ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ROSS G. THOMAS STEVE CARTER
Dillon Law Office Attorney General of Indiana
CECELIA K. HEMPHILL
Deputy Attorney General
COURT OF APPEALS OF INDIANA
JEREMY BUSH, )
vs. ) No. 69A01-0201-CR-22
STATE OF INDIANA, )
APPEAL FROM THE RIPLEY CIRCUIT COURT
The Honorable Carl Taul, Judge
Cause No. 69C01-0006-CF-30
August 12, 2002
OPINION - FOR PUBLICATION
Jeremy Bush appeals his convictions for dealing in a schedule II controlled substance,
a class B felony, and possession of reagents or precursors with the intent
to manufacture methamphetamine, a class D felony. We affirm in part and
reverse in part.
The issue Bush raises on appeal is whether there is sufficient evidence to
support each of his convictions. We address sua sponte, however, whether Bushs
conviction for possession of reagents or precursors with intent to manufacture methamphetamine is
a lesser included offense of dealing in methamphetamine by manufacturing it.
The facts most favorable to the judgment are that on June 27, 2000,
Indiana State Police Officer Grant Martin obtained a search warrant for Bushs residence
to search for evidence of marijuana. Inside the residence, Martin found items
associated with the manufacturing of methamphetamine. Martin obtained a second search warrant,
pursuant to which the Indiana State Police clandestine lab team searched the residence.
Based on the evidence discovered during the search, the State charged Bush with
four counts relating to possession and possession with the intent to deliver controlled
substances. The State ultimately dismissed two counts and amended the remaining two,
which charged Bush with dealing in a controlled substance and possession of precursors.
After a jury trial, Bush was convicted as charged.
I. Dealing in a Schedule II Controlled Substance
When reviewing a claim of insufficient evidence, we consider only evidence that supports
the verdict, and draw all reasonable inferences therefrom. Warren v. State, 725
N.E.2d 828, 834 (Ind. 2000). We neither reweigh the evidence nor judge
the credibility of witnesses. Id. We uphold a conviction if there
is substantial evidence of probative value from which a jury could have found
the defendant guilty beyond a reasonable doubt. Id. Circumstantial evidence alone
is sufficient to sustain a conviction. Id.
Indiana Code Section 35-48-4-2(a)(1) provides that a person is guilty of dealing in
a schedule II controlled substance if he knowingly or intentionally manufactures methamphetamine.
Bushs argument is based on the fact that the police found no methamphetamine
at the scene and no evidence was found directly establishing that methamphetamine had
been manufactured at the scene. He maintains that without proof that the
controlled substance methamphetamine had in fact been produced, the evidence was insufficient to
sustain the conviction . . . . Appellants Br. p. 7. He
contends that the proper charge would have been attempt to manufacture.
The police found several items used in the manufacture of methamphetamine, including a
can of denatured alcohol, a coffee grinder with white residue in it, empty
containers of tincture of iodine and hydrogen peroxide, bottles of mini-thins that contain
pseudoephedrine, and a turkey baster. The police also recovered two jars of
liquids, both of which contained ephedrine or pseudoephedrine. A forensic scientist with
the Indiana State Police testified that the only use for soaking pseudoephedrine pills
in alcohol is the manufacture of methamphetamine. The police also found two
boxes of nasal decongestants, which held plastic bags of white powder; these also
contained ephedrine or pseudoephedrine. In a burn pile in the yard, the
police recovered numerous burnt blister packs with pseudoephedrine writing. The police also
recovered a notebook containing instructions for extracting pseudoephedrine from mini-thin tablets and purified
iodine crystals using tincture of iodine and hydrogen peroxide.
The States expert testified that this was an in process lab, meaning that
the process of making methamphetamine had begun, but had not been completed.
App. pp. 15, 16, 18. Bush admits the State presented evidence that
items found at the scene could be used to make methamphetamine and that
some of the steps which could be taken to manufacture methamphetamine were in
progress at the scene. Appellants Br. p. 7.
The evidence presented by the State is sufficient to establish that he was
in the process of manufacturing methamphetamine. Indiana Code Section 35-48-1-18 defines manufacture
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
Clearly, there was evidence that Bush was producing, preparing, and processing methamphetamine, all
of which are encompassed in the definition of manufacture. The statute does
not state that the process must be completed or that there must actually
be a final product before it applies. When interpreting a statute, we
independently review the statutes meaning and apply it to the facts of the
case under review. Bolin v. Wingert, 764 N.E.2d 201, 204 (Ind. 2002).
If a statute is unambiguous, that is, susceptible to but one meaning,
we must give the statute its clear and plain meaning. Id.
We presume the legislature intended logical application of the language used in the
statute, so as to avoid unjust or absurd results. Id.
Common sense dictates that we reach this conclusion to avoid an absurd result.
We refer to a plant that makes widgets as a widget manufacturing
plant because it is engaged in the process of making them. A
person visiting a plant that contains the necessary parts and instructions for making
widgets could reasonably conclude that he is visiting a plant that manufactures widgets,
even if he never actually sees a completed widget. Likewise, a reasonable
juror in this case could certainly conclude that Bush manufactured methamphetamine based upon
the circumstantial evidence of its production. In fact, there was no other
reasonable explanation for the evidence found at the house other than that he
was in the process of making methamphetamine. Bush does not deny that.
Thus, with these facts, we conclude that there was more than sufficient
evidence to establish Bush was in the process of manufacturing methamphetamine, which is
proscribed by Indiana Code Sections 35-48-4-2(a) and 35-48-1-18.
II. Possession of Reagents or Precursors
Bush next challenges the sufficiency of the evidence supporting his conviction for possession
of reagents or precursors with the intent to manufacture methamphetamine. We conclude
sua sponte, however, that this offense is necessarily included in Bushs conviction for
dealing in methamphetamine by manufacturing it and reverse the possession of precursors conviction
on that basis.
Today, we also decide Iddings v. State, -- N.E.2d --, No. 06A04-0107-CR-286 (Ind.
Ct. App. August 12, 2002), in which we state as follows:
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 counts, judgment and sentence may not be entered against the defendant for
the included offense. Indiana Code Section 35-41-1-16 states:
Included offense means 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.
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.
Zachary v. State, 469 N.E.2d 744, 749 (Ind. 1984).
. . . . Indiana Code Section 35-48-4-2(a)(1)(A) provides that a person
who knowingly or intentionally manufactures a schedule II controlled substance, which includes methamphetamine,
commits dealing in a schedule II controlled substance, a Class B felony.
Indiana Code Section 35-48-4-14.5(b) provides that a person who possesses two or more
chemical reagents or precursors with the intent to manufacture methamphetamine commits a Class
D felony. 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
. . . . If each offense is established by proof of
an element not contained in the other, Indiana Code Section 35-38-1-6 does not
preclude conviction and sentence for both offenses. Ingram v. State, 718 N.E.2d
379, 381 (Ind. 1999). If the evidence indicates that one crime is
independent of another crime, it is not an included offense. See id.
(declining to hold defendants criminal confinement conviction was lesser included offense of criminal
deviate conduct and sexual battery where force or threat of force went beyond
that necessary to effectuate those offenses). Section 35-38-1-6 only precludes convictions on
multiple counts where those counts had identical elements of proof. See Goudy
v. State, 689 N.E.2d 686, 698 (Ind. 1997) (vacating attempted carjacking conviction as
lesser included offense of attempted robbery but emphasizing that it was necessary to
do so only because both offenses involved the attempted taking of the same
motor vehicle). Thus, whether an offense is included in another within the
meaning of Section 35-38-1-6 requires careful examination of the facts and circumstances of
each particular case.
Slip op. pp. 14-16.
In Iddings, we hold the defendants conviction for possessing the precursors of methamphetamine
was not included within his conviction for manufacturing methamphetamine because the evidence recovered
by the police revealed that two independent offenses had been committed: (1)
the defendant had already completed manufacturing some methamphetamine and (2) he possessed precursors
with intent to make more of the drug. Slip op. pp. 16-17.
In the present case, Bushs conviction for manufacturing methamphetamine was based exclusively
on his possession of the precursors of that drug in circumstances suggesting that
he was in the process of manufacturing it. In contrast to Iddings,
there was no direct evidence recovered that Bush had yet succeeded in completing
a batch of the drug. We cannot escape the conclusion, under these
facts and circumstances, that the same evidence establishing Bush was knowingly or intentionally
manufacturing methamphetamine also establishes that he possessed methamphetamine precursors with the intent to
manufacture the drug, and vice versa. It is impossible to fairly state
that the manufacturing and possession of precursors offenses in this case were clearly
independent of each other, as was the case in Iddings. Although the
fact that police did not recover any completed methamphetamine from Bushs residence does
not preclude his conviction for manufacturing the drug, we hold that such circumstance
does preclude his additional conviction for possessing methamphetamine precursors with intent to manufacture.
Bushs conviction for possessing precursors of methamphetamine must be reversed, in accordance
with Indiana Code Section 35-38-1-6.
The evidence is sufficient to support Bushs conviction for dealing in methamphetamine by
manufacturing it. Under the particular facts and circumstances of this case, however,
Bushs conviction for possessing precursors of methamphetamine is included within his conviction for
manufacturing and must be reversed. We affirm Bushs conviction for dealing in
a schedule II controlled substance and reverse his conviction for possessing reagents or
Affirmed in part and reversed in part.
KIRSCH, J., and MATHIAS, J., concur.