Court of Appeals of Indiana | Memorandum Decision 17A05-1512-CR-2179 | September 22, 2016 Page 1 of 8

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

Adam C. Squiller

Auburn, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Brian W. Ellis,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

September 22, 2016

Court of Appeals Case No.

17A05-1512-CR-2179

Appeal from the DeKalb Superior 

Court

The Honorable Kevin P. Wallace, 

Judge

Trial Court Cause No.

17D01-1405-FA-11

Barnes, Judge.
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Case Summary

[1] Brian Ellis challenges his conviction for Class A felony dealing in 

methamphetamine. We affirm.

Issue

[2] Ellis presents one issue for our review, which we restate as whether the

evidence is sufficient to support his conviction for Class A felony dealing in 

methamphetamine.

Facts

[3] On May 25, 2014, Mary Thacker and Mike Avery were working in their 

backyard in DeKalb County when they heard a loud noise similar to an 

explosion and saw smoke coming from their neighbor’s shed. Thacker saw 

Ellis and another person near the shed. Thacker and Avery smelled an odor 

like ammonia, and they alerted the police. 

[4] DeKalb County Sheriff’s Department Deputies Larry Kees, Jarrid Treesh, and 

Courtney Fuller responded to Thacker and Avery’s report. When they arrived,

they spoke with Mable Ellis (“Mable”), Ellis’s eighty-two-year-old mother and 

the property owner, who gave her consent to search. The officers saw a light on 

inside the shed in the backyard, heard voices, and smelled a chemical odor 

similar to ammonia. Deputy Treesh knocked on the door to the shed and 

opened the door. He saw two men seated in chairs, open beer bottles, and a 

reaction vessel—a plastic bottle containing a white granular substance, black 

flakes, and a bluish liquid, which the officers recognized as an active meth lab—
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between the two chairs. The men were later identified as Ellis and Tyler Cole. 

Cole told the deputies he was “just there to clean out a garage,” and was 

released. Tr. p. 190. He was later charged with and convicted of possessing 

methamphetamine. Ellis told Deputy Treesh that Cole was showing him how 

to manufacture methamphetamine.

[5] From the shed and a garbage can outside the shed, law enforcement officers 

collected cold packs, Zippo lighter fluid, Coleman camp fuel, Liquid 

Lightening, coffee filters, battery casings, Kleen Out, blister packs of 

pseudoephedrine, and a “spent one-pot.” Tr. p. 278. They also searched the 

bedroom in which Ellis and his wife were staying and found drug 

paraphernalia, including a pipe, a measuring device, and needle nose pliers. On 

a dresser in the bedroom, officers discovered a credit card bearing Ellis’s name 

amid several “tin foilies,” which “are used a lot of times in the smoking of 

methamphetamine . . . .” Id. In the sleeping compartment of Ellis’s semi, 

which was parked at Mable’s house, officers found a bag of methamphetamine 

between the wall of the cab and the mattress. 

[6] The State charged Ellis with 1) Class A felony dealing in methamphetamine; 2) 

Class B felony possession of methamphetamine; 3) Class C felony possession of 

precursors; and 4) Class D felony possession of paraphernalia. A jury found 

Ellis guilty of dealing in methamphetamine and possession of 
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methamphetamine1 and found him not guilty of possession of paraphernalia. 

The jury was unable to reach a verdict on the possession of precursors charge. 

The trial court sentenced Ellis to twenty years for dealing in methamphetamine 

concurrent with six years for possessing methamphetamine for an aggregate 

sentence of twenty years in the Department of Correction. 

Analysis

[7] Ellis contends the evidence is not sufficient to support his conviction for dealing 

in methamphetamine because there is no direct evidence he was involved in 

manufacturing the drug.2

When reviewing a claim of insufficient evidence, an appellate 

court considers only the evidence most favorable to the verdict 

and any reasonable inferences that may be drawn from that 

evidence. If a reasonable finder of fact could determine from the 

evidence that the defendant was guilty beyond a reasonable 

doubt, then we will uphold the verdict. We do not reweigh the 

evidence or judge the credibility of witnesses. These evaluations 

are for the trier of fact, not appellate courts. In essence, we assess 

only whether the verdict could be reached based on reasonable 

inferences that may be drawn from the evidence presented.

 

1 Ellis does not challenge his conviction for possession of methamphetamine.

2 Ellis also contends his argument regarding the sufficiency of the evidence is “supported by the fact that the 

jury was unable to conclude that the State proved its case against Ellis for Possession of Precursors With the 

Intent to Manufacture Methamphetamine beyond a reasonable doubt.” Appellant’s Br. p. 11. Ellis candidly 

concedes, however, that “logically inconsistent verdicts are not a basis in Indiana for vacating a conviction.” 

Id.; See Beattie v. State, 924 N.E.2d 643, 644 (Ind. 2010) (holding “inconsistent verdicts are permissible and 

not subject to appellate review . . . .”).
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Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (quotations omitted) (citations 

omitted). 

[8] The statute in effect at the time Ellis committed these crimes defined dealing in 

methamphetamine as knowingly or intentionally manufacturing 

methamphetamine, pure or adulterated. Ind. Code § 35-48-4-1.1. The offense 

is a Class A felony if, as here, it is committed in, on, or within 1000 feet of a 

public park or a family housing complex.3 Id.; App. p. 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 syntheses, 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. 

[9] Constructive possession of items used to manufacture methamphetamine is 

sufficient to prove an appellant knowingly or intentionally manufactured the 

drug. See Floyd v. State, 791 N.E.2d 206 (Ind. Ct. App. 2003), trans. denied

(citing Bush v. State, 772 N.E.2d 1020, 1022-23 (Ind. Ct. App. 2002)), trans. 

denied). “A person constructively possesses an item when the person has (1) the 

capability to maintain dominion and control over the item; and (2) the intent to 

 

3 Ellis does not challenge the enhancement to a Class A felony.
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maintain dominion and control over it.” Sargent v. State, 27 N.E.3d 729, 733 

(Ind. 2015) (citation omitted). 

Where a person’s control over the premises where contraband is 

found is non-exclusive, intent to maintain dominion and control 

may be inferred from additional circumstances that indicate that 

the person knew of the presence of the contraband. Additional 

circumstances may include: (1) incriminating statements by the 

defendant; (2) attempted flight or furtive gestures; (3) a drug 

manufacturing setting; (4) proximity of the defendant to the 

drugs or weapons; (5) drugs or weapons in plain view; and (6) 

location of the drugs or weapons in close proximity to items 

owned by the defendant.

Hardister v. State, 849 N.E.2d 563, 574 (Ind. 2006) (citations omitted).

[10] Ellis did not have exclusive control over the areas of Mable’s house in which 

police found the reaction vessel and items commonly used to manufacture 

methamphetamine. However, Ellis told Officer Treesh he “believed” the bottle 

was a methamphetamine lab and that Cole was showing him how to 

manufacture methamphetamine. Tr. pp. 237, 238. Police discovered Ellis 

sitting with Cole and drinking a beer near the reaction vessel, which was in 

plain view. Also in plain view in the shed were a number of items commonly 

used to manufacture methamphetamine—a grinder coated with white residue, 

Colman camping fuel, Liquid Fire, salt, tape, and tubes, blister packs of 

pseudoephedrine, and battery casings. Police also discovered a bag of 

methamphetamine in the sleeping area of semi in which Ellis essentially lives 

for sometimes weeks at a time. 
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[11] It is clear that Ellis knew of the presence of the reaction vessel; he told police he 

believed it was methamphetamine. The jury could reasonably infer Ellis was 

capable of maintaining dominion and control over the reaction vessel and items 

used to manufacture methamphetamine based on his proximity to them. 

Likewise, the jury could reasonably infer from Ellis’s statement that Cole was 

showing him how to manufacture methamphetamine and his proximity to both 

the reaction vessel and the items used to manufacture methamphetamine that 

he had the intent to maintain dominion and control over those items. This 

evidence was sufficient to prove Ellis had constructive possession of the 

reaction vessel and the items frequently used to manufacture methamphetamine 

and, therefore, is sufficient to support his conviction.

[12] Ellis argues that both he and Cole testified Ellis was not involved in 

manufacturing methamphetamine and directs us to his own self-serving 

testimony that Cole, not Ellis was responsible for the contraband. “The jurors 

are the triers of fact, and in performing this function, they may attach whatever 

weight and credibility to the evidence as they believe is warranted.” Parks v. 

State, 734 N.E.2d 694, 700 (Ind. Ct. App. 2000), trans. denied. We may not 

reweigh the evidence. Baker, 968 N.E.2d at 229.

Conclusion

[13] The evidence is sufficient to support Ellis’s conviction for Class A felony 

dealing in methamphetamine. We affirm.

[14] Affirmed.
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Riley, J., and Bailey, J., concur.