FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

LEANNA WEISSMANN GREGORY F. ZOELLER

Lawrenceburg, Indiana Attorney General of Indiana

JUSTIN F. ROEBEL

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

DUSTIN JACK GIFFORD, )

)

Appellant-Defendant, )

)

vs. ) No. 40A05-1304-CR-197

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE JENNINGS CIRCUIT COURT

The Honorable Jon W. Webster, Judge

Cause No. 40C01-1207-FD-154

October 10, 2013

OPINION - FOR PUBLICATION

CRONE, Judge
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Case Summary

Dustin Jack Gifford appeals his conviction for class D felony possession of chemical 

reagents or precursors with the intent to manufacture a controlled substance. The sole issue 

presented for our review is whether the State presented sufficient evidence to sustain the 

conviction. Finding the evidence insufficient, we reverse.

Facts and Procedural History

The facts most favorable to the conviction indicate that, on June 2, 2012, Katrina 

Roush and her boyfriend, Jared Bonds, were hanging out with Gifford and Gifford’s father, 

Denver, at Gifford’s house in Jennings County. Gifford suggested that the group travel to 

Jefferson County to “get boxes” of pseudoephedrine. Tr. at 119. The plan was to eventually 

sell the boxes to someone who manufactured methamphetamine, but they didn’t yet “have a 

purchaser or nothing.” Id. at 121.

Denver drove the group to Madison in his van. Gifford gave Roush and Bonds money

to buy pseudoephedrine. Denver and Gifford waited in the van while Roush and Bonds went 

into a CVS pharmacy and each bought a ninety-six-count package of nasal decongestant 

which contained pseudoephedrine. A CVS employee was suspicious regarding the purchases 

because Roush and Bonds had driven from a different county just to buy nasal decongestant. 

The employee contacted Madison City Police Officer Jonathan Simpson.

Officer Simpson, who was in plain clothes and in an unmarked vehicle, followed the 

van from the CVS to the Madison Walmart. He watched as Gifford and another man went 

into the store and saw them purchase lithium batteries. The group left Walmart and drove 
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into Jennings County, where the van was stopped by uniformed officers for a traffic 

infraction. Denver, who was driving, consented to a search of the vehicle. Officers found 

one box of pseudoephedrine in Roush’s purse and one box of pseudoephedrine in the driver’s 

side rear door. Gifford, who had been sitting in the front passenger seat, told officers that the 

batteries he had purchased were “hidden in the dash” on the passenger side of the vehicle. 

Id. at 145. Officers discovered lithium batteries “shoved up” behind the door of a fuse box. 

Id. Gifford claimed that the batteries were for his camera and that he hid them because “he 

knew that it did not look good to have [pseudoephedrine] and lithium batteries in the same 

vehicle.” Id. at 146. Bonds revealed to officers that the plan was to “make some calls and 

line up a buyer or trade” the pseudoephedrine for “a half a gram of meth.” Id. at 151.

On July 31, 2012, the State charged Gifford with class D felony possession of 

chemical reagents or precursors with the intent to manufacture a controlled substance. 

Following a trial, the jury found Gifford guilty as charged. This appeal ensued. 

Discussion and Decision

Gifford challenges the sufficiency of the evidence to support his conviction. When 

reviewing insufficiency of the evidence claims, we neither reweigh evidence nor judge 

witness credibility. Mathews v. State, 978 N.E.2d 438, 443 (Ind. Ct. App. 2012), trans. 

denied (2013). Instead, we examine the evidence and reasonable inferences most favorable 

to the verdict. Id. If there is evidence of probative value from which a reasonable trier of 

fact could find the defendant guilty beyond a reasonable doubt, we will affirm. Id. Reversal 

is appropriate only when reasonable persons would not be able to form inferences as to each 
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material element of the offense. Perez v. State, 872 N.E.2d 208, 213 (Ind. Ct. App. 2007), 

trans. denied.

To prove that Gifford committed class D felony possession of chemical reagents or 

precursors with the intent to manufacture a controlled substance, the State was required to 

prove beyond a reasonable doubt that Gifford possessed two or more chemical reagents or 

precursors, specifically pseudoephedrine and lithium metal,

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“with the intent to manufacture”

methamphetamine. See Ind. Code § 35-48-4-14.5(e). On appeal, Gifford claims that the 

State presented insufficient evidence regarding both his possession and his intent. Because 

we find the lack of evidence regarding intent to be dispositive, we need not address the 

sufficiency of the evidence regarding possession.

The State concedes that the evidence establishes that Gifford’s undisputed intent was 

to eventually sell the pseudoephedrine to someone else who would use it to manufacture 

methamphetamine.2 There was no evidence presented that Gifford personally intended to 

manufacture methamphetamine. The State recognizes that another panel of this Court has 

interpreted the identical language “with the intent to manufacture” methamphetamine in an 

analogous provision of Indiana Code Section 35-48-4-14.5 to require proof that the person 

charged with possession must personally have the intent to manufacture methamphetamine. 

Specifically, in Prater v. State, 922 N.E.2d 746, 749 (Ind. Ct. App. 2010), trans. denied, we 

 

1

Pseudoephedrine and lithium metal are both listed as chemical reagents or precursors. See Ind. Code 

§ 35-48-4-14.5(a)(2) and -(a)(8).

2 The State acknowledges that this was the only theory of intent argued by the deputy prosecutor at 

trial.
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analyzed that portion of the statute providing that “[a] person who possesses anhydrous

ammonia ... with the intent to manufacture methamphetamine” commits a class D felony. 

Ind. Code § 35-48-4-14.5(c). We concluded that the plain language used by the legislature, 

namely “with the intent to manufacture,” requires that the person who possesses anhydrous 

ammonia must also have the personal intent to manufacture methamphetamine. Prater, 922 

N.E.2d at 750. 

Acknowledging the clear applicability of our decision in Prater, the State urges that 

Prater was decided erroneously and that we should reexamine the language “with the intent 

to manufacture” and determine that our legislature intended to criminalize mere possession of 

chemical reagents or precursors even absent personal intent to manufacture a controlled 

substance. We believe that the plain language of the statute is clear, and we decline the 

State’s invitation to revisit the issue. As the State presented no evidence to the jury that 

Gifford personally intended to manufacture a controlled substance as required by Indiana 

Code Section 35-48-4-14.5(e), we reverse his conviction. 3

Reversed.

BARNES, J., and PYLE, J., concur.

 

3 The State maintains that the jury was free to disregard the deputy prosecutor’s argument that 

Gifford’s undisputed intent was to eventually sell the precursors and that the jury could have instead 

reasonably inferred that Gifford intended to personally manufacture methamphetamine. However, as stated 

above, there was no evidence presented that Gifford intended to personally manufacture methamphetamine.