidence Rule 401. Even relevant
evidence “may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury[.]”
Ind. Evidence Rule 403. The trial court has discretion to permit the admission of
even marginally relevant evidence. Wilson v. State, 997 N.E.2d 38, 43 (Ind. Ct.
App. 2013), trans. denied (citing Thompson v. State, 671 N.E.2d 1165, 1171 (Ind.
1996)).
[56] Our supreme court has held that the use of a defendant’s nickname may be
relevant to the issue of identity. McAbee v. State, 770 N.E.2d 802, 805 (Ind. 2002).
The use of a nickname is questionable, however, where no apparent reason exists
not to use a defendant's proper name, and, even more so where the nickname
itself carries at least the implication of wrongdoing. Id.
[57] Here, the nickname “Bam Bam” has no apparent implication of wrongdoing or
criminality.10 Moreover, the use of Harrison’s nickname was relevant to proving
his identity and his ownership of the Pontiac from which he fled and the mobile
phone found therein. The prior owner of the Pontiac testified, “I sold it to a feller
-- his name was Bam Bam.” Tr. p. 152. The prior owner did not know
Harrison’s actual name. Moreover, several of the messages on the phone referred
10
In fact, “Bam Bam” is the name of a lovable, exceptionally strong infant character on the animated
series “The Flintstones.” See http://flintstones.wikia.com/wiki/Bamm-Bamm_Rubble;
http://www.imdb.com/character/ch0000639/.
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to “Bam” or “Bam Bam.” Under these facts and circumstances, we conclude that
the trial court did not abuse its discretion in permitting references to Harrison’s
nickname. See People v. Salgado, 678 N.E.2d 648 (Ill. App. Ct. 1997) (holding
that use of defendant’s nickname of “Bam Bam” was not improper where the
name itself did not carry a negative connotation that was immediately
recognizable and where defendant’s friends knew and identified him by that
name).
Conclusion
[58] In summary, we hold that the State presented sufficient evidence to convict
Harrison of manufacturing methamphetamine. However, Harrison’s convictions
for possession of anhydrous ammonia and possession of precursors are lesser-
included offenses of the greater offense of manufacturing methamphetamine and
must be reversed. Harrison may not now assert a claim of improper search or
seizure in his mobile phone, which he voluntarily abandoned. The trial court did
not commit reversible error in admitting evidence regarding the telephone call
between Hatfield and Pointer or between Harrison and Gee. Nor did the trial
court err in permitting the prosecuting attorney to read from a published opinion
of this court during the State’s closing argument. Lastly, the trial court did not
abuse its discretion in permitting references to Harrison’s nickname of “Bam
Bam.”
[59] Accordingly, we affirm Harrison’s convictions for Class B felony manufacturing
methamphetamine and Class A misdemeanor possession of paraphernalia but
reverse his convictions for Class B felony possession of anhydrous ammonia and
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Class B felony possession of chemical precursors and remand with instructions
that the trial court vacate the convictions and sentences thereon.11 Harrison’s
habitual offender adjudication remains.
Najam, J., and Bradford, J., concur.
11
Because the trial court ordered Harrison’s sentences to be served concurrently, Harrison’s aggregate
sentence will be unaffected by our holding.
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