Tapely v. State

886 N.E.2d 61

Gary TAPELY II, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 42A01-0708-CR-359.

Court of Appeals of Indiana.

May 13, 2008.

Stephen R. Murphy, Jr., Murphy & Murphy, LLC, Vincennes, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MAY, Judge.

Gary Tapely II was convicted of Class D felony possession of two or more precursors with the intent to manufacture methamphetamine. The house where Tapely was found contained substantial evidence of "multiple prior episodes of manufacturing" methamphetamine. (Appellant's Br. at 4.) Tapely asserts he could not be guilty of possession with intent to manufacture because the house did not contain precursors "sufficient to begin or otherwise advance the process of manufacturing." (Id.) We affirm.

FACTS AND PROCEDURAL HISTORY

Late in the evening on September 8, 2004, Tapely arrived at the home of Christopher John Hand. Tapely helped Hand light incense to cover the smell of ether after Hand opened the can in the kitchen to "clean" the ether in water. (Tr. at 448.) Later, Hand and Tapely's brother, who had been in the basement stripping lithium batteries, left to go out in the country to finish manufacturing a batch of methamphetamine. Tapely knew what they were doing, but stayed at the residence.

Around 1:30 a.m. on September 9, 2004, the Vincennes Police Department received a report of a methamphetamine lab in the vicinity of the hospital. Police officers drove to the area and detected the odor of ether. Upon locating the strongest concentration of ether, the officers parked their cars and began walking through the neighborhood to pinpoint the origin of the smell. The smell appeared to be coming from Hand's home.

As the officers approached Hand's house to knock on the door, a white car passed one of the marked police cars on the street. The driver began honking the horn as the car passed Hand's house. There were no other cars in the vicinity to prompt the honking in the early morning hours. Just after the honking, the lights in Hand's house flickered off and on eight or ten times.

Tapely answered the front door thirty seconds after the officers knocked. The officers "explained to him that we smelled an odor of ether coming from this residence." (Id. at 158.) Tapely claimed he did not smell anything. One officer had Tapely sit on the front steps of the house while another went to obtain a search warrant for Hand's residence.

Tapely was alone in the residence. On the kitchen counter, police found a blender with white powder residue, which turned out to be 26 grams of "pill dough." (Id. at 413.) A chest freezer in the basement smelled of ammonia, but officers found no anhydrous ammonia in the house. Coffee filters in the kitchen trash and in a cooler in the basement contained a combined total of 26.47 grams of pseudoephedrine or ephedrine. Also found were an empty ether can by the kitchen trash, stripped and unstripped lithium batteries, syringes, twelve one-gallon cans of camp fuel,¹ acids, ammonia particles, nine HCL generators, and empty cold tablet boxes and blister packs.

DISCUSSION AND DECISION

Tapely asserts the evidence is insufficient to support his conviction.

In reviewing sufficiency of the evidence claim, we will not reweigh the evidence or assess the credibility of the witnesses. We will consider only the evidence most favorable to the judgment, together with all reasonable and logical inferences to be drawn therefrom. The conviction will be affirmed if there is substantial evidence of probative value to support the conviction of the trier of fact. A judgment based on circumstantial evidence will be sustained if the circumstantial evidence alone supports a reasonable inference of guilt.

Richardson v. State, 856 N.E.2d 1222, 1227 (Ind.Ct.App.2006) (citations omitted), trans. denied.

The State charged Tapely with possession of precursors with intent to manufacture methamphetamine. See Ind.Code § 35-48-4-14.5(e) ("A person who possesses two (2) or more chemical reagents or precursors with the intent to manufacture ... Methamphetamine, a schedule II controlled substance under IC 35-48-2-6 ... commits a Class D felony."). The charging instrument alleged Tapely possessed "Ether, Ephedrine/Pseudoephedrine, and Lithium...