MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Dec 30 2016, 6:39 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark Leeman Gregory F. Zoeller
Logansport, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert L. Dowell, December 30, 2016
Appellant-Defendant, Court of Appeals Case No.
09A04-1601-CR-23
v. Appeal from the Cass Superior
Court
State of Indiana, The Honorable Thomas C.
Appellee-Plaintiff Perrone, Judge
Trial Court Cause No.
09D01-1402-FB-11
Mathias, Judge.
[1] Robert Dowell (“Dowell”) was convicted after a jury trial in Cass Superior
Court of three felonies and two misdemeanors for making methamphetamine
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and possessing methamphetamine, marijuana, and paraphernalia. Dowell
challenges the evidence against him as unlawfully seized and as insufficient to
sustain his convictions.
[2] We affirm.
Facts and Procedural History
[3] On the evening of February 18, 2014, Officer Flaude Dillon (“Dillon”) of the
Logansport Police Department (“LPD”) was speaking with Sabrina Brewer
(“Brewer”) in the lobby of the Cass County jail. Dillon had been summoned to
the jail by the Cass County sheriff, to whom Brewer had earlier reported what
she was then telling Dillon: Brewer had just been to a home on Wabash Avenue
on the Wabash River to pick up her boyfriend’s children. As she stood on the
front porch, Brewer smelled a “strong chemical odor” coming from the house.
Appellant’s App. p. 116. Brewer thought it smelled like methamphetamine was
being made there. Brewer did not know the exact address but described the
house well enough for Dillon to identify it.
[4] Dillon relayed what Brewer told him to Sergeant Adam Morrow (“Morrow”) of
the LPD. Together with every uniformed LPD officer on duty that night, up to
“six or seven” officers in total, Tr. p. 60, Morrow went to the Wabash Avenue
house for the stated purpose of checking on the safety and welfare of any other
children who might be there. Morrow, a K-9 officer, left his dog in the car
because fumes from methamphetamine production can hurt a dog’s nose.
Morrow and other officers went to the front door and knocked. Standing on the
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front porch, Morrow, like Brewer, smelled the distinct chemical odor of
methamphetamine production.
[5] Dowell opened the front door. With him was a woman, Amanda Burden
(“Burden”). Morrow and the officers explained to Dowell why they were there.
Dowell insisted no one else was in the house, certainly no children, and invited
the officers inside so they could see for themselves. Once inside, the officers
found the chemical smell to be nearly overwhelming. Headaches and nausea set
in, and the officers’ eyes and noses began to burn.
[6] The officers asked Dowell about the smell. Dowell replied that it came from
chemicals he used in a makeshift tattooing operation run from the house.
Morrow “did [not] agree with that assessment” of the odor’s origin. Tr. p. 327.
Dowell pointed to a side room near the front door as his tattoo parlor. On a
table inside that room, officers saw some tattooing equipment and a blue glass
pipe with black residue inside. Morrow asked Dowell for Dowell’s consent to
search the house for drugs. Dowell refused and told Morrow to get a warrant.
The only thing the officers would find in the house, Dowell said, was some
marijuana.
[7] The officers decided to accept Dowell’s invitation to seek a search warrant.
They handcuffed Dowell and Burden, put them in separate police cars, and
swept the house to be sure no one else was inside. Morrow, meanwhile, left for
the county courthouse to meet the prosecutor and judge on call that night.
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[8] At the time, Judge Leo T. Burns (“Judge Burns”) was judge of the Cass Circuit
Court and was on call that evening. Before becoming a judge, he had been an
attorney who represented criminal defendants in Cass County as an appointed
public defender. Dowell was one of his former clients, most recently in 2004,
ten years earlier. From Dowell’s perspective, he and Attorney Burns had had an
acrimonious relationship. The bases of this alleged acrimony, however, were
never made quite clear. “[W]e fell out,” Dowell would later testify. Tr. pp. 83-
84. “I filed some stuff against his will[;] he was ordered . . . to relinquish the
information that I requested. He basically threw a . . . fit about it[.] I mean . . .
we had words back and forth[;] we weren’t at good standings.” Tr. p. 84 (sic).
Dowell would also later direct voluminous correspondence to the trial court,
making nonspecific, unsupported claims of Judge Burns’s bias against him. It is
not clear from the record whether, on February 18, 2014, Judge Burns
recognized the target of Morrow’s search warrant application as his former
client.
[9] At the courthouse, Morrow described to Judge Burns what LPD officers had
seen at the Wabash Avenue house. Morrow sought a warrant to search both the
house and a detached garage on the same property. Judge Burns granted the
request as to the house but denied it as to the garage, because “it seems like [the
house] is where the probable cause is.” Appellant’s App. p. 120. The warrant
authorized a search for “[e]vidence of criminal drug activity including [deleted]
methamphetamine, marijuana, synthetic drugs, paraphernalia and any
controlled substances, precursors, chemicals commonly used to manufacture,
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weigh, package, sell or consume illegal drugs[.]” Ex. Vol., State’s Ex. 1. It was
now early in the morning of February 19, 2014.
[10] Morrow returned to the Wabash Avenue house with the search warrant. There,
Morrow met Senior Trooper Michael Lorona (“Lorona”), a member of the
“Clandestine Lab” unit of the Indiana State Police. Tr. p. 347. Lorona had been
summoned to the house by reports that a possible methamphetamine
production site had been discovered there. Armed with Morrow’s warrant,
Lorona and another trooper entered the house and began their search in
Dowell’s tattoo parlor. In a closet in that room, Lorona found a collection of
ingredients and utensils used to make methamphetamine.1 Every step of the
production process was accounted for by the items in the closet, except for
pseudoephedrine, a necessary ingredient at the first step, and completed
methamphetamine. Investigators would later examine records of the National
Precursor Log Exchange (“NPLEx”), a privately maintained database of
pseudoephedrine purchases, showing Dowell purchasing pseudoephedrine in
such quantities that Lorona thought indicated a nontherapeutic purpose. On
and around the table where the tattooing equipment and blue glass pipe had
1
This included a bottle of ammonium nitrate pellets taken from instant cold packs; opened and emptied
instant cold packs; lithium-ion batteries; pliers and wire cutters for breaking open the batteries and extracting
the lithium; a bottle of lye drain cleaner; camp fuel, used as a solvent; three bottles identified as “reaction
vessels,” Tr. p. 613, used to contain the chemical reaction that results from the combination of the above
ingredients and produces methamphetamine; a bottle of sulfuric acid drain cleaner; salt, which creates
hydrochloric gas when mixed with sulfuric acid; two bottles identified as “[hydrogen chloride] generators,”
Tr. p. 450, testing positive for hydrochloric gas, used to precipitate solid methamphetamine from the camp
fuel solution; and other accoutrements of the production process, including tubing, a digital kitchen scale,
coffee filters, funnels, and a makeshift ventilation system.
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been seen earlier, Lorona found, among other items, the blue glass pipe with
black residue, later identified as burned marijuana; two clear glass pipes, one of
which tested positive for methamphetamine; a bag of marijuana; and the butts
of two marijuana cigarettes.
[11] Having catalogued and photographed what he found, Lorona removed
potentially dangerous items from the room for proper disposal, opened the
windows to ventilate the house, and told the LPD officers that his investigation
was complete. Dowell and Burden were arrested for conspiracy to manufacture
methamphetamine.2
[12] Later that day, February 19, 2014, the State charged Dowell in a six-count
information with Class B felony dealing in methamphetamine, Class D felony
possession of methamphetamine, Class D felony maintaining a common
nuisance, Class D felony unlawful possession of a syringe, Class A
misdemeanor possession of marijuana, and Class A misdemeanor possession of
paraphernalia. The State later added a habitual offender charge which rested in
2
It was the official account below that Dowell and Burden were first detained for their safety and the
officers’, and only arrested after the search warrant was executed. See, e.g., Tr. pp. 59, 310, 313. Given that
the search warrant was not issued until about 12:30 A.M. on February 19, 2014, Ex. Vol., State’s Ex. 1, on
this account, Dowell would have been arrested some time later that morning. A Cass County sheriff’s
booking report, however, records that Dowell was booked into the Cass County jail at 11:55 P.M. on
February 18, 2014, on the charge of reckless possession of paraphernalia, Appellant’s App. p. 21, presumably
for the blue glass pipe LPD officers saw inside the Wabash Avenue house before the warrant was applied for.
While nothing in Dowell’s appeal turns on this issue, we find it disconcerting that law enforcement could
lead a man from his house in handcuffs in the middle of the night without being able to give a consistent
account of what they were doing. See Tr. p. 72 (At the suppression hearing, Morrow “[did]n’t recall” whether
it was possible that Dowell was already in jail when the warrant was executed.)
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part on a felony conviction secured in the 2004 case in which Attorney Burns
had represented Dowell.
[13] The next day, February 20, 2014, Dowell appeared before Judge Burns for an
initial hearing. By then, Judge Burns had remembered his earlier representation
of Dowell. From an abundance of caution and concern for propriety, Judge
Burns disclosed that representation in open court, and advised Dowell that
“when you do get a chance to talk to your lawyer . . . that [sh]ould be one of the
first things that you talk about, . . . whether . . . I [should] continue to be the
[j]udge in this case or whether . . . it’s more appropriate that somebody else be
the [j]udge.” Appellant’s App. p. 38. Dowell replied that he understood. At a
pretrial conference on April 24, 2014, Judge Burns’s possible recusal was
discussed more fully. Again from an abundance of caution, Judge Burns
thought that “discretion up front is better than holding on to something and
running into an issue later on, so I will recuse myself . . . .” Appellant’s App.
pp. 67-68. The case was ultimately transferred to Judge Thomas C. Perrone of
Cass Superior Court, who assumed jurisdiction over Dowell’s case on May 6,
2014.
[14] On August 26, 2015, Dowell moved to suppress the evidence taken from the
Wabash Avenue home under the warrant, arguing that the warrant was not
supported by probable cause and had not been issued by a neutral and detached
magistrate. At a hearing on September 24, 2015, the court heard the testimony
of Morrow and Dowell and the parties’ arguments. The court denied the
motion in a memorandum order on October 6, 2015.
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[15] Dowell’s case was tried to a Cass County jury over three days from October 27,
2015, to October 29, 2015. At the close of the State’s evidence, Dowell sought
and won dismissal of the charge for Class D felony unlawful possession of a
syringe. The jury returned guilty verdicts on the five remaining charges and
found Dowell to be a habitual offender. On December 17, 2015, the trial court
merged the convictions for possessing methamphetamine and maintaining a
common nuisance into the conviction for dealing methamphetamine, and
sentenced Dowell to an aggregate term of forty-two years in the Department of
Correction on the remaining convictions.
[16] This appeal followed. Dowell claims that the search warrant for the Wabash
Avenue house was invalid under the Fourth Amendment because it was not
issued by a neutral and detached magistrate, and that all the fruits of the search
under the warrant therefore should have been suppressed. Dowell claims
further that the evidence against him was insufficient to support his convictions
because the State did not show he had possession of the evidence taken from
the Wabash Avenue house.
Discussion and Decision
I. Dowell Waived His Claim of Fourth Amendment Error and Cannot Claim
Fourteenth Amendment Error
[17] The Fourth Amendment to the federal constitution requires that a warrant be
issued by a “neutral and detached” magistrate. Lo-Ji Sales, Inc. v. New York, 442
U.S. 319, 326 (1979). When the issuing magistrate fails to exhibit the neutrality
and detachment required, for example, by “acting [not] as a judicial officer but
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as an adjunct law enforcement officer,” id. at 327, the warrant will be
invalidated. Id. It is not settled whether and how a magistrate fails to satisfy this
requirement when issuing a warrant for a person whom he previously
prosecuted, see United States v. Villanueva, 821 F.3d 1226, 1235 (10th Cir. 2016)
(declining to address the merits in favor of decision under the good faith
exception to the exclusionary rule), or, as here, for a person whom he
previously represented as defense counsel under allegedly acrimonious
circumstances. See generally Green v. State, 676 N.E.2d 755, 762-63 (Ind. Ct.
App. 1997) (Neutrality and detachment are presumed in the absence of “any
showing of actual bias or prejudice” on the part of the issuing magistrate; mere
“contact or knowledge by a judge obtained outside the setting of a formal
hearing” will not without more invalidate a warrant.), trans. denied.
[18] This case does not afford us the opportunity to consider this question, however,
because Dowell’s Fourth Amendment claim was waived. Dowell moved to
suppress the challenged evidence before trial but concedes that he did not
contemporaneously object to its admission at trial. Appellant’s Br. p. 21.
Contemporaneous objection at trial was required to preserve the issue for
appeal, irrespective of a pretrial motion to suppress. Jackson v. State, 735 N.E.2d
1146, 1152 (Ind. 2000). Dowell’s claim of error was therefore waived unless the
error alleged was fundamental. Trice v. State, 766 N.E.2d 1180, 1182 (Ind.
2002).
[19] Our supreme court has held that “a claim [for error in admitting unlawfully
seized evidence at trial], without more, does not assert fundamental error.”
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Brown v. State, 929 N.E.2d 204, 205 (Ind. 2010). The Brown court explained that
errors are fundamental only where they “make a fair trial impossible or
constitute clearly blatant violations of basic and elementary principles of due
process.” Id. at 207 (internal quotation and citation omitted). With respect to
the protections of the Fourth Amendment, and of the exclusionary remedy for
its violation, the Brown court held that erroneous denial of these protections is
fundamental error only when coupled with a “claim of fabrication of evidence,”
“willful malfeasance,” or a “contention that the evidence is not what it appears
to be.” Brown, 929 N.E.2d at 207.3
[20] Dowell’s claim for Fourth Amendment error does not allege fabrication, willful
malfeasance, or “that the evidence is not what it appears to be.” Id. We are
therefore bound to deny that Dowell alleges fundamental error under Brown
unless he can show an independent basis for finding such error.
[21] For these reasons, Dowell relies on the independent due process guarantee of
adjudication by an impartial tribunal under the Fourteenth Amendment.4 In re
Murchison, 349 U.S. 133, 136 (1955); Kennedy v. State, 258 Ind. 211, 218, 280
N.E.2d 611, 615 (1972). An allegation of actual bias alleges a due process
violation, Murchison, 349 U.S. at 136 (“Fairness of course requires an absence of
3
The Brown court noted that the main run of suppression errors “ordinarily d[o] not cause us to question
guilt,” id., suggesting that only errors affecting accuracy can be taken as fundamental in this context. But
claims alleging “willful malfeasance” will not usually go to accuracy either, id., suggesting that Brown does
not so limit fundamental Fourth Amendment error.
4
The State does not address Dowell’s argument on this point.
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actual bias in the trial of case.”), and fundamental error. Rosendaul v. State, 864
N.E.2d 1110, 1115 (Ind. Ct. App. 2007) (“[I]f a judge is biased, fundamental
error exists.”), trans. denied; Ware v. State, 560 N.E.2d 536, 539 (Ind. Ct. App.
1990) (“If the trial judge was biased against [defendant], it [was] fundamental
error . . . .”).
[22] Dowell’s argument fails, however, because the due process clause of the
Fourteenth Amendment has not been held to apply of its own force to warrant
application proceedings, and Dowell has not offered argument that it does or
should. In addition to an impartial tribunal, due process ordinarily guarantees
notice and an opportunity to be heard. See, e.g., Twining v. New Jersey, 211 U.S.
78, 111 (1908). Dowell, however, like all other targets of warrant applications,
received neither, and does not argue that he should have.
[23] More fundamentally, in Gerstein v. Pugh, the Supreme Court held that a pretrial
detainee is entitled to a probable cause determination by a neutral and detached
magistrate under the Fourth Amendment, but not to an adversary proceeding of
the type guaranteed by the due process clause in other contexts. 420 U.S. 103,
126 (1975); see also id. at 127 (Stewart, J., concurring) (“I cannot join the
[majority’s] effort to foreclose any claim that the traditional requirements of
constitutional due process are applicable in the context of pretrial detention.”).
In rejecting the broader guarantees of the due process clause as a basis for its
decision in favor of the specific terms of the Fourth Amendment, the Gerstein
Court reasoned that the “Fourth Amendment was tailored explicitly for the
criminal justice system, and its balance between individual and public interests
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has always been thought to define the ‘process that is due’ for seizures of person
or property in criminal cases . . . .” Id. at 125 fn.27. This reasoning applies to
warrant applications with even greater force, as the text of the Fourth
Amendment is tailored even more explicitly to the warrant process than to
pretrial detention.
[24] Simply said, in the criminal context, the Fourteenth Amendment guarantee is
particularly concerned with adjudication at trial. See, e.g., Albright v. Oliver, 510
U.S. 266, 283 (1994) (Kennedy, J., concurring) (“The constitutional
requirements [the Supreme Court] enforced in [cases recognizing due process
requirements not specified in the Bill of Rights] ensured fundamental fairness in
the determination of guilt at trial.”); Murchison, 349 U.S. at 137 (Due process
forbids a magistrate from acting as grand jury and judge in the same case
because the judge could not be “wholly disinterested in the conviction or
acquittal of those accused. . . . Fair trials are too important a part of our free
society to let prosecuting judges be trial judges of the charges they prefer.”);
Rosendaul, 864 N.E.2d at 1115 (“A trial before an impartial judge is an essential
element of due process.”); Ware, 560 N.E.2d at 539 (Defendant “contends the
judge’s bias against him . . . denied him a fair trial.”). Here, even if Judge Burns
was actually biased against him in issuing the search warrant, Dowell cannot
contend that this denied him a fair trial, as a different, unbiased judge heard
Dowell’s arguments for suppression, decided to admit the challenged evidence,
and presided over the jury trial at which Dowell was convicted.
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[25] For these reasons, the proper standard for challenging the neutrality of a
magistrate in issuing a warrant is supplied by the Fourth Amendment itself.
Brown forecloses Dowell from bringing that challenge as a claim for
fundamental error. Our supreme court may wish to reconsider Brown in that
respect, but we cannot. The Fourteenth Amendment does not fly to Dowell’s
rescue by allowing him to raise the same procedurally defaulted claim merely
under a different rubric. Dowell’s Fourth Amendment claim was waived.
II. The State Sufficiently Proved Dowell’s Possession and Control Over the
Evidence in the Wabash Avenue House
[26] At trial, due process requires that the State bear the burden of proving all
elements of the crime charged beyond a reasonable doubt. In re Winship, 397
U.S. 358, 364 (1970); Powers v. State, 540 N.E.2d 1225, 1227 (Ind. 1989). On
direct appeal, a defendant may attack his conviction as unsupported by
evidence sufficient to have satisfied the State’s burden.
[27] When reviewing the sufficiency of the evidence, we neither reweigh the
evidence nor re-evaluate its credibility. Henley v. State, 881 N.E.2d 639, 652
(Ind. 2008). Rather, we view the facts of the case and the reasonable inferences
to be drawn from them in the light most favorable to the judgment. Bailey v.
State, 907 N.E.2d 1003, 1005 (Ind. 2009). We affirm unless no reasonable trier
of fact could have found the elements of the crime proved beyond a reasonable
doubt. Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007).
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[28] To convict Dowell of Class B felony dealing in methamphetamine,5 the State
was required to prove beyond a reasonable doubt that Dowell “knowingly or
intentionally . . . manufacture[d] . . . methamphetamine . . . .” Ind. Code § 35-
48-4-1.1(a) (2013). Manufacturing means
the production, preparation, propagation, compounding,
conversion, or processing of [methamphetamine], 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 [methamphetamine] or labeling
or relabeling of its container.
Id. at § 1-18(1)(A).
[29] Though the statute does not in terms refer to possession, “[w]e accept that it is
impossible to knowingly or intentionally manufacture methamphetamine
without first possessing the chemical precursors [of methamphetamine and other
necessaries] with the intent to make the drug. Methamphetamine cannot be
conjured up out of thin air.” Iddings v. State, 772 N.E.2d 1006, 1016 (Ind. Ct.
App. 2002) (finding possession of precursors with intent to manufacture not to
be a factually lesser included offense of manufacturing in defendant’s case)
(emphasis added), trans. denied; see also Hundley v. State, 915 N.E.2d 575, 579–81
(Ind. Ct. App. 2011) (State had to and did prove that defendant possessed camp
5
Dowell’s convictions for possession of methamphetamine and maintaining a common nuisance were
merged into the conviction for dealing methamphetamine. See ¶ 15 supra. Accordingly, we review only that
latter conviction.
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site where methamphetamine was manufactured.), trans. denied. Here, therefore,
the State had to prove that Dowell possessed the ingredients and equipment for
manufacturing methamphetamine found in the closet of Dowell’s tattoo parlor.
[30] Possession may be actual or constructive. Holmes v. State, 785 N.E.2d 658, 660
(Ind. Ct. App. 2003). As the LPD did not come upon Dowell actually
manufacturing methamphetamine, the State was required to prove Dowell’s
constructive possession of the incriminating evidence. “Constructive possession
is established by showing that the defendant [had] the intent and capability to
maintain dominion and control over” the incriminating evidence. Id. A
defendant’s exclusive possession or control of premises where such evidence is
found, without more, permits an inference that he knew of and was capable of
controlling it. Id.; see also Chandler v. State, 816 N.E.2d 464, 467 (Ind. Ct. App.
2004) (“[T]he law infers the party in possession of the premises is capable of
exercising dominion and control over all items on the premises.”).
[31] For the purposes of exclusivity, possession or control refers to “the defendant’s
relation to the place where the [evidence] is found: whether the defendant has
the power, by way of legal authority or in a practical sense, to control the place
where . . . the [evidence] is found.” Jones v. State, 807 N.E.2d 58, 65 (Ind. Ct.
App. 2004), trans. denied. In this light, there was ample basis for the jury to find
that Dowell, and only Dowell, had control over the Wabash Avenue house.6
6
At his sworn indigency hearing before Judge Burns, Dowell said that he “lived” at the Wabash Avenue
house but that it was owned by his father, Appellant’s App. p. 48, presumably the “Victor Dowell” named in
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Dowell answered the door when LPD officers first came knocking; Dowell
invited the officers inside to see that no one was present but he and Burden;
Dowell told the officers that he ran a tattoo parlor from the house, pointing
them to the room where the methamphetamine was produced; Dowell refused
his consent to a search of the house; and Dowell told the officers that they
would find marijuana in the house, which, like the evidence of
methamphetamine production, was then located in Dowell’s tattoo parlor. No
evidence before the jury indicated that Burden had any say over what went on
at the Wabash Avenue house. Burden stood silent as Dowell first granted and
then denied the LPD officers access to the house. Dowell’s unsupported
assertion to the contrary notwithstanding, it was Brewer’s boyfriend, not
Burden, whose children were said to have been picked up from the house that
night. No evidence before the jury would have permitted it to find that Burden
was anything but a visitor to Dowell’s home.
[32] From this evidence and all reasonable inferences drawn in favor of the
judgment below, a reasonable trier of fact could have concluded that Dowell
had the intent and capability to control the ingredients and equipment for
manufacturing methamphetamine found in the closet of Dowell’s tattoo parlor.
the search warrant. Ex. Vol., State’s Ex. 1. The younger Dowell did not pay cash rent to his father, he
explained, but “d[id] the remodeling there, painting and such” apparently as a form of in-kind rent.
Appellant’s App. pp. 48-49. This testimony was, of course, never put to the jury. The search warrant itself
was introduced at trial, but only to show its effect on the LPD officers serving it. Tr. p. 330 (“[W]hat [the
State] need[s] to put before the jury is evidence that the officers . . . weren’t just kicking in somebody’s door
without authorization . . . .”) The warrant would have been hearsay violative of the Confrontation Clause,
U.S. Const. amend. VI, if offered for the truth of its assertions that the Wabash Avenue house was “currently
inhabited by Robert Dowell” and “owned by Victor Dowell . . . .” Ex. Vol., State’s Ex. 1.
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Sufficient evidence supported Dowell’s conviction for dealing in
methamphetamine.
Conclusion
[33] Dowell’s claim of Fourth Amendment error was waived, and sufficient
evidence proved his possession of the incriminating evidence needed to convict.
For these reasons, Dowell’s convictions are affirmed.
[34] Affirmed.
Robb, J., and Brown, J., concur.
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