Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015 Page 1 of 29

ATTORNEY FOR APPELLANT

Steven E. Ripstra

Ripstra Law Office

Jasper, Indiana

ATTORNEY FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Brian Reitz

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Brian L. Harrison,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 21, 2015

Court of Appeals Case No.

74A01-1407-CR-328

Appeal from the Spencer Circuit 

Court

The Honorable Wayne A. Roell, 

Special Judge

Cause No. 74C01-1301-FB-020

Mathias, Judge.

[1] Brian Lee Harrison (“Harrison”) was convicted in Spencer Circuit Court of Class 

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

anhydrous ammonia, Class D felony possession of chemical reagents or 

precursors with the intent to manufacture methamphetamine, and Class A 

misdemeanor possession of paraphernalia. Harrison also admitted to being an 

habitual offender and was sentenced to an aggregate term of thirteen years of 
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incarceration. Harrison appeals and presents seven issues, which we reorder and 

restate as: 

I. Whether the State presented sufficient evidence to support Harrison’s 

convictions; 

II. Whether Harrison’s convictions for possession of ammonia and 

possession of precursors are lesser-included offenses of the greater offense 

of manufacturing methamphetamine; 

III. Whether the trial court abused its discretion in admitting into evidence 

information from a mobile phone the police seized from Harrison’s car; 

IV. Whether the trial court abused its discretion in refusing to give Harrison’s 

proffered jury instruction on an alibi defense and in instructing the jury 

with regard to the charged offense of possession of precursors; 

V. Whether the trial court abused its discretion by admitting evidence 

regarding certain telephone calls, one of which was made by Harrison 

while he was in jail; 

VI. Whether the trial court abused its discretion in permitting the prosecuting 

attorney to read language from a published opinion of this court during 

the State’s closing argument; and 

VII. Whether the trial court abused its discretion when it admitted evidence of 

Harrison’s nickname, “Bam Bam.” 

[2] We reverse Harrison’s convictions for possession of anhydrous ammonia and 

possession of precursors as they constitute lesser-included offenses of the greater 

offense of manufacturing methamphetamine but affirm Harrison’s convictions 

for manufacturing methamphetamine and possession of paraphernalia. 

Facts and Procedural History

[3] On January 28, 2013, Spencer County Sheriff’s Deputy Jim Taggart (“Deputy 

Taggart”) was driving his patrol car on a county road when he saw two vehicles, 

a black Pontiac and a white pickup truck, stopped in the road. The two vehicles 
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drew Deputy Taggart’s attention, as he thought that the truck may have collided 

with the rear-end of the Pontiac. Instead, the pickup drove away and turned right 

at a nearby stop sign. Deputy Taggart drove past the Pontiac and observed it in 

his rear-view mirror. As he did so, the Pontiac quickly accelerated in reverse up a 

hill. The driver of the Pontiac lost control of the car, drove it into a ditch, and hit 

a log, which bounced the car into the air. The car then came to a stop in the 

ditch. Deputy Taggart turned his patrol car around to approach the crashed 

Pontiac. 

[4] A passenger in the car, later identified as Jason Gee (“Gee”), exited the car, ran 

across the road, and disappeared into a wooded area. The driver of the car, later 

identified as Harrison, managed to climb out of the driver’s side door, which was 

wedged against the ditch, and also fled into the wooded area. 

[5] Deputy Taggart exited his patrol car, walked toward the Pontiac, and saw smoke

coming from the front passenger floorboard. He then saw a small fire located 

next to a tank in the car and a clear container with a white powder inside. 

Deputy Taggart put out the fire. He then noticed that a mobile phone, located in 

the console, had been ringing. Deputy Taggart opened the phone and read to 

dispatch the numbers that had been calling the phone in the car. Deputy Taggart 

also looked through the text messages on the phone. 

[6] Deputy Taggart then began to search the vehicle, where he found a bag 

containing a scale and a leather wallet. The wallet contained an Indiana 

identification card, an Indiana Department of Correction card, a debit card, a 
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casino card, and a resort card, all of which identified Harrison. A spoon and 

cigarette rolling papers were also found in the car. 

[7] Indiana State Police Trooper Ted Clamme (“Trooper Clamme”) of the 

clandestine laboratory clean-up team was dispatched to the scene. Trooper 

Clamme described what he saw in the vehicle as a “very early stage” 

methamphetamine lab, using the “Nazi method.” Tr. P. 209. Trooper Clamme 

found in the car several items used in the manufacture of methamphetamine, 

including: 24.31 grams of pseudoephedrine, crushed pseudoephedrine pill 

powder, a tank of ammonia, a bottle of “Heet” (an isopropyl alcohol-based antifreeze agent), syringes, a glass jar, plastic tubing, and a measuring spoon. 

Trooper Clamme explained that every item needed for the manufacture of

methamphetamine was present, save lithium. However, he explained that the 

lithium could have been destroyed in the fire. 

[8] In the meantime, Kati Richard (“Richard”), the 911 director for the Spencer 

County Sheriff’s Department, was at home when she received a telephone call

from dispatch to warn her that her house was near the area where the suspects in 

the Pontiac had fled. Shortly thereafter, Richard’s dog began to bark; she looked 

outside and saw Harrison sitting in the woods near her house.1 Richard then 

called dispatch to tell them she had found one of the potential suspects. 

However, Harrison was not apprehended at that time. 

 

1

 Richard’s brother was a childhood friend of Harrison’s. 
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[9] Gee was taken into custody later that day. Harrison was arrested at a later date 

and eventually charged with Class B felony manufacture of methamphetamine, 

Class D felony illegal possession of anhydrous ammonia, Class D felony 

possession of precursors with intent to manufacture methamphetamine, and 

Class A misdemeanor possession of paraphernalia. The State also alleged that 

Harrison was an habitual offender. 

[10] At trial, the State introduced into evidence, over Harrison’s objection, a recorded 

telephone conversation he had with Gee while in jail. In the call, Harrison stated, 

“I’m kind of hurt, man but — got f**king ammonia. I think I have ammonia in 

my lungs.” Appellant’s App. p. 243. Harrison was also occasionally referred to at 

trial by his nickname, “Bam Bam.” Tr. pp. 7, 9, 152, 166-68, 170-71. Harrison 

objected to some of these references but not all. See Tr. pp. 152, 170-71. At the 

close of the evidence, the trial court read the pattern jury instruction regarding 

the charged crime of possession of precursors, to which Harrison objected. The 

trial court also refused to read to the jury Harrison’s tendered alibi instruction. 

During the State’s closing argument, the trial court overruled Harrison’s 

objection to the prosecuting attorney reading a portion of this court’s opinion in 

Dawson v. State, 786 N.E.2d 742 (Ind. Ct. App. 2003), which dealt with the 

definition of manufacturing methamphetamine. The jury found Harrison guilty 

as charged, and the trial court subsequently sentenced Harrison to an aggregate 
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term of thirteen years of incarceration.2 Harrison now appeals. 

I. Sufficiency of the Evidence

[11] Harrison first claims that the evidence is insufficient to support his conviction for 

manufacturing methamphetamine.3 When reviewing a claim that the evidence is 

insufficient to support a conviction, we neither reweigh the evidence nor judge 

the credibility of the witnesses; instead, we respect the exclusive province of the 

trier of fact to weigh any conflicting evidence. McHenry v. State, 820 N.E.2d 124, 

126 (Ind. 2005). We consider only the probative evidence supporting the verdict 

and any reasonable inferences which may be drawn from this evidence. Id. We 

will affirm if the probative evidence and reasonable inferences drawn from the 

evidence could have allowed a reasonable trier of fact to find the defendant guilty 

beyond a reasonable doubt. Id. 

A. Manufacturing Methamphetamine

[12] The statute defining the crime of manufacturing methamphetamine provides in 

relevant part that “(a) A person who . . . knowingly or intentionally . . . 

 

2

 Specifically, the trial court sentenced Harrison to the advisory term of ten years on his conviction for 

Class B felony manufacturing methamphetamine, the advisory term of one and one-half years on the 

Class D felony convictions for possession of precursors and possession of anhydrous ammonia, and one 

year on the conviction for Class A misdemeanor possession of paraphernalia. The trial court ordered all 

of the sentences to run concurrently. The trial court also imposed a three-year sentence for the habitual

offender adjudication, which it ordered be served consecutively to the other sentences. 

3

 Harrison claims generally that the evidence is insufficient to support his convictions. However, he 

focuses his argument solely on the sufficiency of the evidence supporting his conviction for

manufacturing methamphetamine. 
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manufactures . . . methamphetamine, pure or adulterated . . . commits dealing in 

methamphetamine, a Class B felony[.]” Ind. Code § 35-48-4-1.1(a).4 

[13] Harrison claims that he was never found in actual possession of any of the items 

found in the car and that the State therefore was required to prove constructive 

possession. Harrison, however, was not charged with or convicted of possession of 

methamphetamine under section 35-48-4-1.1(a)(2); he was charged with and 

convicted of manufacturing methamphetamine under section 35-48-4-1.1(a)(1). 

See Appellant’s App. p. 13 (“Harrison did knowingly or intentionally 

manufacture methamphetamine[.]”); Appellant’s App. p. 216 (final instruction 

setting forth elements of manufacturing methamphetamine).

[14] Indiana Code Section 35-48-1-18 defines “manufacture” 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.

No statutory requirement states that the manufacturing process must be 

completed or that a final product must be present before it applies. Vanzyll v. 

State, 978 N.E.2d 511, 518 (Ind. Ct. App. 2012); Bush v. State, 772 N.E.2d 1020, 

1022-23 (Ind. Ct. App. 2002). 

 

4

 We refer to the version of the statute in effect when Harrison committed his crimes. 
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[15] Here, Harrison’s mobile phone, wallet, and identification were located inside the 

car. The police found in the car a total of 24.31 grams of pseudoephedrine, 

crushed pseudoephedrine pill powder, a tank of ammonia, a bottle of “Heet,” 

syringes, a glass jar, plastic tubing, and a measuring spoon, constituting every 

methamphetamine precursor except lithium. Trooper Clamme identified the set 

up in the car as an early-stage methamphetamine lab. From this circumstantial 

evidence, the jury could reasonably conclude that Harrison manufactured 

methamphetamine, even though no final product was present. See Bush, 772 

N.E.2d at 1022-23. 

B. Constructive Possession of Precursors

[16] To the extent that Harrison’s argument regarding constructive possession is 

directed at his conviction for possession of precursors, sufficient evidence 

sufficient supports a finding that Harrison constructively possessed the 

precursors. Constructive possession is established by showing that the defendant 

has both the intent and capability to maintain dominion and control over the 

contraband. Floyd v. State, 791 N.E.2d 206, 210-11 (Ind. Ct. App. 2003), trans. 

denied. In cases where the accused has exclusive possession of the premises on 

which the contraband is found, an inference is permitted that he or she knew of 

the presence of contraband and was capable of controlling it. Id. However, when 

possession of the premises is non-exclusive, this inference is permitted only if

some additional circumstances indicate the defendant’s knowledge of the 

presence of the contraband and the ability to control it. Id. Among the 

recognized additional circumstances are: (1) incriminating statements made by 
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the defendant; (2) attempted flight or furtive gestures; (3) a drug manufacturing 

setting; (4) proximity of the defendant to the contraband; (5) the contraband 

being in plain view; and (6) the location of the contraband being in close 

proximity to items owned by the defendant. Id. 

[17] Here, the precursors were found in Harrison’s vehicle, but Gee was also in the 

car with him. Thus, Harrison’s possession of the premises was non-exclusive,

and additional circumstances must indicate Harrison’s knowledge of the 

presence of the contraband and the ability to control it. See id. Here, these 

circumstances include: (1) Harrison made statements that he had ammonia in his 

lungs; (2) Harrison fled the vehicle as Deputy Taggart approached it; (3) the 

precursors were found in an early-stage methamphetamine lab; (4) the 

methamphetamine lab was in plain view in the front floorboard of the vehicle; 

and (5) Harrison’s mobile phone and wallet were found in close proximity to the 

methamphetamine lab. From this, the jury could reasonable conclude that 

Harrison constructively possessed the precursors found in the vehicle. 

II. Lesser Included Offenses

[18] Harrison also claims that, even if the evidence was sufficient to support his 

conviction for manufacturing methamphetamine, his convictions for possession 

of anhydrous ammonia and possession of precursors with the intent to 

manufacture are lesser-included offenses that must be vacated. 

[19] 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 
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counts, “judgment and sentence may not be entered against the defendant for the 

included offense.” An “included offense” is defined as 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.

Ind. Code § 35-41-1-16. 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 offense. Bush, 772 N.E.2d at 1023-24. If the 

evidence indicates that one crime is independent of another crime, it is not an 

included offense. Iddings v. State, 772 N.E.2d 1006, 1017 (Ind. Ct. App. 2002). 

[20] The possession of precursors can be a lesser-included offense of the greater crime 

of manufacturing methamphetamine. As we explained in Bush: 

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 manufacturing methamphetamine.
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772 N.E.2d at 1024. 

[21] In Bush, we held that the defendant’s conviction for possession of precursors had 

to be vacated because no direct evidence recovered indicated that Bush had yet 

succeeded in completing a “batch” of the drug. Id. Thus, we held that the same 

evidence establishing Bush knowingly or intentionally manufactured 

methamphetamine also established that he possessed methamphetamine 

precursors with the intent to manufacture the drug. Id. “It [was] impossible to 

fairly state that the manufacturing and possession of precursors offenses in [Bush]

were clearly independent of each other.” Id. 

[22] In contrast, in Iddings, a case handed down the same day as Bush, we came to the

contrary conclusion. In Iddings, the police recovered completed 

methamphetamine at Iddings’ home in addition to precursors in large quantities 

and in proximity to other items associated with manufacturing 

methamphetamine manufacturing. 772 N.E.2d at 1017. Thus, evidence existed 

that Iddings had already manufactured methamphetamine and possessed the 

chemical precursors of methamphetamine with the intent to manufacture more

of the drug, such that his conviction for possession of precursors was not 

included in his conviction for manufacturing methamphetamine. Id. 

[23] In the present case, we agree with Harrison that the facts of the present case are 

closer to those in Bush than in Iddings. Here, unlike in Iddings, no evidence of a 

completed manufacture of methamphetamine existed. Instead, the police found 

an early-stage methamphetamine manufacturing process that contained no actual 
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methamphetamine. Thus, as in Bush, it is impossible to fairly state that the 

manufacturing and possession of precursors offenses are clearly independent of 

each other. We therefore reverse Harrison’s convictions for possession of 

anhydrous ammonia and possession of precursors and remand with instructions 

that the trial court vacate the convictions and sentences on these counts. 

II. Admission of Evidence Discovered on Mobile Phone

[24] Harrison also claims that the trial court abused its discretion in admitting into 

evidence information gleaned from the mobile phone found in the console of 

Harrison’s car. When a defendant challenges the constitutionality of a search 

following a completed trial, the issue is one of whether the trial court properly 

admitted the evidence. Casady v. State, 934 N.E.2d 1181, 1188 (Ind. Ct. App. 

2010). Questions regarding the admission of evidence are entrusted to the sound 

discretion of the trial court. Fuqua v. State, 984 N.E.2d 709, 713-14 (Ind. Ct. App. 

2013), trans. denied. Accordingly, we review the court’s decision on appeal only 

for an abuse of that discretion. Id. The trial court abuses its discretion only if its 

decision regarding the admission of evidence is clearly against the logic and 

effect of the facts and circumstances before it, or if the court has misinterpreted 

the law. Id. Regardless of whether the challenge is made through a pretrial 

motion to suppress or by an objection at trial, our review of rulings on the 

admissibility of evidence is essentially the same: we do not reweigh the evidence, 

and we consider conflicting evidence in a light most favorable to the trial court’s 

ruling, but we also consider any undisputed evidence that is favorable to the 

defendant. Id. 
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[25] Both the Fourth Amendment to the United States Constitution and Article I, 

Section 11 of the Indiana Constitution provide that “the right of the people to be 

secure in their persons, houses, papers and effects, against unreasonable searches 

and seizures[.]” U.S. Const. Amend. IV; Ind. Const., art. 1 § 11. These 

protections against unreasonable governmental searches and seizures are a 

principal mode of discouraging lawless police conduct. Friend v. State, 858 

N.E.2d 646, 650 (Ind. Ct. App. 2006) (citing Jones v. State, 655 N.E.2d 49, 54 

(Ind. 1995); Terry v. Ohio, 392 U.S. 1, 12 (1968)). When the police conduct a 

warrantless search, the State bears the burden of establishing that an exception to 

the warrant requirement is applicable. Id. 

[26] It has long been held that abandoned property is not subject to Fourth 

Amendment protection. Campbell v. State, 841 N.E.2d 624, 627 (Ind. Ct. App. 

2006); Wilson v. State, 825 N.E.2d 49, 51 (Ind. Ct. App. 2005); Miller v. State, 498 

N.E.2d 53, 55 (Ind. Ct. App. 1986), trans. denied. The same is true under Article 

1, Section 11 of the Indiana Constitution. See Campbell, 841 N.E.2d at 627. 

However, this rule is inapplicable if the abandonment occurs after an improper 

detention. 

[27] Here, it is clear that both Harrison and Gee abandoned the car and fled into the 

woods upon seeing Deputy Taggart. Nor did Harrison abandon his property after 

an improper detention; they fled as Deputy Taggart approached to investigate the 

wreck of the Pontiac in the ditch. Accordingly, Harrison cannot now claim that 

he had a protectable interest in the abandoned mobile phone. See Campbell, 841 

N.E.2d at 630 (holding that defendant abandoned handgun underneath car 
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before he was seized and therefore the handgun was not subject to protections of 

Fourth Amendment or Article 1, Section 11); People v. Daggs, 34 Cal. Rptr. 3d 

649, 651 (Cal. Ct. App. 2005) (holding that defendant abandoned cell phone 

which he left behind in a store after fleeing when being confronted for attempting 

to steal merchandise and therefore police did not unconstitutionally search phone 

to determine the owner of the phone); United States v. Washington, 536 Fed. Appx. 

810, 812 (10th Cir. 2013) (holding that defendant had no reasonable expectation 

of privacy in cellular phone left in motel room), cert. denied, 134 S. Ct. 1328 

(2014). 

III. Jury Instructions

[28] Harrison next argues that the trial court erred in instructing the jury. The 

instruction of the jury lies within the trial court’s sound discretion, and we review 

the trial court decisions with regard to jury instructions only for an abuse of that 

discretion. Shelby v. State, 986 N.E.2d 345, 360 (Ind. Ct. App. 2013), trans. denied.

To constitute an abuse of discretion, an instruction that is given to the jury must 

be erroneous, and the instructions viewed as a whole must misstate the law or 

otherwise mislead the jury. Winkleman v. State, 22 N.E.3d 844, 849 (Ind. Ct. 

App. 2014), trans. denied. In determining whether the trial court abused its 

discretion when it refused to give a tendered instruction we consider: (1) whether 

the instruction correctly states the law; (2) whether there is evidence in the record 

supporting the instruction; and (3) whether the substance of the instruction is 

covered by other instructions. Shelby, 986 N.E.2d at 360. When a defendant seeks 

reversal based on instructional error, he must demonstrate a reasonable 
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probability that substantial rights of the complaining party have been adversely 

affected. Id. 

A. Precursors Instruction

[29] Harrison first challenges the propriety of the instruction given by the trial court 

regarding possession of precursors. This instruction stated: 

The crime of possessing chemical reagents or precursors with the 

intent to manufacture a controlled substance is defined by statute 

as follows: 

A person who possesses two or more chemical reagents or 

precursors with the intent to manufacture a controlled substance 

commits a Class D felony. 

Before you may convict the Defendant, the State must have 

proved each of the following beyond a reasonable doubt: 

1. The Defendant; 

2. possessed 2 or more of the following: pseudoephedrine, 

which the Court instructs you is a chemical reagent, the salts, 

isomers, and salts of isomers of a substance identified in 

subdivisions (1) through (3), which the Court instructs you is a 

chemical reagent, anhydrous ammonia or ammonia solution (as 

defined in I.C. 22-11-20-1), which the Court instructs you is a 

chemical reagent, organic solvents, which the Court instructs you is 

a chemical reagent, or hydrochloric acid, which the Court instructs 

you is a chemical reagent. 

3. with the intent to manufacture methamphetamine. 

If the State failed to prove each of these elements beyond a 

reasonable doubt, you should find the Defendant not guilty of 

possession chemical reagents or precursors with intent to 

manufacture a controlled substance, as Class D felony. 
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Appellant’s App. p. 220 (emphasis added). Harrison claims that this instruction 

improperly infringed upon the right of the jury to determine both the law and the 

facts with regard to the definition of a precursor. We disagree. 

[30] We first note that the instruction, which is taken from the Indiana pattern jury 

instruction,5 is a correct statement of the law. Indiana Code section 35-48-4-14.5

defines what substances are precursors. Included among these are: 

pseudoephedrine, or the salt, isomer, or salt of isomer of pseudoephedrine; 

anhydrous ammonia or ammonia solution; and organic solvents. See I.C. § 35-

48-4-14.5(a)(2), (4), (5), (6). Thus, the definition of a chemical precursor is 

established by statute, not the jury. See Russell v. State, 182 Ind. App. 386, 401, 

395 N.E.2d 791, 800-01 (1979) (noting that statute defined marijuana as a 

controlled substance and that trial court therefore had a duty to instruct the jury

that marijuana was a controlled substance). The question for the jury was not 

whether pseudoephedrine, organic solvents, or ammonia are controlled 

substances; this is established as a matter of law by statute. The question for the 

jury was whether Harrison possessed two or more of those substances with the 

intent to manufacture methamphetamine. 

 

5 The State appears to argue that the instruction must be a correct statement of the law because it was 

taken from the Indiana Pattern Jury Instructions. We note, however, that pattern jury instructions have 

not been formally approved by the Indiana Supreme Court, and certain pattern instructions have even 

been held to not be a correct statement of the law. See Clay City Consol. School Corp. v. Timberman, 918 

N.E.2d 292, 295 (Ind. 2009); Boney v. State, 880 N.E.2d 279, 294 (Ind. Ct. App. 2008). Still, pattern jury 

instructions are given preferential treatment during litigation, and the preferred practice is to use the 

pattern instructions. See Timberman, 918 N.E.2d at 295; Boney, 880 N.E.2d at 294. 
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[31] With regard to Harrison’s argument that this impedes upon the jury’s right to 

determine the law and the facts in a criminal case, we note that the jury was 

properly instructed with regard to this role. See Appellant’s App. p. 215. Our 

supreme court has held that the jury’s right to determine both the law and the 

facts does not mean that the jury may ignore the law. See Holden v. State, 788 

N.E.2d 1253, 1255 (Ind. 2003) (noting that it is improper for a court to instruct a 

jury that they have a right to disregard the law and that, notwithstanding Article 

1, Section 19 of the Indiana Constitution, a jury has no more right to ignore the 

law than it has to ignore the facts in a case), aff’d on reh’g, 799 N.E.2d 538. 

[32] Accordingly, we are unable to conclude that the trial court abused its discretion 

in instructing the jury with regard to chemical precursors. 

B. Tendered Alibi Instruction

[33] Harrison also claims that the trial court abused its discretion in refusing to give to 

the jury his tendered alibi instruction, which stated: “you have heard evidence 

that at the time of the crime charged the accused was at a different place so 

remote or distan[t] that he could not have committed the crime. [The] State must 

prove beyond a reasonable doubt the accused’s presence at the time and place of 

the crime.” Tr. p. 524.6 Regardless of whether this is a correct statement of the 

law, we conclude that no evidence in the record supports the instruction and that 

the substance of the instruction was covered by other instructions. 

 

6

 Harrison’s proffered instruction was not included in the Appellant’s Appendix, but the trial court read 

the proposed instruction into the transcript. 
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[34] With regard to the evidence supporting the instruction, Harrison simply notes 

that the charging information did not set forth the specific time of day that the 

crime took place and that the State’s witnesses who identified him at or near the 

scene of the crime did not establish the time of day. This, however, ignores the 

fact that the parties stipulated that the incident occurred at 12:30 p.m. Tr. pp. 

494-95. As Harrison admits, the State presented evidence indicating that he was 

at the scene of the crime. 

[35] Harrison claims evidence existed supporting the giving of an alibi instruction, 

referring to his notice of alibi and the testimony of his ex-girlfriend Tasha 

Hatfield (“Hatfield”). According to the notice of alibi, Harrison and Hatfield 

were in Owensboro, Kentucky at the time of the crime. Specifically, the notice 

claimed that Harrison drove to Owensboro at approximately noon to take 

Hatfield home from the hospital, then drove her to her place of employment, 

stopped to eat in Owensboro, drove to Rockport where Harrison filled 

prescriptions, then returned to Hatfield’s home in Grandview, Indiana, where 

they picked up Hatfield’s daughter at the school bus stop at 3:20 p.m.

[36] At trial, however, Hatfield did not corroborate the claims made in the notice of 

alibi. Hatfield testified that she fainted at work on the day of the crime and was 

taken to the hospital. She also stated that Harrison picked her up from the 

hospital and that they filled a prescription at approximately 10:50 a.m. Harrison 

then drove her home, which was approximately ten minutes away. She claimed 

that she and Harrison fell asleep at approximately 11:30 a.m., and that when she 

awoke at approximately 2:30 p.m., Harrison was not there. Even if this evidence 
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were credited, it does not mean that Harrison could not have been at the scene of 

the crime at 12:30 p.m. while Hatfield was asleep. Under these facts and 

circumstances, we cannot say evidence supported the giving of Harrison’s 

tendered alibi instruction. 

[37] Furthermore, other given instructions adequately explained to the jury that the 

State had to prove beyond a reasonable doubt that it was Harrison who was at 

the scene of the wrecked Pontiac, manufacturing methamphetamine. The jury 

was instructed that Harrison was presumed innocent, that the State had to prove 

each and every element of the charged crimes beyond a reasonable doubt, and 

that Harrison was alleged to have knowingly or intentionally committed the 

crimes on or about January 28, 2013. Thus, we cannot say that the trial court 

abused its discretion in concluding that the instructions given to the jury 

adequately explained the State’s burden to prove that Harrison was present at the 

scene of the crimes at approximately 12:30 p.m. on January 28, 2013, which 

necessarily means that the State had to prove that Harrison was not in 

Owensboro or otherwise with Hatfield. 

[38] In short, the trial court did not abuse its discretion in instructing the jury. 

IV. Admission of Recorded Jail Telephone Calls

[39] Harrison next argues that the trial court erred in admitting evidence regarding

jailhouse telephone calls made between him and Gee and between Hatfield and 

Steven Pointer (“Pointer”), an inmate at the jail. Again, questions regarding the 

admission of evidence are entrusted to the sound discretion of the trial court, and 
Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015 Page 20 of 29

we review the trial court’s decision only for an abuse of that discretion. Fuqua, 

984 N.E.2d at 713-14. The trial court abuses its discretion only if its decision 

regarding the admission of evidence is clearly against the logic and effect of the 

facts and circumstances before it, or if the court has misinterpreted the law. Id. 

A. Call Between Hatfield and Pointer

[40] Harrison first complains of the admission of evidence regarding a telephone call 

made between his ex-girlfriend, Hatfield, and Pointer, another inmate at the jail. 

A recording of this call was not admitted; instead, the State asked Hatfield if she 

remembered certain exchanges with Pointer, specifically: 

Mr. Pointer said to you “What’s up?” On the call you say “Oh 

nothing. Been running from the po-po all day.” He said “Running 

from the po-po?” You said “Yeah, they got Bams [i.e., Harrison] 

posted up. They ain’t got him yet, but they’re close.” He said 

“They got him posted up?” And you said “Yeah, but I can’t talk 

about it no more. They’re in - they’re on them deep.” Do you 

remember that conversation with Mr. Pointer?

Tr. p. 396. Hatfield claimed that she did not recall this conversation clearly and 

denied that she was running from the police. The State also later asked Hatfield if 

she remembered telling Pointer, “Hey, Gee’s in there, but I got the other one. I 

got mine with me.” Tr. p. 398. 

[41] On appeal, Harrison claims that the admission of these statements violated the 

rule against hearsay and the Confrontation Clause of the Sixth Amendment to 

the United States Constitution. 
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[42] Hearsay is defined as “(1) a statement that is not made by the declarant while 

testifying at trial or hearing; and (2) is offered in evidence to prove the truth of 

the matter asserted. Ind. Evidence Rule 801(c); see also Amos v. State, 896 N.E.2d 

1163, 1168 (Ind. Ct. App. 2008). Hearsay is generally inadmissible. Amos, 896 

N.E.2d at 1168 (citing Ind. Evidence Rule 802). 

[43] The State claims generally that jailhouse phone calls are generally admissible. See

King v. State, 985 N.E.2d 755, 759 (Ind. Ct. App. 2013) (“Generally, recordings 

of telephone calls made from jail are admissible when the defendant discusses the 

crime for which he is incarcerated.”), trans. denied. However, the telephone 

conversation between Hatfield and Pointer is not a recording of a conversation 

where the defendant discussed the crime for which he was incarcerated. 

[44] Moreover, it is clear that Hatfield’s out-of-court statements were introduced in 

order to prove the truth of the matter asserted, i.e., that she and/or Harrison had 

been running from the police and that Gee had been caught by the police. The 

State offers no argument as to why these statements are subject to any hearsay 

exception, nor are we aware of any. Accordingly, we must conclude that these 

statements were hearsay and that the trial court abused its discretion in admitting 

them into evidence. 

[45] However, this does not mean that Harrison’s convictions must be reversed. We 

will not reverse a defendant’s conviction if the error was harmless. Teague v. State, 

978 N.E.2d 1183, 1188-89 (Ind. Ct. App. 2012) (citing Turner v. State, 953 N.E.2d 

1039, 1059 (Ind. 2011)). An error is harmless if substantial independent evidence 
Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015 Page 22 of 29

of guilt satisfies the reviewing court that no substantial likelihood exists that the 

challenged evidence contributed to the conviction. Id. Generally, errors in the 

admission of evidence are to be disregarded unless they affect the substantial 

rights of a party. Id. If the erroneously admitted evidence was cumulative of 

other evidence, the admission is harmless error for which we will not reverse a 

conviction. Id. (citing Lehman v. State, 926 N.E.2d 35, 37 (Ind. Ct. App. 2010)). 

[46] Here, the admission of the evidence regarding Hatfield’s telephone conversation 

with Pointer was cumulative of other admitted evidence and therefore harmless. 

Deputy Taggart testified that a man matching Harrison’s description fled from 

the crashed Pontiac, and Harrison’s wallet, identification cards, and telephone 

were found inside the car. Richard, a woman who had known Harrison for 

years, saw Harrison hiding in the nearby woods shortly after Harrison fled the 

scene of the crash. Under these facts and circumstances, we conclude that the 

evidence regarding Hatfield’s conversation with Pointer was harmless error.7 

B. Call Between Harrison and Gee

[47] Harrison also claims that the trial court abused its discretion in admitting into 

evidence the recorded telephone conversation between Harrison and Gee while 

 

7

 We also reject Harrison’s claim that the admission of this evidence violated his rights under the 

Confrontation Clause. Harrison was able to cross-examine Hatfield regarding her statements; thus, no 

confrontation issue exists. Pointer’s side of the conversation was not only trivial and harmless, but also 

non-testimonial. See King, 985 N.E.2d at 758 (noting that a testimonial statement is one where the 

primary purpose of the conversation was to prove past events potentially relevant to later criminal 

proceedings). 
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Harrison was in jail. Harrison presents numerous arguments as to why this 

recording should not have been admitted. 

[48] Harrison first briefly claims no foundation exists for the admission of the 

recording. “To lay a foundation for the admission of evidence, the proponent of 

the evidence must show that it has been authenticated.” Pavlovich v. State, 6 

N.E.3d 969, 976 (Ind. Ct. App. 2014), trans. denied. Authentication of an exhibit 

can be established by either direct or circumstantial evidence. Id. Absolute proof 

of authenticity is not required, and the proponent of the evidence need establish 

only that a reasonable probability that the document is what it is claimed to be. 

Id. Once this reasonable probability is shown, any inconclusiveness regarding the 

exhibit’s connection with the events at issue goes to the exhibit’s weight, not its 

admissibility. Id.

[49] Here, Richards identified the recording as one taken at the jail on the relevant 

date, and Gee’s girlfriend, Marriah Barrett (“Barrett”) testified that the recording 

was of a call between Harrison and Gee. This is sufficient to lay a foundation for 

the admission of the recording.8

[50] Harrison also contends that the statements on the tapes constitute inadmissible 

hearsay. Harrison’s statements on the tape, by definition of Evidence Rule 

801(d)(2), are not hearsay, even if offered to prove the truth of the matter 

 

8

 Harrison briefly mentions the Federal Wiretap Act and the Indiana Wiretap Act but makes no 

cognizable argument that the jail telephone calls violated either act. 
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asserted. See Banks v. State, 761 N.E.2d 403, 406 (Ind. 2002) (“A party’s own 

statement offered against that party is not hearsay.”) (citing Evid. R. 801(d)(2)). 

Gee’s statements in the recording are relatively innocuous. The only statement 

that might be harmful to Harrison was Gee’s reply of “Me, too,” when Harrison 

stated that he had “ammonia in [his] lungs.” Tr. p. 243. To the extent that this 

was offered to prove the truth of the matter asserted—that Gee had ammonia in 

his lungs—we cannot say that it affected Harrison’s substantial rights. This is 

especially true given the substantial evidence identifying Harrison as the one who 

was in the car where the methamphetamine manufacturing was taking place: the 

car in which the methamphetamine lab was found belonged to Harrison, his 

wallet, identification, and telephone were inside the car, Deputy Taggart saw a 

person matching Harrison’s description flee the car, and Richard saw Harrison 

hiding in the nearby woods shortly after Harrison fled. 

[51] Harrison also claims that the admission of the recording violated his right to 

confront the witnesses against him. This can only refer to Gee’s statements on 

the recording. Again, however, most of Gee’s statements were innocuous, and 

the prejudicial statement regarding the ammonia in his lungs is insufficient to 

require reversal, even if it were a testimonial statement.9 

 

9

 The record does not indicate that Gee’s statement was testimonial, i.e., made to prove past events 

potentially relevant to later criminal proceedings. See King, 985 N.E.2d at 758. 
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V. Prosecutor’s Statements During Closing Argument

[52] Harrison also claims that the trial court erred in overruling his objection to the 

prosecuting attorney’s act of reading to the jury a portion of a published opinion 

of this court. During the State’s closing argument, the prosecuting attorney read 

a portion of this court’s opinion in Dawson v. State, 786 N.E.2d 742, 748 (Ind. Ct. 

App. 2003), as follows: 

The Court of Appeals in reviewing this definition of 

manufacturing said “We conclude that once an individual crushes 

up pills in order to separate the ephedrine from the pill binders the 

manufacturing process has begun. Focusing upon the key phrases 

in the definition this determination we observe that manufacture is 

production, preparation, or processing of a controlled substance by 

extraction from substances of natural origin.” They went on to 

say, “The main ingredient in ephedrine -- the main ingredient is 

ephedrine and is the substance which is chemically converted into 

methamphetamine. The crushing of the pills into a powder form 

indicates not only the possession of the precursor ephedrine, but 

that it also begins the extraction process. This sufficiently meets 

the definition of manufacturing in order to support a conviction 

for dealing in methamphetamine by knowingly manufacturing it.” 

That’s the Indiana Court of Appeal -- Court of Appeals.

Tr. pp. 548-49. Harrison makes no claim that this is an inaccurate quotation, nor 

does he claim that it was an improper statement of the law. Instead, he claims 

that it is improper to read case law to a jury. However, this is not accurate. We 

have held before that it is proper for counsel to argue both law and facts in a 

closing statement. Nelson v. State, 792 N.E.2d 588, 593 (Ind. Ct. App. 2003),

trans. denied. Our supreme court has held that reading case law to the jury is 

proper in final argument so long as it is clear that the prosecutor is reading or 
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referring to a separate case. Hernandez v. State, 439 N.E.2d 625, 630 (Ind. 1982)

(citing Griffin v. State, 275 Ind. 107, 114, 415 N.E.2d 60, 65 (1981)). 

[53] Here, the prosecuting attorney made it clear that she was reading from a prior 

opinion of this court in a separate case. The trial court instructed the jury that the 

arguments of counsel were not evidence. Appellant’s App. p. 232. Accordingly, 

we cannot say that the trial court abused its discretion in overruling Harrison’s 

objection to the prosecuting attorney’s reading from Dawson during the State’s 

closing argument. 

VI. References to Defendant’s Nickname

[54] Lastly, Harrison claims that the trial court erred in permitting the use of 

Harrison’s nickname, “Bam Bam,” during trial. The State argues at some length 

that Harrison waived this argument by failing to object to each instance in which 

Harrison was referred to as “Bam” or “Bam Bam.” We agree. 

Harrison did not object to each instance in which his nickname was mentioned 

at trial. See, e.g., Tr. pp. 152, 170-71. A party must generally continue to object 

and obtain a ruling for each individual instance of allegedly inadmissible 

evidence. Hutcherson v. State, 966 N.E.2d 766, 770 (Ind. Ct. App. 2012), trans, 

denied. 

[55] Waiver notwithstanding, Harrison’s argument is unavailing. Harrison claims that 

the use of his nickname was irrelevant and unduly prejudicial. In general, all 

relevant evidence is admissible. Ind. Evidence Rule 402. “‘Relevant evidence’ 

means evidence having any tendency to make the existence of any fact that is of 
Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015 Page 27 of 29

consequence to the determination of the action more probable or less probable 

than it would be without the evidence.” Ind. Evidence Rule 401. Even relevant 

evidence “may be excluded if its probative value is substantially outweighed by 

the danger of unfair prejudice, confusion of the issues, or misleading the jury[.]” 

Ind. Evidence Rule 403. The trial court has discretion to permit the admission of 

even marginally relevant evidence. Wilson v. State, 997 N.E.2d 38, 43 (Ind. Ct. 

App. 2013), trans. denied (citing Thompson v. State, 671 N.E.2d 1165, 1171 (Ind.

1996)). 

[56] Our supreme court has held that the use of a defendant’s nickname may be 

relevant to the issue of identity. McAbee v. State, 770 N.E.2d 802, 805 (Ind. 2002). 

The use of a nickname is questionable, however, where no apparent reason exists 

not to use a defendant's proper name, and, even more so where the nickname 

itself carries at least the implication of wrongdoing. Id. 

[57] Here, the nickname “Bam Bam” has no apparent implication of wrongdoing or 

criminality.

10 Moreover, the use of Harrison’s nickname was relevant to proving 

his identity and his ownership of the Pontiac from which he fled and the mobile 

phone found therein. The prior owner of the Pontiac testified, “I sold it to a feller 

-- his name was Bam Bam.” Tr. p. 152. The prior owner did not know 

Harrison’s actual name. Moreover, several of the messages on the phone referred 

 

10 In fact, “Bam Bam” is the name of a lovable, exceptionally strong infant character on the animated 

series “The Flintstones.” See http://flintstones.wikia.com/wiki/Bamm-Bamm_Rubble; 

http://www.imdb.com/character/ch0000639/. 
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to “Bam” or “Bam Bam.” Under these facts and circumstances, we conclude that

the trial court did not abuse its discretion in permitting references to Harrison’s 

nickname. See People v. Salgado, 678 N.E.2d 648 (Ill. App. Ct. 1997) (holding 

that use of defendant’s nickname of “Bam Bam” was not improper where the 

name itself did not carry a negative connotation that was immediately 

recognizable and where defendant’s friends knew and identified him by that 

name). 

Conclusion

[58] In summary, we hold that the State presented sufficient evidence to convict 

Harrison of manufacturing methamphetamine. However, Harrison’s convictions 

for possession of anhydrous ammonia and possession of precursors are lesserincluded offenses of the greater offense of manufacturing methamphetamine and 

must be reversed. Harrison may not now assert a claim of improper search or 

seizure in his mobile phone, which he voluntarily abandoned. The trial court did 

not commit reversible error in admitting evidence regarding the telephone call 

between Hatfield and Pointer or between Harrison and Gee. Nor did the trial 

court err in permitting the prosecuting attorney to read from a published opinion 

of this court during the State’s closing argument. Lastly, the trial court did not 

abuse its discretion in permitting references to Harrison’s nickname of “Bam 

Bam.” 

[59] Accordingly, we affirm Harrison’s convictions for Class B felony manufacturing 

methamphetamine and Class A misdemeanor possession of paraphernalia but 

reverse his convictions for Class B felony possession of anhydrous ammonia and 
Court of Appeals of Indiana | Opinion No. 74A01-1407-CR-328 | April 21, 2015 Page 29 of 29

Class B felony possession of chemical precursors and remand with instructions 

that the trial court vacate the convictions and sentences thereon.11 Harrison’s 

habitual offender adjudication remains. 

Najam, J., and Bradford, J., concur.

 

11 Because the trial court ordered Harrison’s sentences to be served concurrently, Harrison’s aggregate 

sentence will be unaffected by our holding.