James Jay Green III v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Sep 23 2015, 8:59 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 ATTORNEYS FOR APPELLEE
Steven E. Ripstra Gregory F. Zoeller
Jasper, Indiana Attorney General of Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

James Jay Green III, September 23, 2015

Appellant-Defendant, Court of Appeals Case No.
82A01-1411-CR-474
v. Appeal from the Vanderburgh
Circuit Court
The Honorable David D. Kiely,
State of Indiana, Judge
Appellee-Plaintiff The Honorable Kelli E. Fink,
Magistrate
Cause No. 82C01-1403-FA-275

Bailey, Judge.

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 Case Summary
[1] James Jay Green, III (“Green”) appeals his convictions and sentences for

Dealing in Methamphetamine, as a Class A felony, 1 and Possession of

Methamphetamine, as a Class B felony. 2 We affirm.

Issues
[2] Green presents four issues for our review, which we restate as the following

five:

I. Whether the trial court abused its discretion in admitting
evidence seized after a warrantless search of Green’s apartment;
II. Whether there was sufficient evidence to support his conviction
for Dealing in Methamphetamine;
III. Whether his convictions for Dealing in Methamphetamine and
Possession of Methamphetamine violate principles of double
jeopardy under the actual evidence test;
IV. Whether the trial court abused its discretion in failing to find
two mitigating factors advanced by Green; and
V. Whether his sentence was inappropriate.

Facts and Procedural History

1
Ind. Code §§ 35-48-4-1.1(a)(1)(A) & 35-48-4-1.1(b)(3). Due to substantial revisions to the Indiana Code
effective July 1, 2014, this offense is now a Level 4 felony. Throughout this opinion, we refer to the versions
of the statutes in effect at the time of Green’s offense.
2
I.C. §§ 35-48-4-6.1(a) & 35-48-4-6.1(b)(2).

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[3] In the late evening of March 7, 2014, Evansville Police Department (“EPD”)

officers responded to an anonymous tip received by the EPD and Vanderburgh

County Sheriff’s Office Joint Task Force that methamphetamine was being

manufactured in apartment K4 of the Shady Tree Apartments in Evansville.

When EPD Officer Nathan Hassler (“Officer Hassler”) knocked on the door of

apartment K4, Green, the lessee, answered and then stepped outside to talk to

the officer.

[4] EPD Officer John Montgomery (“Officer Montgomery”) then approached the

front door where Officer Hassler and Green were standing. As he approached,

he smelled “a slight chemical odor” (Tr. 52) of a solvent that he “believed to be

Coleman fuel” coming from the apartment. (Tr. 56.) Based on his training and

experience, Officer Montgomery associated the odor with the manufacture of

methamphetamine. He then informed Officer Hassler that he smelled a

“chemical smell.” (Tr. 148.)

[5] Officer Hassler asked Green if anyone else was inside the apartment, and Green

stated that his girlfriend, Cherron Roberts (“Roberts”), was in the bedroom.

From his experience and training, Officer Hassler knew meth labs “are very

dangerous and they can explode[.]” (Tr. 42.) Because “the chemical smell, it’s

a safety hazard” (Tr. 151), Officer Hassler entered the apartment without a

warrant or Green’s consent. Officer Hassler executed the search for the limited

purpose of retrieving Roberts from the apartment.

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[6] Upon entering the apartment, Officer Hassler observed in plain view on a coffee

table a tied corner baggie containing a white powdery substance, which he

suspected was methamphetamine. He passed through the living room and

discovered Roberts in the back bedroom. Items consistent with the

manufacture of methamphetamine, including aluminum foil, lye, a box of cold

packs (instant cold compresses), and plastic tubing, were also in plain view on

the bedroom floor. Officer Hassler permitted Roberts to put on some clothing

and secure her dog in the bathroom before escorting her out of the apartment.

He then contacted the Joint Task Force’s Methamphetamine Suppression Unit.

[7] Based on information he received from Officer Hassler, Vanderburgh County

Sheriff’s Office Detective J.J. Budde (“Detective Budde”) secured a warrant to

search the apartment. When executing the warrant, officers found precursors to

and items commonly associated with the manufacture of methamphetamine,

including: ninety-six pills (5.6 grams) of pseudoephedrine-based cold medicine

in blister packs removed from the boxes, salt, Coleman fuel, Drain Out drain

cleaner containing lye (sodium hydroxide), cold compresses containing

ammonia nitrate, a lithium battery, Liquid Fire (sulfuric acid), clean plastic

bottles with the labels removed, a funnel, aluminum foil, cutting tools, tubing

run through a bottle cap, coffee filters, and a digital scale. The apartment’s

hard-wired smoke detector had been disconnected and removed.

[8] A coffee filter containing a white powdery substance was found in Roberts’s

purse in the living room. Police found in the bedroom closet a dinner plate

containing a white powdery substance, which the officer collected from the

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 plate and placed in a plastic bag. Subsequent testing by the Indiana State Police

laboratory revealed that both the coffee filter and the plate powder tested

positive for methamphetamine. A syringe was found in the bedroom closet. A

smoking pipe with burnt residue was found on a chest by the bed. Two

additional syringes and a spoon were found in a chest drawer next to

prescriptions labeled with Green’s name.

[9] Officers also found in Roberts’s purse receipts from Wal-Mart, Rural King, and

Dollar General from February 23, March 4, and March 7, 2014 for purchases of

Coleman fuel, salt, a 1.5 liter bottled soda, cold compresses, a lithium battery,

and coffee filters. A March 7, 2014 Rural King receipt for the purchase of

Drain Out was found in Green’s pocket. Green was placed under arrest.

Detective Budde later obtained surveillance video from the Wal-Mart, Dollar

General, and Rural King stores, which showed Green and Roberts, either

together or individually, purchasing items from those stores on February 23,

March 4, and March 7, 2014.

[10] On March 11, 2014, Green was charged with Dealing in Methamphetamine, as

a Class A felony 3 (“Count 1”), and Possession of Methamphetamine, as a Class

B felony (“Count 2”). Also on March 11, 2014, the State alleged that Green

3
The code section captioned “Dealing in methamphetamine” also prohibits methamphetamine manufacture.
Originally, the State charged that Green “did possess with the intent to manufacture methamphetamine” in
violation of Indiana Code section 35-48-4-1.1(a)(2). (App. 9.)

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 was a Habitual Substance Offender. 4 On June 20, 2014, the State amended

Count 1, alleging that Green “did knowingly or intentionally manufacture

methamphetamine[.]” 5 (App. 12.)

[11] On April 23, 2014, Green filed a motion to suppress all evidence seized from

his apartment, arguing that the evidence was obtained through an illegal search

and seizure in violation of the Fourth Amendment to the U.S. Constitution and

Article 1, Section 11 of the Indiana Constitution. A suppression hearing was

held on May 29, 2014, after which the motion was denied on June 10, 2014.

[12] A jury trial was held on June 23 and 24, 2014, at the conclusion of which Green

was found guilty of both counts. Under Count 1, the jury also found Green

guilty of Attempted Dealing in Methamphetamine. The trial court found that

Attempted Dealing in Methamphetamine was a lesser-included offense of

Dealing in Methamphetamine, and entered judgments of conviction only on

Dealing in Methamphetamine and Possession of Methamphetamine. Green

then admitted to having two prior unrelated substance abuse convictions, and

the court adjudicated him a habitual substance offender.

4
I.C. § 35-50-2-10.
5
We note that the amended charging information for Count 2 cites Indiana Code section 35-48-4-
1.1(a)(1)(B), which prohibits financing the manufacture of methamphetamine. However, the allegation
contained in the information relates to subsection (a)(1)(A) because it alleges that Green “did knowingly or
intentionally manufacture methamphetamine.” (App. 12.) It is well settled that the allegation in the body of
the information, not the cited statute, defines the crime. Hestand v. State, 491 N.E.2d 976, 980 (Ind. 1986).
The jury was instructed on knowingly or intentionally manufacturing.

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[13] On October 9, 2014, a sentencing hearing was held. Green was sentenced to

thirty-five years in the Indiana Department of Correction (“DOC”) on Count 1

to be served concurrently with a two-year sentence in the DOC on Count 2.

The court subsequently corrected Green’s sentence on Count 2 to reflect his

conviction for a Class B felony, and sentenced him to twelve years in the DOC,

to run concurrently with his sentence in Count 1. The court also enhanced

Green’s sentence on Count 1 by three years due to his status as a habitual

substance offender, yielding an aggregate sentence of thirty-eight years.

[14] Green now appeals his convictions and sentences.

Discussion and Decision
Admission of Evidence
[15] Green first argues that Officer Hassler’s warrantless entry into his apartment

violated his rights under the Fourth Amendment to the U.S. Constitution and

Article 1, Section 11 of the Indiana Constitution. Because a warrant was

subsequently obtained based on items Officer Hassler observed in plain view

when he was inside the apartment, Green argues that all evidence seized from

his apartment must be suppressed as “fruit of the poisonous tree.” 6

6
Although the warrant is not included in the appendix, Green contends and the State concedes that the
warrant was obtained based on Officer Hassler’s observations made inside the apartment during the
warrantless search.

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[16] Where a pretrial motion to suppress is denied, the case proceeds to trial, and the

defendant renews his objection to the admission of the evidence, the issue is

best framed as challenging the admission of evidence at trial. Clark v. State, 994

N.E.2d 252, 259 (Ind. 2013). The trial court has broad discretion to rule on the

admissibility of evidence at trial. Guilmette v. State, 14 N.E.3d 38, 40 (Ind.

2014). We review the court’s ruling for abuse of that discretion and reverse

only when admission is clearly against the logic and effect of the facts and

circumstances before the court and the error affects a party’s substantial rights.

Id. (citation and quotation marks omitted). An appellant’s challenge to the

constitutionality of a search or seizure raises a question of law, which we

review de novo. Id. at 40-41.

Fourth Amendment
[17] The Fourth Amendment provides, in relevant part: “The right of the people to

be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated . . . .” The Fourth Amendment’s

protections against unreasonable searches and seizures extend to the States

through the Fourteenth Amendment. Taylor v. State, 842 N.E.2d 327, 330 (Ind.

2006) (citing Mapp v. Ohio, 367 U.S. 643, 650 (1961); Berry v. State, 704 N.E.2d

462, 464-65 (Ind. 1998)).

[18] “It is axiomatic that the ‘physical entry of the home is the chief evil against

which the wording of the Fourth Amendment is directed.’” State v. Straub, 749

N.E.2d 593, 597 (Ind. Ct. App. 2001) (quoting United States v. U.S. Dist. Court,

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 407 U.S. 297, 313 (1972)). A principal protection against unnecessary

intrusions into private dwellings is the Fourth Amendment’s warrant

requirement. Id. Searches performed by government officials without

obtaining warrants are per se unreasonable under the Fourth Amendment,

subject to a “few specifically established and well-delineated exceptions.”

Holder v. State, 847 N.E.2d 930, 935 (Ind. 2006) (quoting Katz v. U.S., 389 U.S.

347, 357 (1967)). The State bears the burden of proving that an exception to the

warrant requirement applied at the time of a warrantless search. Id. The

remedy for an illegal warrantless search is the suppression of the evidence

obtained from the search. Cudworth v. State, 818 N.E.2d 133, 137 (Ind. Ct. App.

2004), trans. denied.

[19] One exception allows police officers to dispense with the warrant requirement

where exigent circumstances exist. Holder, 847 N.E.2d at 936. As our supreme

court has explained:

The warrant requirement becomes inapplicable where the “‘exigencies
of the situation’ make the needs of law enforcement so compelling that
the warrantless search is objectively reasonable under the Fourth
Amendment.” Mincey v. Arizona, 437 U.S. 385, 393–94, 98 S. Ct.
2408, 2414, 57 L. Ed. 2d 290, 301 (1978). Among the exigencies that
may properly excuse the warrant requirement are threats to the lives
and safety of officers and others and the imminent destruction of
evidence. See Minnesota v. Olson, 495 U.S. 91, 100, 110 S. Ct. 1684,
1690, 109 L. Ed. 2d 85, 95 (1990). Law enforcement may be excused
from the warrant requirement because of exigent circumstances based
on concern for safety as long as the State can prove that a delay to wait
for a warrant would gravely endanger the lives of police officers and
others. Warden v. Hayden, 387 U.S. 294, 298–99, 87 S. Ct. 1642, 1646,

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 18 L. Ed. 2d 782, 787 (1967); see also Geimer v. State, 591 N.E.2d 1016,
1019 (Ind. 1992).
Id. at 936-37. A police officer’s subjective belief that exigent circumstances exist

is insufficient to justify a warrantless entry into a home or apartment; rather, the

test is objective and the State must establish that the circumstances as they

appear at the moment of entry would lead a reasonable, experienced law

enforcement officer to believe that someone inside is in need of immediate aid.

Cudworth, 818 N.E.2d at 137 (citing United States v. Richardson, 208 F.3d 626,

629 (7th Cir. 2000)).

[20] The State contends that because the manufacture of methamphetamine is a

volatile chemical process, Officer Montgomery’s detection of a chemical smell

associated with methamphetamine manufacture constituted exigent

circumstances that justified a “brief and limited warrantless search to find and

remove Roberts from the apartment for her safety.” (Appellee’s Br. 14.) Green

argues, however, that a slight chemical odor was not sufficient to establish

exigent circumstances and that the chemical smell “was clearly a pretext” for a

warrantless entry into his apartment. (Appellant’s Br. 17.) He points to this

Court’s decision in State v. Crabb, in which this Court expressed hesitancy to

“draw a bright line which would allow officers to enter a home without a

warrant based solely on the smell of ether[,]” a substance commonly used in the

manufacture of methamphetamine. 835 N.E.2d 1068, 1071 (Ind. Ct. App.

2005), trans. denied.

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[21] In this case, police officers were responding to an anonymous tip that

methamphetamine was being manufactured in apartment K4. After Green

opened the door, Officer Montgomery, who had training and experience with

detecting clandestine methamphetamine labs, testified that he detected “a slight

chemical odor” that he had smelled at “some previous meth labs I’ve dealt

with.” (Tr. 52.) Specifically, he smelled “[s]olvents” (Tr. 54), which he

“believed to be Coleman fuel.” (Tr. 56.) Officer Montgomery was aware that

Coleman fuel is commonly used in the “one-pot” method of methamphetamine

manufacture. For his part, Officer Hassler was aware that methamphetamine

labs “are very dangerous and they can explode[.]” (Tr. 42.) He believed “the

chemical smell, it’s a safety hazard.” (Tr. 151.) After Green confirmed that

another person was in the apartment, Officer Hassler decided to enter the

apartment. 7 Officer Hassler explained:

Let’s just say that [. . .] there was a meth lab in there, let’s just
completely say that. If that is, in fact, true, those things are very
dangerous and they can explode, and I don’t want somebody like
shaking one up and then tossing it out the door, and then here I am
gettin’ blown up by a meth lab . . . .

7
At the suppression hearing, Officer Hassler called his entry into the apartment a “protective sweep.” (Tr.
27.) As explained by this Court: “In Maryland v. Buie, 494 U.S. 325, 334 (1990), the Supreme Court held that
incident to an arrest, police officers may, as a precautionary matter and without probable cause or reasonable
suspicion, conduct a brief search of areas immediately adjoining the place of arrest from which an attack
could be immediately launched.” Cudworth, 818 N.E.2d at 138. Green was not under arrest at the time
Officer Hassler entered the apartment. The State does not argue, and denies that it ever argued, that Officer
Hassler’s entry was a protective sweep incident to an arrest.

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 (Tr. 42-43.) He also expressed concern for the occupant’s safety, stating that

while inside the building he was “just concerned with getting her out of the

apartment.” (Tr. 28.)

[22] Although the Court in Crabb expressed a hesitancy to find exigent

circumstances solely based on the smell of ether, the Court ultimately held that

the smell of ether, evidence that the apartment was occupied, and a report that

a child was present “caused Troopers to reasonably believe that a person inside

the apartment was in immediate need of aid.” 835 N.E.2d at 1071. Here, too,

Officer Hassler’s concern for the safety of officers and a person known to be in

an apartment in which police suspected methamphetamine was being

manufactured was sufficient to justify the warrantless entry into Green’s

apartment under the exigent circumstances exception. See also Holder, 847

N.E.2d at 939 (holding that warrantless entry into a home was justified by

exigent circumstances where extremely strong odor of ether was detected

coming from the home, officers suspected methamphetamine manufacture

based on defendant’s omissions, officer knew of dangers of manufacturing

process, and home was occupied by persons including a child); VanWinkle v.

State, 764 N.E.2d 258, 266 (Ind. Ct. App. 2002) (upholding the warrantless

entry into a defendant’s home after callers reported a strong ether odor

emanating from the house, police smelled the odor and observed evidence of

methamphetamine manufacture from outside, police knew the dangers of the

manufacturing process, and two people were in the house), trans. denied. As this

Court stated in VanWinkle, “[t]he combined knowledge of the fact that the

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 manufacture of methamphetamine can be very dangerous and the fact that

there were still other people in the residence would cause any reasonable police

officer to see the immediate need to remove any remaining persons from the

residence.” 764 N.E.2d at 266. The State carried its burden to establish that

the exigent circumstances exception to the warrant requirement applied at the

time Officer Hassler entered Green’s apartment.

Article 1, Section 11
[23] Green also argues that the warrantless search of his apartment violated Article

1, Section 11 of the Indiana Constitution. 8

[24] The language of Section 11 mirrors the Fourth Amendment’s protections

against unreasonable searches and seizures. U.S. Const. amend. IV; Ind.

Const. art 1, § 11; Trowbridge v. State, 717 N.E.2d 138, 143 (Ind. 1999).

However, the test for determining a rights violation differs between the two

provisions. Trowbridge, 717 N.E.2d at 143. Analysis under Article 1, Section

11 turns on the specific facts of each case and whether police conduct is

reasonable in light of the totality of the circumstances. VanWinkle, 764 N.E.2d

at 266. “[T]he totality of the circumstances requires consideration of both the

degree of intrusion into the subject’s ordinary activities and the basis upon

8
The State contends that although Green cited the Indiana Constitution and its test, Green failed to present
an independent analysis under the state standard and therefore the issue is waived. Although Green’s
discussion of the Indiana standard is minimal, Green cited to relevant case law on exigent circumstances that
interprets both the federal and state standards. (See Appellant’s Br. 11-13 (citing VanWinkle, 764 N.E.2d
258)). As the discussion is no more or less developed than his Fourth Amendment argument, we address the
issue.

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 which the officer selected the subject of the search or seizure.” Litchfield v. State,

824 N.E.2d 356, 360 (Ind. 2005). “Our determination of the reasonableness of

a search or seizure under Section 11 often ‘turn[s] on a balance of: 1) the degree

of concern, suspicion, or knowledge that a violation has occurred, 2) the degree

of intrusion the method of the search or seizure imposes on the citizen’s

ordinary activities, and 3) the extent of law enforcement needs.’” Holder, 847

N.E.2d at 940 (quoting Litchfield, 824 N.E.2d at 361).

[25] In this case, the officers suspected methamphetamine manufacture based on an

anonymous tip. When Green opened the door, an officer detected a chemical

smell, which based on his training and experience the officer associated with

methamphetamine labs. Both officers were aware that methamphetamine labs

use flammable chemicals and involve a volatile process that presents risk of

explosions. After Green informed the officer that Roberts was inside the

apartment, Officer Hassler entered and removed Roberts from the premises.

[26] Although the degree of intrusion was high, law enforcement’s need to ensure

safety in light of the known dangers associated with clandestine

methamphetamine labs outweighs the intrusion. We therefore conclude that,

based on the totality of the circumstances, Officer Hassler’s entry into the

apartment was reasonable under Article 1, Section 11. See VanWinkle, 764

N.E.2d at 267 (finding that the warrantless entry into a residence was

reasonable under Article 1, Section 11 “because, had the officers taken the time

to get a search warrant at that point, the people remaining in the residence

could have been injured by the volatile manufacturing process, could have

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 destroyed evidence, and/or could have attempted to inflict harm upon the

officers or others.”).

[27] The limited warrantless entry of Green’s apartment was justifiable under the

exigent circumstances exception to the warrant requirement and was reasonable

under Article 1, Section 11. The trial court did not abuse its discretion in

admitting the evidence seized after police obtained a warrant based on items

observed in plain view during the officer’s warrantless entry.

Sufficiency
[28] Green next argues there was insufficient evidence to support his conviction for

Dealing in Methamphetamine. 9

[29] Our standard of review for sufficiency of the evidence claims is well settled.

We consider only the probative evidence and reasonable inferences supporting

the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess

the credibility of witnesses or reweigh evidence. Id. We will affirm the

conviction unless “no reasonable fact-finder could find the elements of the

crime proven beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726

N.E.2d 268, 270 (Ind. 2000)). “The evidence is sufficient if an inference may

9
Although Green’s statement of the issue purportedly challenges the sufficiency of the evidence to support
both convictions, he presents argument only as to Dealing in Methamphetamine. Thus, we do not review the
sufficiency of the evidence to support his Possession of Methamphetamine conviction.

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 reasonably be drawn from it to support the verdict.” Id. at 147 (quoting Pickens

v. State, 751 N.E.2d 331, 334 (Ind. Ct. App. 2001)).

[30] A person who knowingly or intentionally manufactures methamphetamine,

pure or adulterated, commits dealing in methamphetamine, a Class B felony.

I.C. §§ 35-48-4-1.1(a)(1)(A). The offense is a Class A felony if the person

manufactured the drug in, on, or within one thousand feet of a family housing

complex. I.C. § 35-48-4-1.1(b)(3). 10 “Manufacture” includes the “production,

preparation . . . or processing of a controlled substance . . . .” I.C. § 35-48-1-18.

[31] The State charged that on or about March 7, 2014, Green “did knowingly or

intentionally manufacture methamphetamine, pure or adulterated, within one

thousand (1000) feet [of a] family housing complex[.]” (App. 12.)

[32] At trial, EPD Detective Brock Hensley (“Detective Hensley”) described in

detail the “one pot” methamphetamine manufacturing process. 11 The State

then introduced evidence that all of the precursors and items necessary to the

“one pot” method were found throughout Green’s apartment. Videotape

introduced at trial showed Green and Roberts purchasing many of these items

in the days leading to Green’s arrest. In addition to the precursors, the plastic

10
A “family housing complex” means a building or series of buildings that is operated as an apartment
complex. I.C. § 35-31.5-2-127(3). Green does not challenge the State’s evidence that Shady Tree Apartments
was an apartment complex and thus within one thousand feet of a family housing complex.
11
In summarizing the precursors and items necessary to manufacture methamphetamine, he listed:
pseudoephedrine, Coleman fuel (an organic solvent), lye, ammonia nitrate, lithium batteries (or some water-
reacting metal), sulfuric acid (usually Liquid Fire), salt, tubing and a bottle, and a reaction vessel.

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 bottle labels had been removed, 12 tubing was inserted through a bottle cap, 13 the

apartment’s smoke detector had been disabled, 14 and the pseudoephedrine pills

were removed from the box. Upon arrival at the apartment, Officer

Montgomery smelled a chemical odor he associated with methamphetamine

manufacture. Further, a coffee filter containing methamphetamine was found

in Roberts’s purse on or near the coffee table in Green’s living room. Detective

Hensley testified that coffee filters are commonly used to dry out

methamphetamine after production and before consumption. He further

testified “I’ve never seen [a person] sell a coffee filter with meth to someone

else.” (Tr. 122.)

[33] Green cites numerous appellate cases reviewing the sufficiency of evidence

presented to support Dealing in Methamphetamine convictions, arguing that in

every case more evidence was present than here. He notes that the precursors

found throughout Green’s apartment “were not mixed, altered or crushed.”

(Appellant’s Br. 19.) Green argues that “the only item the State contended was

proof of a manufacturing process was the piece of tubing running through a

12
Detective Budde testified that in his experience, labels are usually torn off so that the manufacturer can
view the reaction going on inside.
13
Detective Hensley testified that tubing pushed through a bottle cap and a plastic bottle are used to “smoke
off” methamphetamine oil and convert it into a useable form of methamphetamine.
14
EPD Detective Patrick McDonald (“Detective McDonald”) testified that hard-wired smoke detectors are
often removed during the manufacture of methamphetamine because the chemical reaction can produce
smoke and often releases other matter into the air that can trigger an alarm.

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 bottle cap.” (Appellant’s Br. 20.) In essence, he argues that there was

insufficient evidence of manufacturing to support his conviction. 15

[34] “Indiana courts have consistently held that the manufacturing process need not

be complete to violate the manufacturing statute.” Buelna v. State, 20 N.E.3d

137, 141 (Ind. 2014). Sufficient evidence of manufacturing has been found

where the evidence shows that steps taken to manufacture were in progress at

the scene. See, e.g., Bush v. State, 772 N.E.2d 1020, 1023 (finding sufficient

evidence that defendant knowingly manufactured methamphetamine where

police found at the defendant’s residence several items used in

methamphetamine manufacture and the State introduced testimony that the lab

was “in process”). See also Floyd v. State, 791 N.E.2d 206, 210 (Ind. Ct. App.

2003) (where all precursors, chemical reagents, equipment to manufacture

methamphetamine, and a small amount of finished methamphetamine were

found in a mobile home belonging to “Nelson,” there was sufficient evidence of

manufacturing such that the only dispositive issue was whether the defendant

had constructive possession of the evidence), trans. denied.

[35] Here, there was no testimony that the lab was currently in process. However,

Green had collected all of the precursors and items necessary to manufacture

15
In its brief, the State argues there was sufficient evidence to support the jury’s guilty verdict for Attempted
Dealing in Methamphetamine, but does not address Green’s conviction for Dealing in Methamphetamine.
Although the jury found Green guilty of both Attempted Dealing and Dealing in Methamphetamine, the trial
court found that Attempted Dealing was a lesser-included offense of Dealing in Methamphetamine and
entered judgment of conviction on Dealing in Methamphetamine. We review the sufficiency of the evidence
to support the offense of which Green was convicted.

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 methamphetamine using the “one pot” method. He had also begun the process

by removing the reaction vessel labels, pushing tubing through a bottle cap, and

removing the pseudoephedrine pills from the box. There was an active smell of

solvent in the apartment. And a coffee filter with methamphetamine indicative

of home manufacturing, rather than purchase, was found in a common area.

This was sufficient evidence from which a reasonable fact-finder could infer that

methamphetamine was being manufactured.

[36] Green argues, however, that even if this was sufficient evidence of

manufacturing, there was “a reasonable explanation: All the items were

[Roberts’s].” (Appellant’s Br. 27.) To the extent that Green asks us to reweigh

the evidence by pointing to testimony implicating Roberts, we decline Green’s

invitation. However, to the extent Green implies that there was insufficient

evidence that he possessed the items used in the manufacturing process, we

disagree. Possession of contraband can be either actual or constructive.

Constructive possession is established by showing that the defendant
has both the intent and capability to maintain dominion and control
over the contraband. Person v. State, 661 N.E.2d 587, 590 (Ind. Ct.
App. 1996), 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, the inference is not
permitted absent some additional circumstances indicating knowledge
of the presence of the contraband and the ability to control
it. Id. Among the recognized “additional circumstances” are: (1)
incriminating statements by the defendant; (2) attempted flight or
furtive gestures; (3) a drug manufacturing setting; (4) proximity of the
defendant to the contraband; (5) contraband is in plain view; and (6)

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 location of the contraband is in close proximity to items owned by the
defendant. Id.
Floyd, 791 N.E.2d at 210-11.

[37] Here, the precursors and manufacturing tools were found dispersed throughout

Green’s apartment in close proximity to his personal items. Many of the items

were found in plain view. Although the coffee filter was found in Roberts’s

purse, the purse was in the apartment living room while Roberts was in the

bedroom. Roberts was Green’s girlfriend at the time. Videotape introduced

into evidence showed Green purchasing, both with Roberts and independently,

some of the precursors and manufacturing items. All of this evidence supports

the inference that Green had intent and capability to maintain dominion and

control over the items necessary to manufacture methamphetamine.

[38] There was sufficient evidence to support Green’s conviction for Dealing in

Methamphetamine.

Double Jeopardy
[39] Article 1, Section 14 of the Indiana Constitution provides: “No person shall be

put in jeopardy twice for the same offense.” Indiana’s Double Jeopardy Clause

prevents the State from being able to proceed against a person twice for the

same criminal transgression. Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999).

Under Article 1, Section 14, two or more offenses are the same offense “if, with

respect to either the statutory elements of the challenged crimes or the actual

evidence used to convict, the essential elements of one challenged offense also

establish the essential elements of another challenged offense.” Id. Whether
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 multiple convictions violate the prohibition against double jeopardy is a

question of law that the Court reviews de novo. Weddle v. State, 997 N.E.2d 45,

47 (Ind. Ct. App. 2013), trans. denied.

[40] Under the actual evidence test, the evidence presented at trial is examined to

determine whether each challenged offense was established by separate and

distinct facts. Richardson, 717 N.E.2d at 53. “To show that two challenged

offenses constitute the ‘same offense’ in a claim of double jeopardy, a defendant

must demonstrate a reasonable possibility that the evidentiary facts used by the

fact-finder to establish the essential elements of one offense may also have been

used to establish the essential elements of a second challenged offense.” Id. If

the evidentiary facts establishing one offense establish only one or several, but

not all, of the essential elements of the second offense, there is no double

jeopardy violation. Micheau v. State, 893 N.E.2d 1053, 1065 (citing Spivey v.

State, 761 N.E.2d 831, 833 (Ind.2002)), trans. denied. When applying the actual

evidence test, we identify the essential elements of each challenged crime and

evaluate the evidence from the jury’s perspective, considering where relevant

the jury instructions, argument of counsel, and other factors that may have

guided the jury’s determination. Lamagna v. State, 776 N.E.2d 955, 959 (Ind.

Ct. App. 2002).

[41] In Count 1, Green was charged with violating Indiana Code section 35-48-4-

1.1(a)(1)(A), which provides: “A person who . . . knowingly or intentionally . . .

manufactures . . . methamphetamine, pure or adulterated . . . commits dealing

in methamphetamine, a Class B felony[.]” The offense is a Class A felony if the

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 person manufactured the drug in, on, or within one thousand feet of a family

housing complex. I.C. § 35-48-4-1.1(b)(3). In Count 2, Green was charged

with violating Indiana Code section 35-48-4-6.1(a), which provides: “A person

who, without a valid prescription or order of a practitioner acting in the course

of the practitioner’s professional practice, knowingly or intentionally possesses

methamphetamine (pure or adulterated) commits possession of

methamphetamine, a Class D felony[.]” The offense is a Class B felony if the

person in possession of methamphetamine possesses less than three grams of

pure or adulterated methamphetamine in, on, or within one thousand feet of a

family housing complex. I.C. § 35-48-4-6.1(b)(2).

[42] In this case, the State presented evidence that 0.61 grams of methamphetamine

was found on a plate in Green’s bedroom closet. Various paraphernalia

associated with methamphetamine use, including syringes, a spoon, and a

smoking pipe, were found in the apartment. Two syringes and a spoon were

found in a bedroom chest drawer next to prescriptions labeled with Green’s

name. In its closing arguments, the State did not discuss at any length the

Possession of Methamphetamine charge, arguing to the jury simply that the

methamphetamine “wasn’t in his pocket, but it was in his home.” (Tr. 631-

32.) 16

16
The State at one point argued that finished product was “on his livingroom [sic] table.” (Tr. 594.)
However, the tied corner baggie on the coffee table that Officer Hassler suspected was methamphetamine
was never tested. The only items tested were the coffee filter and the powder on the plate.

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[43] The State also presented evidence that Green had collected all of the precursors

necessary to manufacture methamphetamine, constructed tools needed in the

manufacturing process, and possessed a coffee filter with methamphetamine

indicative of the manufacturing process. The State focused its closing

arguments on the Dealing in Methamphetamine charge, summarizing the

evidence as thus:

In fact, Detective Budde told you that they had salt, lithium batteries,
Coleman camping fuel, Liquid Fire, pseudoephedrine, cold packs, a
funnel, aluminum foil, coffee filters, reaction vessels, HCL generators,
tubing, tubing through the cap of the 20 ounce or 2 liter bottle, and lye
which you saw the defendant purchase. You heard from Officer
Montgomery who said he smelled a chemical reaction, chemical odor,
that he associated with the manufacture of methamphetamine. You
heard from the chemist from the Indiana State Police lab, extensively,
that the product that was . . . the item found in the apartment was, in
fact, methamphetamine. [. . . .] There were supplies everywhere.
Some of them common household items, I agree, but they had them
all, and they had finished product, methamphetamine, on the coffee
filters which were located in the co-defendant’s purse. Remember the
testimony from Detective McDonald that you dry the
methamphetamine out to have your finished product on the coffee
filters, that’s what they’re used for. Remember Detective Budde telling
you that they often time strip the packaging or the labeling off the 2
liter bottles so that they can see inside, they can see the reaction. [. . .
.] Ladies and gentleman, they had gathered all of the evidence needed
to manufacture methamphetamine and by removing the smoke
detector, by inserting the tubing through the cap, by shredding the
pseudoephedrine box, taking the pills out of it . . . [t]hey had begun the
process of manufacturing methamphetamine . . . .
(Tr. 591-93.)

[44] Green contends that the “common, essential element of both crimes [is] a

knowing or intentional possession of methamphetamine” and that “Possession

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 is a lesser-included offense of Manufacturing/Dealing, based upon [these]

facts.” (Appellant’s Br. 31.) He seems to argue that the finished

methamphetamine was used to support both convictions in violation of the

actual evidence test.

[45] The State acknowledges that during closing arguments, the prosecutor argued

that the presence of finished methamphetamine product in the apartment was

“not only evidence of possession” but “also evidence of the manufacturing.”

(Tr. 594.) 17 However, the thrust of the State’s closing argument as to the

Dealing in Methamphetamine charge was that Green had assembled all of the

precursors and tools necessary to manufacture, and that the coffee filter and

chemical odor were additional evidence of manufacturing. Furthermore, when

discussing the Dealing in Methamphetamine charge in closing arguments, the

State did not allude to the 0.61 gram of methamphetamine found on the

bedroom plate in the same room as the drug paraphernalia. Yet this 0.61 grams

of methamphetamine as well as a tied corner baggie associated with purchasing

illegal drugs on the street, would support a conviction for Possession of

Methamphetamine independent of the finished product found in the coffee

filter.

17
The State’s argument in this section of its brief again focuses on the jury’s guilty verdict for Attempted
Dealing in Methamphetamine, and does not address the Dealing in Methamphetamine charge on which the
trial court ultimately entered judgment of conviction.

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[46] In light of the evidence and argument presented to the jury, we cannot say there

is a reasonable possibility that the evidentiary facts used by the jury to establish

the essential elements of Dealing in Methamphetamine were also used to

establish all of the essential elements of Possession of Methamphetamine.

Accordingly, we find no double jeopardy violation.

Sentencing
[47] We turn now to Green’s argument that the trial court abused its discretion in

imposing his sentence. Sentencing decisions rest within the sound discretion of

the trial court and are reviewed only for an abuse of discretion. Anglemyer v.

State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind.

2007). An abuse of discretion occurs if the decision is clearly against the logic

and effect of the facts and circumstances before the court, or the reasonable,

probable, and actual deductions to be drawn therefrom. Id. (citation and

quotation marks omitted). Trial courts must enter a sentencing statement

whenever imposing a sentence for a felony offense, and the statement must

include a reasonably detailed recitation of the court’s reasons for imposing a

particular sentence. Id. “If the recitation includes a finding of aggravating or

mitigating circumstances, then the statement must identify all significant

mitigating and aggravating circumstances and explain why each circumstance

has been determined to be mitigating or aggravating.” Id.

[48] A trial court abuses its discretion if it (1) does not enter a sentencing statement,

(2) enters a sentencing statement that explains reasons for imposing a sentence

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 – including a finding of aggravating and mitigating factors if any – but the

record does not support the reasons, (3) enters a statement that omits reasons

that are clearly supported by the record and advanced for consideration, or (4)

considers reasons that are improper as a matter of law. Jackson v. State, 973

N.E.2d 1123, 1130 (Ind. Ct. App. 2012) (citing Anglemyer, 868 N.E.2d at 490–

91), trans. denied. A trial court is not obligated to explain why it has not found a

factor to be mitigating. Anglemyer, 868 N.E.2d at 493. “An allegation that the

trial court failed to identify or find a mitigating factor requires the defendant to

establish that the mitigating evidence is both significant and clearly supported

by the record.” Id.

[49] Green argues that the trial court’s sentencing statement generally was

inadequate because the court did not identify specific mitigating or aggravating

circumstances or “explain why each factor was mitigating or aggravating.”

(Appellant’s Br. 33.) We disagree. Although no written sentencing statement is

included in the record, the court’s oral statement at the sentencing hearing

clearly identified two mitigating factors and the reasons they were mitigating:

(1) Green “has a child that would be affected by the Court’s sentence[,]” and (2)

“he admitted or plead[ed] guilty to the Habitual Enhancement in this case, and

kept the jury, the attorneys and the Court from having to proceed on a second

phase[.]” (Tr. 642.) The court then took into consideration Green’s criminal

history, listing each of his past convictions. The court’s statement was thus a

reasonably detailed recitation of the aggravating and mitigating factors and

reasons for imposing the particular sentence.

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[50] Green also contends that the court failed to identify two mitigating factors

advanced for consideration at the sentencing hearing. First, he points to the

Vanderburgh County Probation Department’s pre-sentence investigation report,

which states that the results of the Indiana Risk Assessment System –

Community Supervision Tool (“IRAS-CST”) “indicate [Green] is a low risk to

re-offend.” (App. 123.) Yet despite evaluating him at a low risk to reoffend, in

the same report the Probation Department recommended Green be sentenced

to prison terms significantly longer than those the trial court ultimately

imposed. Green has failed to establish the significance of the IRAS-CST results

as a mitigating factor.

[51] Green also argues that the trial court should have considered as a mitigating

factor his cooperation with the police when they entered and searched his

apartment. Yet Green argued at the sentencing hearing only that “he

cooperated somewhat with the Police” (Tr. 640), and otherwise downplayed

the seriousness of his crimes. We see no abuse of discretion in the trial court’s

failure to find Green’s moderate cooperation with the police a mitigating factor.

Independent Sentence Review
[52] We turn now to Green’s contention that his sentence was inappropriate in light

of the nature of his offense and his character. Article 7, Section 6 of the Indiana

Constitution grants this Court authority to independently review and revise a

sentence imposed by the trial court. To implement this grant of authority,

Indiana Appellate Rule 7(B) provides: “The Court may revise a sentence

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 authorized by statute if, after due consideration of the trial court’s decision, the

Court finds that the sentence is inappropriate in light of the nature of the offense

and the character of the offender.” Ind. Appellate Rule 7(B). The analysis is

not whether another sentence is more appropriate, but whether the sentence

imposed is inappropriate. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). The

principal role of our review is to leaven the outliers, and our review is very

deferential to the trial court. Id. The defendant bears the burden of persuading

the appellate court that his or her sentence is inappropriate. Id.

[53] Count 1, a Class A felony, carried a sentencing range of twenty to fifty years,

with the advisory sentence being thirty years. I.C. § 35-50-2-4. Count 2, a

Class B felony, carried a sentencing range of six to twenty years, with an

advisory sentence of ten years. I.C. § 35-50-2-5. As a habitual substance

offender, Green faced a sentencing enhancement of three to eight years. I.C. §

35-50-2-10(f). Green was sentenced to thirty-five years in the DOC on Count 1,

to be served concurrently to twelve years in the DOC on Count 2. (Tr. 643-44.)

The court also enhanced Green’s sentence on Count 1 by three years due to his

habitual substance offender status, yielding an aggregate sentence of thirty-eight

years. (Tr. 643.)

[54] Green argues that his sentence was inappropriate because his crime was not

violent and he has no past history of violent crime. Instead, he contends that

his prior criminal history reveals “an escalation in chemical dependency issues .

. . better handled within a therapeutic environment . . . than [in] extended

incarceration in DOC.” (Appellant’s Br. 36.) He further points to the

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 “paucity” of evidence of his guilt (Appellant’s Br. 1), arguing that his

connection to criminal activity in this case, if any, “is slight and tenuous.”

(Appellant’s Br. 36.) He also argues that under Indiana Code section 35-50-2-

2(b)(1), he “deserved up to 15 years and six years, respectively, suspended from

his sentences, based upon the sparse evidence of guilt.” (Appellant’s Br. 37.)

[55] We first observe that Indiana Code section 35-50-2-2(b), which provides that

the trial court may suspend to probation any part of a felony sentence (subject to

certain exceptions), is a permissive statute. The trial court was under no

statutory obligation to suspend to probation any part of Green’s sentence.

[56] Second, as discussed above, there was sufficient evidence to support Green’s

conviction for Dealing in Methamphetamine. Even if we agreed with his

contention that he was convicted on “sparse” evidence, the volume of evidence

presented has no bearing on our independent appellate review of Green’s

sentence. Rather, our review looks exclusively to the nature of the offense and

the character of the offender. See App. R. 7(B).

[57] As to the nature of his offenses, Green collected and constructed all of the

precursors and tools necessary to manufacture methamphetamine and

possessed finished methamphetamine product. There is nothing extraordinary

about the nature of Green’s offenses. As to Green’s character, the record shows

that Green has a prior criminal history, including felony convictions for

Possession of a Controlled Substance and Operating a Vehicle While

Intoxicated (“OWI”). He also has misdemeanor convictions for OWI (two

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 counts), Possession of Marijuana, and Driving While Suspended with a Prior

Suspension. Green was on probation at the time of the instant offenses. In

light of Green’s criminal history involving several drug-related crimes, the trial

court’s imposition of a sentence only slightly above the advisory range for each

count, to be served concurrently, was not inappropriate.

Conclusion
[58] Because the officer’s warrantless entry into Green’s home did not violate his

federal or state constitutional rights, the trial court did not abuse its discretion in

admitting evidence obtained after police obtained a warrant based on items in

plain view during the warrantless search. There was sufficient evidence to

support Green’s conviction for Dealing in Methamphetamine. Green’s

convictions for Dealing in Methamphetamine and Possession of

Methamphetamine did not violate double jeopardy principles under the actual

evidence test. The trial court did not abuse its discretion in sentencing Green,

and Green’s sentence was not inappropriate.

[59] Affirmed.

Riley, J., and Barnes, J., concur.

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