Court of Appeals of Indiana | Memorandum Decision 48A02-1407-CR-477 | May 29, 2015 Page 1 of 12

MEMORANDUM DECISION

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

John T. Wilson

Anderson, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Graham T. Youngs

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Tony Julian,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

May 29, 2015

Court of Appeals Case No.

48A02-1407-CR-477

Appeal from the Madison Circuit 

Court, the Honorable Thomas 

Newman, Jr., Judge

Trial Court Case No.

48C03-1211-FB-2213

Mathias, Judge.

[1] Tony Julian (“Julian”) appeals his convictions in Madison Circuit Court for 

Class B felony dealing in methamphetamine, Class D felony possession of 

chemical reagents or precursors with the intent to manufacture a controlled 

substance, Class D felony maintaining a common nuisance, and Class A 
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misdemeanor false informing. Julian raises three issues on appeal, which we 

restate as the following two: 1) whether the trial court committed fundamental 

error by admitting into evidence items seized during the warrantless search of 

Julian’s apartment; and 2) whether the State presented sufficient evidence to 

prove that Julian constructively possessed the evidence seized during the search 

of his apartment.

Facts and Procedural History

[2] On November 28, 2012, Madison County Drug Task Force Officer Leann 

Dwiggins (“Officer Dwiggins”), who was investigating methamphetamine 

activity in Anderson, was attempting to serve an arrest warrant on Christopher 

Douglas (“Douglas”). Officer Dwiggins learned that Douglas might be hiding 

in an apartment located at 2325 Broadway. 

[3] Detective Cliff Cole (“Detective Cole”) proceeded to the apartment at that 

address, which was leased to Julian and described as an “upstairs apartment 

behind the Sunny Bunny.” Tr. p. 157. As Detective Cole approached the front 

door, he noticed a odor that he associated with the manufacture of 

methamphetamine. The detective knocked on the front door and announced his 

presence. Julian responded and identified himself without opening the door. 

Julian also told the Detective Cole that Douglas was not inside the apartment 

and denied the detective’s request to enter his apartment. 

[4] Given the danger inherent in manufacturing methamphetamine, Detective Cole 

determined that it was necessary to enter Julian’s apartment to ensure the safety 
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of the residents and neighbors. Another detective with the task force assured 

Detective Cole that it was permissible to enter the apartment due to the safety 

risks inherent in manufacturing methamphetamine.

[5] Detective Cole returned to the front door of the apartment and knocked. He 

asked Julian to open the door. When Julian refused, the detective told him that 

he had three seconds to open the door before the detective forced it open.

[6] Julian opened the door and Detective Cole entered the apartment. The 

chemical smell associated with the manufacture of methamphetamine was 

strong. Detective Cole and accompanying officers quickly located Douglas 

hiding inside the bathroom in the apartment. Julian stated that he was not 

aware that Douglas was inside his apartment.

[7] Detective Cole continued to search the apartment because, due to the strength 

of the odor, he believed that either methamphetamine had been recently 

manufactured or an active methamphetamine lab was inside the residence. In a 

closet, Detective Cole located a backpack and a green storage tote. He opened 

the lid to the tote and unzipped the backpack. The detective found a 

methamphetamine kit, i.e. funnels, pliers, a hair dryer, and Coleman fuel. In 

the kitchen, the odor was especially strong, and the detective found a trash bag. 

Through the plastic bag, Detective Cole saw what he believed to be a “one pot” 

methamphetamine lab. Julian told the officers he did not know that the items 

were in his apartment.
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[8] Julian then gave the officers permission to search the rest of the apartment, and 

they found 3.02 grams of methamphetamine in Julian’s bathroom where 

Douglas had been hiding. The officers also found stripped lithium batteries and 

casings, soiled coffee filters, a strainer, a plastic bottle with a tube running from 

it, lye, drain opener, more bottles of Coleman fuel, and rock salt. All of these 

items are commonly used in the manufacture of methamphetamine.

[9] Julian was charged with Class B felony dealing in methamphetamine, Class D 

felony possession of methamphetamine, Class D felony possession of chemical 

reagents or precursors with the intent to manufacture a controlled substance, 

Class D felony maintaining a common nuisance, and Class A misdemeanor 

false informing. A jury trial was held on May 15, 2014.

[10] At trial, Douglas testified that he and Julian had an agreement that Douglas 

could manufacture methamphetamine in his apartment in exchange for one-half 

gram of the resulting methamphetamine. Douglas stated that Julian was inside

the apartment when he began the manufacturing process but left the apartment 

for approximately forty minutes. Julian testified that he allowed Douglas to stay 

in the apartment but did not know that Douglas was manufacturing 

methamphetamine until he returned to the apartment a few minutes before the 

police arrived.

[11] The jury returned a guilty verdict on all counts except Class D felony possession 

of methamphetamine. The trial court ordered Julian to serve an aggregate tenyear sentence for his Class B felony dealing in methamphetamine, Class D 
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felony possession of chemical reagents or precursors with the intent to 

manufacture a controlled substance, Class D felony maintaining a common 

nuisance, and Class A misdemeanor false informing convictions. Julian now 

appeals.1

I. Fundamental Error

[12] Julian argues that the warrantless entry into his apartment violated his rights 

under the Fourth Amendment to the United States Constitution and Article 

One, Section Eleven of the Indiana Constitution. However, at trial, Julian 

affirmatively stated that he had no objection to the admission of the evidence

seized during the warrantless search. An “‘appellant cannot on the one hand 

state at trial that he has no objection to the admission of evidence and thereafter 

in this Court claim such admission to be erroneous.’” Halliburton v. State, 1 

N.E.3d 670, 678-79 (Ind. 2013) (quoting Harrison v. State, 258 Ind. 359, 363, 281 

N.E.2d 98, 100 (1972)). Consequently, Julian has waived appellate review of 

his claim of error.2 See, e.g., Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010)

(holding that defendant, who did not object to evidence upon introduction of 

evidence and who affirmatively stated he had no objection, waived review of 

his argument that evidence was unlawfully seized).

 1 We held oral argument in this case at Cathedral High School in Indianapolis, Indiana on April 20, 2015. 

We extend our gratitude to the administration, faculty, and students for their generous hospitality. We would 

also like to congratulate the Cathedral High School “We the People” Team for being named Indiana State 

Champions for the 2014-15 school year. We also thank counsel for their written and oral advocacy.

2 In his appellate brief, Julian cites to Article One, Section Eleven and to the correct standard. However, he 

failed to present argument separate from his analysis of his Fourth Amendment claim. Therefore, he also 

waived his Article One, Section Eleven claim for the purposes of appeal. See Russell v. State, 993 N.E.2d 1176, 

1181 (Ind. Ct. App. 2013). 
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[13] However, “[a] claim that has been waived by a defendant’s failure to raise a 

contemporaneous objection can be reviewed on appeal if the reviewing court 

determines that a fundamental error occurred.” Id.; see also Konopasek v. State, 

946 N.E.2d 23, 27 (Ind. 2011) (stating that “‘[f]ailure to object to the admission 

of evidence at trial normally results in waiver and precludes appellate review 

unless its admission constitutes fundamental error’”) (citation omitted). “The 

fundamental error exception is ‘extremely narrow, and applies only when the 

error constitutes a blatant violation of basic principles, the harm or potential for 

harm is substantial, and the resulting error denies the defendant fundamental 

due process.’” Brown, 929 N.E.2d at 207 (citation omitted).

[14] In his brief, Julian cites the correct authority discussing the fundamental error 

standard, but he argues only that “warrantless entry into the residence . . . and 

subsequent search was not only a violation of his constitutional rights under” 

the Fourth Amendment and Article One, Section Eleven, “but was 

fundamental error.” Appellant’s Br. at 7. Julian does not explain how 

admission of the evidence found during the search of his apartment denied him 

fundamental due process. Julian has therefore waived this argument for the 

purposes of appeal. See Ind. Appellate Rule 46(A)(8)(a); Cooper v. State, 854 

N.E.2d 831, 834 n.1 (Ind. 2006).

[15] Waiver notwithstanding, Julian faces the heavy burden of demonstrating that 

the “alleged errors are so prejudicial to the defendant’s rights as to ‘make a fair 

trial impossible.’” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014) (quoting Benson 

v. State, 762 N.E.2d 748, 756 (Ind. 2002)).
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In other words, to establish fundamental error, the defendant 

must show that, under the circumstances, the trial judge erred in 

not sua sponte raising the issue because alleged errors (a) 

constitute clearly blatant violations of basic and elementary 

principles of due process and (b) present an undeniable and 

substantial potential for harm. The element of such harm is not 

established by the fact of ultimate conviction but rather depends 

upon whether [the defendant’s] right to a fair trial was 

detrimentally affected by the denial of procedural opportunities 

for the ascertainment of truth to which he otherwise would have 

been entitled.

***

We stress that “[a] finding of fundamental error essentially 

means that the trial judge erred . . . by not acting when he or she 

should have. . . .” Fundamental error is meant to permit 

appellate courts a means to correct the most egregious and 

blatant trial errors that otherwise would have been procedurally 

barred, not to provide a second bite at the apple for defense 

counsel who ignorantly, carelessly, or strategically fail to preserve 

an error.

Id. at 668 (internal citations omitted).

[16] Detective Cole’s initial warrantless entry into Julian’s apartment did not violate 

the Fourth Amendment because the odor of methamphetamine manufacturing 

is an established exigent circumstance. See Holder v. State, 847 N.E.2d 930 (Ind. 

2006) (holding that if probable cause exists to believe that an occupied residence 

contains a methamphetamine laboratory, then exigent circumstances exist to 

permit a warrantless search of the residence to ensure the safety of the 

occupants). Even if we assume for the sake of argument that Detective Cole’s 

continued warrantless search of Julian’s apartment after his initial walk through 

did not yield any evidence of an active methamphetamine lab violated the 
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Fourth Amendment, under the facts and circumstances of this case, Julian was 

not denied the right to a fair trial. 

[17] Even though the evidence seized during the warrantless search significantly 

contributed to Julian’s conviction, Julian specifically declined to object to 

admission of the evidence. See Tr. p. 141 (referring to the photographs of the 

items found in Julian’s apartment and stating “I’m going to allow each and 

everyone [sic] of them in”); see also Wright v. State, 828 N.E.2d 904, 907 (Ind. 

2005) (stating that a party may not take advantage of an error that he invites).

Julian declined to object because his defense at trial was that he was not aware 

that Douglas planned to manufacture methamphetamine in his apartment and 

he was not present in the apartment during the manufacture. Accordingly, any 

error in the admission of that evidence did not affect Julian’s right to 

“ascertainment of truth,” particularly in light of his chosen defense. For all of 

these reasons, we conclude that the trial court did not commit fundamental 

error by failing to sua sponte suppress the evidence seized during the warrantless 

search.

II. Sufficient Evidence

[18] Finally, Julian argues that the State failed to prove that he actually or 

constructively possessed the items used to manufacture methamphetamine that 

were discovered during the search of his apartment; therefore, his convictions 

are not supported by sufficient evidence. When the sufficiency of evidence is 

challenged, we neither reweigh the evidence nor judge the credibility of 
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witnesses. Chappell v. State, 966 N.E.2d 124, 129 (Ind. Ct. App. 2012) (citing

McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)), trans. denied. Rather, we 

recognize the exclusive province of the trier of fact to weigh any conflicting 

evidence, and we consider only the probative evidence supporting the 

conviction and the reasonable inferences to be drawn therefrom. Id. If

substantial evidence of probative value exists from which a reasonable trier of 

fact could have drawn the conclusion that the defendant was guilty of the crime 

charged beyond a reasonable doubt, then the verdict will not be disturbed. 

Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008).

[19] On the date he committed the offenses, Julian’s crimes were statutorily defined 

as follows:

Class B felony dealing in methamphetamine: “A person who: 

knowingly or intentionally manufactures . . . methamphetamine, 

pure or adulterated . . . commits dealing in methamphetamine[.]” 

And manufacturing is defined as “the production, preparation, 

propagation, compounding, conversion, or processing of a 

controlled substance, either directly or indirectly by extraction 

from substances of natural origin, independently by means of 

chemical synthesis, or by a combination of extraction and 

chemical synthesis, and includes any packaging or repackaging of 

the substance or labeling or relabeling of its container.” I.C. §§ 

35-48-4-1.1(a); 35-48-1-18.

Class D felony maintaining a common nuisance: “A person 

who knowingly or intentionally maintains a building, structure, 

vehicle, or other place that is used one (1) or more times . . . by 

persons to unlawfully use controlled substances; or . . . for 

unlawfully” manufacturing, keeping, offering for sale, selling, 

delivering, or financing the delivery of controlled substances, or 

items of drug paraphernalia as described in IC 35-48-4-8.5; 
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commits maintaining a common nuisance[.]” I.C. § 35-48-4-

13(b).

Class D felony possession of chemical reagents or precursors: 

“A person who possesses two (2) or more chemical reagents or 

precursors with the intent to manufacture a controlled substance 

commits a Class D felony.” I.C. § 35-48-4-14.5(e).

See also Appellant’s App. pp. 10-11.

[20] A person may be convicted of an offense if he actually or constructively 

possesses the contraband. See Mack v. State, 23 N.E.3d 742, 759 (Ind. Ct. App. 

2014).

Constructive possession is established by showing that the 

defendant has the intent and capability to maintain dominion 

and control over the contraband. . . . [W]hen possession of the 

premises is non-exclusive, the inference [of control] is not 

permitted absent some additional circumstances indicating 

knowledge of the presence of the contraband and the ability to 

control it. 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) location of the contraband is in close 

proximity to items owned by the defendant.

Id. And, “‘a residence is controlled by the person who lives in it, and that 

person may be found in control of any drugs’” or contraband discovered 

therein, “‘whether he is the owner, tenant, or merely an invitee.’” Id. at 758 

(quoting Allen v. State, 798 N.E.2d 490, 501 (Ind. Ct. App. 2003)).

[21] Julian argues that the evidence is insufficient to support his convictions because 

he did not have exclusive possession of his apartment. Douglas was inside 
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Julian’s apartment, although with Julian’s consent. Also, Julian testified that 

left Douglas alone in the apartment for a significant period of time and returned 

home shortly before the police arrived.

[22] However, Julian’s self-serving testimony was weighed against Douglas’s 

testimony that Julian allowed Douglas to use his apartment to “cook” 

methamphetamine, and in exchange, Douglas gave him a portion of the 

resulting methamphetamine. On the date the offenses were committed, Julian 

allowed Douglas to enter his apartment, and Douglas had a backpack and tote 

containing the chemicals and precursors necessary to “cook” 

methamphetamine. Julian was inside the apartment when Douglas began 

manufacturing and returned to the apartment approximately forty-five minutes 

later. When the officers arrived at Julian’s apartment just a few minutes after 

Julian returned home, the odor the officers associated with the manufacture of 

methamphetamine was strong. Therefore, the officers believed that either an 

active methamphetamine lab was in the apartment or methamphetamine had 

recently been manufactured. 

[23] At trial, Julian admitted that he knew that Douglas was a “meth cooker.” Tr. p. 

262. He also testified that he knew that Douglas had been manufacturing 

methamphetamine in his apartment “[a]t the time the police came.” Tr. p. 262. 

Julian also admitted that he lied to the officers when he told them that Douglas 

was not in his apartment. 
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[24] Finally, Julian argues that mere possession of the chemicals reagents and 

precursors is not sufficient evidence to prove that he manufactured 

methamphetamine. However, the officers found methamphetamine in Julian’s

bathroom, the odor associated with the manufacture of methamphetamine 

emanated from the apartment, and Detective Cole found a “one-pot” 

methamphetamine lab in the trash in the apartment. 

[25] For these reasons, we conclude that the State’s evidence establishing Julian’s 

control over the apartment, the agreement between Douglas and Julian,3 and 

Julian’s own admissions and inconsistent statements are sufficient evidence that 

Julian committed Class B felony dealing in methamphetamine, Class D felony 

possession of chemical reagents or precursors with the intent to manufacture a 

controlled substance, and Class D felony maintaining a common nuisance. 

Conclusion

[26] The trial court did not commit fundamental error by admitting into evidence 

the items seized during the warrantless search of Julian’s apartment. The 

evidence is sufficient to support Julian’s convictions.

[27] Affirmed.

Kirsch, J., and Bradford, J., concur. 

 3 The jury was instructed on accomplice liability at trial. See I.C. § 35-41-2-4 (“A person who knowingly or 

intentionally aids, induces, or causes another person to commit an offense commits that offense[.]”); Tr. p. 

308.