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: ATTORNEYS FOR APPELLEE:

TIMOTHY P. BRODEN GREGORY F. ZOELLER

Lafayette, Indiana Attorney General of Indiana

RYAN D. JOHANNINGSMEIER

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

ROBERT W. EVANS, )

)

Appellant-Defendant, )

)

vs. ) No. 79A04-1308-CR-386

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE TIPPECANOE SUPERIOR COURT 

The Honorable Thomas H. Busch, Judge

Cause No. 79D02-1211-FA-16 

May 1, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Chief Judge
2

Case Summary

Robert Evans appeals his conviction for Class A felony dealing in 

methamphetamine. He argues that the trial court improperly admitted evidence regarding 

the results of a Draeger pump instrument test, which tests for the presence of ammonia, 

without first establishing the test’s reliability. Additionally, Evans claims that the trial

court erred in refusing to instruct the jury on his proposed jury instruction on constructive 

possession. We find that the test results were properly admitted and the court did not err 

in refusing to give Evans’s tendered jury instruction. We therefore affirm the trial court. 

Facts and Procedural History

On an evening in November 2012, Pam Smith and Evans decided to make 

methamphetamine together. Evans and Pam went to Evans’s mother’s house to gather 

ingredients and tools to make methamphetamine. Tr. p. 231. The items were gathered and 

placed inside two backpacks, a black1 backpack and a pink backpack. There was a green 

two-liter bottle inside the black backpack. Id. at 189. 

After Evans’s mother’s house, Pam and Evans went to Kelley Brickey’s house. The 

group ingested methamphetamines before deciding to take a taxi cab to Pam’s house, which 

was located at 1533 N. 17th Street in Lafayette, Indiana (“the Smith Residence”), to make 

methamphetamine. Evans, Pam, and Brickey went into the house through the back door. 

Charles Hill, who lived directly behind the Smith Residence, saw Pam walking around the 

 

1 There is conflicting testimony as to whether the backpack carried by Evans was green or black. 

Compare Tr. p. 50 with Tr. p. 235. However, it is undisputed that Evans was carrying a dark-colored 

backpack when he entered the Smith Residence.
3

side of her house with a man and a woman that he did not recognize. Id. at 41. Pam and 

the man were carrying backpacks on their shoulders. Id. at 41, 50. 

Once inside the house, Brickey, Pam, and Evans went down into the basement. Pam 

and Evans gathered all of the supplies to begin the process of making methamphetamine. 

Brickey saw Evans putting pills in the green two-liter bottle. Meanwhile, Pam lit incense 

and hung blankets on the windows and at the basement entrance to prevent the smell from 

traveling into the other parts of the house.

Meanwhile, Hill went to the Smith Residence to retrieve four movies that he had 

lent to one of the occupants of the house. He noticed that the smell inside was a “deadly 

chemical smell.” Id. at 44. He grabbed his movies and ran out of the house. Id. at 45. 

Once outside, he fell to the ground because he could not stop coughing. Id. After he 

returned to his house, he called the police because he “knew [the odor] was something 

dangerous.” Id. 

Lafayette Police Department Officers Bernard Myers and Ryan French were 

dispatched to the Smith Residence in response to Hill’s call. When the officers arrived, 

they walked around the house, and Officer Myers noticed that a vent pipe was emitting 

exhaust from the furnace that smelled like ammonia—a common smell during the process 

of making methamphetamine. The officers then knocked on the door and spoke to 

Elizabeth Smith, the primary leaseholder of the house. Elizabeth allowed the officers into 

the house to investigate. 

The officers asked if there was anyone else in the house, and Elizabeth responded 

that her father was upstairs but she did not think anyone else was home. She then checked 
4

the basement door, but it was locked. Elizabeth called out to ask if anyone was in the 

basement. Pam, Elizabeth’s daughter, responded, and Elizabeth told Pam that the police 

were in the house. About a minute later, Pam emerged from the basement. 

Officer Myers noticed that the smell of ammonia was coming from the basement. 

Both officers went into the basement to investigate. Before going into the basement, the 

officers asked if anyone else was there. No one responded. As the officers walked down 

the basement stairs, Officer Myers noticed a blanket covering the threshold of the 

basement. Once he pushed aside the blanket, he experienced an overwhelming smell of 

ammonia. The smell was so overpowering that it was nearly impossible to breathe. Both 

officers coughed and their throats burned from the smell. The police saw Evans sitting on 

a chair and Brickey sitting on the bed. 

Officer Myers asked both Evans and Brickey to come to him because the odor of 

ammonia was so overwhelming. Officer Myers handcuffed Evans, and Officer French

escorted Brickey up the stairs. Pam was also handcuffed. The officers did not search the 

basement or collect any evidence because it was unsafe to do so. Id. at 65. After exiting 

the basement, the officers called the fire department, emergency medical services, and the 

Indiana State Police Lab Team. Evans, Brickey, and Pam were arrested that evening for 

their involvement in the production of methamphetamine. 

Indiana State Police Trooper Ryan Royer, a member of the Indiana State Police 

Clandestine Laboratory Response Team, was dispatched to the Smith Residence and

arrived around 1:00 a.m. with Troopers Sean Schaffer and Kent Wainscott. Trooper Royer 

found several items that were associated with manufacturing methamphetamine, including 
5

Rooto drain opener, lithium batteries, aluminum foil, coffee filters, Coleman camp fuel, 

salts, and cold packs containing ammonium nitrate. Id. at 120, 124-125, 139.

Trooper Royer also found a green soda bottle that he believed was the reaction 

vessel used to produce methamphetamine. He performed a Draeger test2to confirm that it

was used to produce methamphetamine,

3

and the bottle tested positive for ammonia or 

another basic amine.

4

 According to Trooper Royer, one can distinguish between ammonia 

and other basic amines based on differences in odor and temperature. Although Trooper 

Royer was not able to observe these differences because he was wearing gloves and a mask, 

Trooper Schaffer removed his personal protection equipment just as Trooper Royer was 

completing the Draeger test on the green bottle and noticed that it smelled like ammonia. 

Trooper Royer also examined a bottle cap from the basement and found methamphetamine 

residue on it. Id. at 171. Based on the items found, his observations in the basement, and 

the tests performed, Trooper Royer concluded that methamphetamine was being produced 

in the basement. 

The State charged Evans with Class A felony dealing in methamphetamine, Class 

C felony possession of a Schedule II controlled substance, and Class B felony possession 

of methamphetamine.

5

 Appellant’s App. p. 82-84. 

 

2 A Draeger test is a test where a tube is used to test for the presence and concentration of a particular 

chemical compound. Tr. p. 130. 

3 Trooper Royer tested the two-liter bottle for ammonia because anhydrous ammonia is one of the 

ingredients necessary to make methamphetamine. Tr. p. 112.

4 The tube labeled “ammonia” will test positive if ammonia or other basic amines are present in the 

chemical compound that is tested. 

5 Evans was charged with Class A felony dealing in methamphetamine instead of Class B felony 

dealing in methamphetamine because the Smith Residence is within 1000 feet of a public park. See Ind. 

Code § 35-48-4-1(b)(3)(B)(ii).
6

Just before trial, Evans filed a motion to suppress the results of the Draeger test 

because the State did not establish the test’s reliability. Id. at 71. The trial court held a 

hearing on the motion to suppress. At the hearing, Trooper Royer testified that he used the

Draeger test to determine if ammonia was present in the reaction vessel. The trial court 

decided to withhold judgment until a chemist could testify about whether the Draeger test 

is sufficiently reliable. Tr. p. 26-27.

The following day, Hailey Newton, an employee of the Laboratory Division of the 

Indiana State Police, testified outside the presence of the jury. She explained that she 

conducted a validation study of the Draeger test. According to Newton, there were no 

instances of false positives or false negatives. Id. at 86. The results of her study were also 

presented before the Clandestine Laboratory Investigating Chemist Association, and she 

was not familiar with any studies indicating that Draeger tests are unreliable. Id. at 87. 

The test is also used by the Drug Enforcement Agency and the Occupational Safety and 

Health Administration. Id.

Newton explained that a positive result on an ammonia Draeger tube indicates that 

ammonia or another basic amine is present. Moreover, that information combined with 

other observations, such as odor, temperature, or appearance of the chemical, can help one 

determine whether the substance tested was ammonia or another basic amine. Id. at 88, 

90-91. 

Officers must go through an annual eight-hour refresher course, which includes 

training on how to conduct a Draeger test. Ultimately, Newton stated that she believed the 

Draeger test is reliable. Id. at 86, 95-96. 
7

After Newton’s testimony, the trial court concluded:

The fact that ammonia or another basic amine was present in the bottle, I 

think is the sort of thing that is generally accepted in the scientific community 

as the proper use of a Draeger test and there is no evidence that it isn’t reliable 

and there is the evidence presented today that it is reliable. The---and 

especially in the context of how the jury should interpret the smell of 

ammonia that one or more witnesses will---at least two witnesses will testify 

to, the fact that there is a particular bottle which tested to have contained a 

basic amine is going to be, again, useful information that they won’t be able 

to deduce from their own experience, so that as a skilled witness, not as a 

scientist, the officer can testify as to what the results of his test were to the 

extent of presence or absence. So the motion in limine is overruled.

Id. at 100-101. The trial court also distinguished the facts in this case from those in West 

v. State, 805 N.E.2d 909 (Ind. Ct. App. 2004), trans. denied. In that case the trial court 

excluded the results of the Draeger test because an officer provided only an overview of 

his training and how the Draeger test functions. Here, however, a chemist specifically 

testified about the reliability of the Draeger test. Id. at 101. 

At the conclusion of the jury trial, Evans proposed a constructive-possession-in-ahome instruction, which stated:

Possession of something may take two forms. One can possess an 

item directly, meaning that he/she has actual physical control over the item. 

Or, one can possession [sic] something constructively, meaning that he/she 

has the capability and intent to possess the item, even though actual physical 

control is absent. Evidence has been presented that other individuals may 

have visited at, or resided in, Elizabeth Smith’s home. As such, possession 

of those premises was not exclusive to her. When possession of the premises 

on which drugs or their precursors is not exclusive, the inference of intent to 

maintain dominion and control over the items must be supported by 

additional circumstances pointing to the accused’s knowledge of the nature 

of the drugs and/or precursors and their presence in her home. These 

additional circumstances can include incriminating statements the accused 

made, attempted flight or furtive gestures, proximity of the substances to the 

accused, location of the substances within the accused’s plain view, and the 

combining of the substances with other items that the accused owned.
8

Appellant’s App. p. 59. The trial court denied Evans’s request because the instruction was 

already covered by the trial court’s constructive-possession instruction and because it 

unnecessarily emphasized that Elizabeth was the primary leaseholder of the Smith 

Residence. Tr. p. 317. Instead, the trial tendered Instruction No. 14.156 of the Indiana 

Pattern Jury Instructions on possession:

The word “possess” means to own or to exert control over. The word 

“possession” can take on several different, but related meanings.

There are two kinds of “possession”: actual possession and 

constructive possession. A person who knowingly has direct physical control 

of a thing at a given time is then in actual possession of it. A person who, 

although not in actual possession, knowingly has both the power and the 

intention at a given time to exercise control over a thing, either directly or 

through another person or persons, is then in constructive possession of it.

Possession may be sole or joint. If one person alone has actual or 

constructive possession of a thing, then possession is sole. If two or more 

persons share actual or constructive possession of a thing, then possession is 

joint.

Possession may be actual or constructive, and either alone or jointly 

with others.

Appellant’s App. p. 32-33; see also Indiana Pattern Jury Instruction No. 14.156—Criminal 

(3d ed. 12/2003). 

The jury found Evans guilty of all charges. At the sentencing hearing, the trial court 

merged Evans’s convictions for Class C felony possession of a Schedule II controlled 

substance and Class B felony possession of methamphetamine into his Class A felony 

dealing-in-methamphetamine conviction. Tr. p. 378-79. The trial court then sentenced 

Evans to forty years in the Department of Correction.

Evans now appeals.

Discussion and Decision
9

Evans raises two issues on appeal. First, he asserts that the trial court erred in 

admitting the results of the Draeger test. Second, he argues that the trial court erred in 

refusing to give his proposed jury instruction on constructive possession.

I. Admission of the Draeger Test Results

Evans first contends that the trial court erred in admitting the results of the Draeger 

test under Indiana Rule of Evidence 702. We review the trial court’s decision to admit 

evidence based on a scientific process under an abuse of discretion standard. Doolin v. 

State, 970 N.E.2d 785, 787 (Ind. Ct. App. 2012), trans. denied. An abuse of discretion 

occurs where the decision is clearly against the logic and effect of the circumstances. Id.

Under Indiana Rule of Evidence 702(b), expert scientific testimony is admissible 

only if reliability is demonstrated to the trial court. Id. Indiana Evidence Rule 702 provides 

that:

(a) If scientific, technical, or other specialized knowledge will assist the trier 

of fact to understand the evidence or to determine a fact in issue, a witness 

qualified as an expert by knowledge, skill, experience, training, or education, 

may testify thereto in the form of an opinion or otherwise.

(b) Expert scientific testimony is admissible only if the court is satisfied that 

the scientific principles upon which the expert testimony rests are reliable.

In determining whether scientific evidence is reliable, “the trial court must determine 

whether such evidence appears sufficiently valid—or, in other words, trustworthy—to 

assist the trier of fact.” West, 805 N.E.2d at 913. In so doing, the trial court must make a 

preliminary assessment of whether the reasoning or methodology underlying the testimony 

is scientifically valid and whether that reasoning or methodology can properly be applied 

to the facts in issue. Id. 
10

There is no specific test that must be considered in order to satisfy Rule 702(b). Id. 

The reliability of such evidence may be established “by . . . a sufficient foundation to 

persuade the trial court that the relevant scientific principles are reliable.” Bond v. State, 

925 N.E.2d 773, 779 (Ind. Ct. App. 2010), trans. denied. 

Our Supreme Court has explained that the factors enumerated in Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), are helpful in determining whether 

evidence is admissible under Indiana Evidence Rule 702(b). Turner v. State, 953 N.E.2d 

1039, 1050 (Ind. 2011). The Daubert factors include “whether the scientific theory or 

technique (1) can be and has been tested; (2) has been subjected to peer review and 

publication; (3) has a known or potential error rate; (4) is governed by maintained standards 

controlling its operation; and (5) has gained widespread acceptance in a relevant scientific 

community.” Bond, 925 N.E.2d at 779 (citing Daubert, 509 U.S. at 593-94). While all of 

these factors and additional factors may be relevant, none alone is dispositive, and not all

of these factors must be present for a trial court to find certain evidence reliable. Id.; see 

also McGrew v. State, 682 N.E.2d 1289, 1292 (Ind. 1997). “‘The adoption of Rule 702 

reflected an intent to liberalize, rather than to constrict, the admission of reliable scientific 

evidence.’” Turner, 953 N.E.2d at 1050 (quoting Sears Roebuck & Co. v. Manuilov, 742 

N.E.2d 453, 460 (Ind. 2001)). However, the proponent of the scientific evidence bears the 

burden of persuading the trial court that it is more likely than not that the scientific 

principles upon which the evidence relies are reliable. Burnett v. State, 815 N.E.2d 201, 

209 (Ind. Ct. App. 2004). 
11

Turning to this case, the State established a sufficient foundation to show that the 

Draeger test was reliable. Hailey Newton, an employee of the Laboratory Division of the 

Indiana State Police, testified that she conducted a validation study involving the Draeger 

test. Tr. p. 81-82. In her study, she tested the instrument for cross-reactivity with over 

sixty different types of chemicals and each test produced the expected result. Id. at 86. 

She never obtained a false positive, and her results did not differ from the manufacturer’s 

own documented testing.6 Id. at 85-86. Newton’s study was presented to the Clandestine 

Laboratory Investigating Chemist Association. Id. at 87. Additionally, Newton testified 

that the test has been in existence since 1937 and that she was not familiar with any studies 

indicating that the test is unreliable. Id. Both Newton and Trooper Royer testified that the

test is used by the Drug Enforcement Agency and the Occupational Safety and Health 

Administration. Id. at 18, 87.

We find this case distinguishable from West. In West, this Court determined that 

the foundational requirements for the reliability of a Draeger test were not established when 

an officer only testified about his training in administering the test and general information 

about how he performed the test. West, 805 N.E.2d at 913. Here, however, Newton

testified to additional information regarding the Draeger test’s reliability, including a 

validation study she performed and that in every instance the Draeger test results were 

exactly as expected. Additionally, she testified that she was not familiar with any study 

 

6 The manufacturer reports that a Draeger test has a standard deviation of ten to fifteen percent, but 

this refers to the amount of concentration of the chemical tested. Tr. p. 89. The Draeger test in this case 

was used to determine whether the chemical was present in the reaction vessel, not how much of it was 

present. 
12

since the test was created in 1937 that indicated that the test is unreliable. Her testimony 

focused on the reliability of the Draeger test while the officer’s testimony in West did not.

Evans also contends that the State failed to lay a foundation for the specific 

instrument used. Appellant’s Br. p. 7. We note that Evans waived this claim because he 

did not object to the fact that Trooper Royer never identified the specifications of the 

instrument he used to test the green two-liter bottle. Instead, he only objected to the 

reliability of the test itself. Tr. p. 5-6; Appellant’s App. p. 71-72. A defendant may not 

argue one ground for objection at trial and then raise a new ground for objection on appeal. 

Turner, 953 N.E.2d at 1058. Waiver notwithstanding, Trooper Royer testified that each

instrument comes with specific manufacturer instructions. Officers who use the Draeger 

test device are trained in accordance with those instructions. Tr. p. 82. Trooper Royer

testified that he followed the manufacturer’s instructions in performing the test. Id. at 133.

Therefore, Trooper Royer’s failure to identify the specifications of the instrument did not 

affect the reliability of the test.

Even if the trial court erred by admitting the Draeger test, that error would have

been harmless. An error in the admission of evidence is harmless “when the conviction is 

supported by such substantial independent evidence of guilt as to satisfy the reviewing 

court that there is no substantial likelihood that the questioned evidence contributed to the 

conviction.” Lafayette v. State, 917 N.E.2d 660, 666 (Ind. 2009). There was overwhelming 

evidence that ammonia existed in the reaction vessel. Both Officer Myers and Officer 

French smelled ammonia coming from the vent pipe outside the house. Both officers also 

testified to an overwhelming smell of ammonia. There were also several independent 
13

pieces of evidence that proved Evans was manufacturing methamphetamine, including the 

testimony of both Brickey and Pam. Brickey testified that she saw Evans put pills in the 

green two-liter bottle and shake it. Tr. p. 192. Pam also testified that she saw Evans 

crushing and using the pills. Id. at 261. Additionally, Pam testified that she saw Evans 

“burping” the two-liter bottle. Id. at 246, 277. She also saw Evans strip the batteries and

use the cold packs, lye, mason jar, and Coleman camp fuel to make methamphetamine. Id. 

at 247-48. 

Even without the results of the Draeger test, we are confident that there was 

sufficient independent evidence of guilt that a jury still would have found Evans guilty of 

Class A felony dealing in methamphetamine for manufacturing methamphetamine within 

one-thousand feet of a public park. Appellant’s App. p. 82.

II. Refusal to Tender Jury Instruction

Evans also contends that the trial court erred in refusing to tender his requested jury 

instruction. We will only reverse a trial court’s refusal to give a jury instruction if doing 

so amounts to an abuse of discretion. O’Connell v. State, 970 N.E.2d 168, 172 (Ind. Ct. 

App. 2012). 

We note that the purpose of jury instructions is “‘to inform the jury of the law 

applicable to the facts without misleading the jury and to enable it to comprehend the case 

clearly and arrive at a just, fair, and correct verdict.’” Id. (quoting Munford v. State, 923 

N.E.2d 11, 14 (Ind. Ct. App. 2010)). In determining whether the trial court abused its 

discretion by failing to give an instruction, we consider “‘(1) whether the tendered 

instruction correctly states the law; (2) whether there was evidence presented at trial to 
14

support giving the instruction; and, (3) whether the substance of the instruction was 

covered by other instructions that were given.’” Kane v. State, 976 N.E.2d 1228, 1230-31 

(Ind. 2012) (quoting Mayes v. State, 744 N.E.2d 390, 394 (Ind. 2001)). We will only 

reverse based upon an instructional error if the defendant affirmatively demonstrates that 

the error prejudiced his substantial rights. Washington v. State, 840 N.E.2d 873, 888 (Ind. 

Ct. App. 2006), trans. denied. 

The trial court tendered Instruction No. 14.156 of the Indiana Pattern Jury 

Instructions on possession:

The word “possess” means to own or to exert control over. The word 

“possession” can take on several different, but related, meanings.

There are two kinds of “possession”: actual possession and 

constructive possession. A person who knowingly has direct physical control 

of a thing at a given time is then in actual possession of it. A person who, 

although not in actual possession, knowingly has both the power and the 

intention at a given time to exercise control over a thing, either directly or 

through another person or persons, is then in constructive possession of it.

Possession may be sole or joint. If one person alone has actual or 

constructive possession of a thing, then possession is sole. If two or more 

persons share actual or constructive possession of a thing, then possession is 

joint.

Possession may be actual or constructive, and either alone or jointly 

with others.

Appellant’s App. p. 32-33; see also Indiana Pattern Jury Instruction No. 14.156—Criminal 

(3d ed. 12/2003). Evans submitted the following proposed jury instruction on the issue of 

constructive possession:

Possession of something may take two forms. One can possess an 

item directly, meaning that he/she has actual physical control over the item. 

Or, one can possession [sic] something constructively, meaning that he/she 

has the capability and intent to possess the item, even though actual physical 

control is absent. Evidence has been presented that other individuals may 

have visited at, or resided in, Elizabeth Smith’s home. As such, possession 

of those premises was not exclusive to her. When possession of the premises 
15

on which drugs or their precursors is not exclusive, the inference of intent to 

maintain dominion and control over the items must be supported by 

additional circumstances pointing to the accused’s knowledge of the nature 

of the drugs and/or precursors and their presence in her home. These 

additional circumstances can include incriminating statements the accused 

made, attempted flight or furtive gestures, proximity of the substances to the 

accused, location of the substances within the accused’s plain view, and the 

combining of the substances with other items that the accused owned.

Appellant’s App. p. 59. The court denied Evans’s requested jury instruction because the 

trial court was already giving a constructive-possession instruction and because there is a 

danger when an instruction calls attention to any one particular circumstance that the jury 

might give that circumstance extra weight when it should consider all circumstances. Tr. 

p. 317. 

Evans concedes that the trial court’s instruction was an accurate statement of the 

law and supported by the evidence; however, he contends that the instruction does not 

“adequately cover the issue of constructive possession because it contains no factors that 

the jury may consider in determining that issue.” Appellant’s Br. p. 10. 

We disagree that the trial court’s instruction did not adequately cover the issue of 

constructive possession. Evans’s theory of the case was that the suspected one-pot reaction 

vessel was already in the basement of the Smith Residence before he arrived that evening. 

Tr. p. 341-42. The court’s instruction adequately explains that a person must knowingly 

have both the power and the intention at a given time to exercise control over the thing he

possesses. Thompson v. State, 966 N.E.2d 112, 122 (Ind. Ct. App. 2012) (“In order to 

prove constructive possession, the State must show that the defendant has both (1) the 

intent to maintain dominion and control and (2) the capability to maintain dominion and 

control over the contraband.” (citation omitted)), trans. denied.
16

Instead, the trial court properly denied Evans’s requested instruction because it 

unnecessarily emphasized the fact that Elizabeth was the primary leaseholder of the Smith 

Residence. We have long disapproved of “[i]nstructions that unnecessarily emphasize one 

particular evidentiary fact, witness, or phase of the case . . . .” Ludy v. State, 784 N.E.2d 

459, 461 (Ind. 2003). Here, by stating in the instruction where the events occurred, the 

jury may have been confused about its relevance to the case or given that factor extra 

weight in its deliberations regarding possession of the materials to make 

methamphetamine.

7

Finally, we may reverse a refusal to give a jury instruction only if the defendant 

shows that his substantial rights were prejudiced. Washington, 840 N.E.2d at 888. Evans 

makes no argument in his brief that his substantial rights were affected by the trial court’s 

refusal to tender his proposed jury instruction. See Appellant’s Br. p. 8-10. Evans could 

not make this argument because both Brickey and Pam testified that Evans actually 

possessed the reaction vessel. Tr. p. 195, 277.

We conclude that the trial court did not abuse its discretion in declining to give 

Evans’s proposed jury instruction because the trial court’s instruction adequately covered

the issue of constructive possession and because Evans’s proposed jury instruction

 

7 Evans argues that his instruction should have been approved because “the factors for consideration 

contained in Evans’s tendered instruction are identical to those approved in Speer v. State, 995 N.E.2d 1, 

10 (Ind. Ct. App. 2013), trans. denied. We agree with Evans that the description of what is required to 

prove constructive possession in Speer is correct and mirrors the language Evans tendered in his proposed 

jury instruction. However, Speer does not address the concern of the trial court—that Evans’s proposed 

jury instruction unnecessarily emphasized the fact that Elizabeth was the primary leaseholder of the Smith 

Residence and may cause the jury to give extra weight to that circumstance. 
17

unnecessarily emphasized the fact that Elizabeth was the primary leaseholder of the Smith 

Residence.

Affirmed.

NAJAM, J., and BROWN, J., concur.