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

Jesse R. Poag

Newburgh, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Eric P. Babbs

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Robert S. Kaufman,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

July 21, 2015

Court of Appeals Case No.

82A01-1411-CR-516

Appeal from the Vanderburgh 

Circuit Court.

The Honorable Kelli E. Fink, 

Magistrate.

Cause No. 82C01-1310-FA-1069

Darden, Senior Judge

Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-516 | July 21, 2015 Page 1 of 15
Statement of the Case

[1] Robert S. Kaufman appeals from his conviction after a jury trial of dealing in 

methamphetamine1

as a Class A felony, challenging the sufficiency of the 

evidence to support his conviction. We affirm in part, reverse in part and 

remand with instructions.

Issues

[2] Kaufman presents the following issues for our review:

I. Whether the State presented sufficient evidence that the 

Wood Creek Inn & Suites was a family housing complex 

at the time of the offense. 

II. Whether the State presented sufficient evidence that

Kaufman had taken a substantial step toward production 

of methamphetamine.

Facts and Procedural History

[3] On June 23, 2013, at approximately 5:29 p.m. Kaufman purchased 1.2 grams of 

pseudoephedrine from a Walgreens Store located on Green River Road in 

Evansville, Indiana. Later that same day, shortly before 11:00 p.m., Evansville 

Police Department officers responded to a tip about a possible meth lab site. 

They arrived at a railroad bridge near the Wood Creek Inn & Suites located just 

west of Old U.S. Highway 41 where they discovered several items often 

associated with the manufacture of methamphetamine. Those items were as 

1 Ind. Code § 35-48-4-1.1 (2006).

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follows: empty pseudoephedrine blister packs; a Walgreens receipt showing the 

purchase of pseudoephedrine earlier that day; a box of ammonium nitrate cold 

packs, one of which had been cut open and its contents removed; an empty can 

of starting fluid, which was punctured on the bottom; a two-pound container of 

lye; packaging for lithium batteries; remnants of stripped batteries; one intact 

battery; at least one pair of pliers; a clear glass jar; a twenty ounce soda bottle; 

and coffee filters.

[4] While officers were investigating the site, another officer observed Kaufman 

walking south along Old U.S. Highway 41 and approaching the parking lot of 

the Wood Creek Inn & Suites. Kaufman entered the parking lot where he 

spoke with a woman. While Kaufman was speaking to the woman, the officer 

approached him, and took him into custody, and he was later interviewed.

[5] During the interview, Detective Chris Goergen asked Kaufman to recount 

where he had been throughout the day. According to Kaufman, he had 

awakened at approximately 3 p.m., met a friend and had something to eat. At 

approximately 4:00 p.m. he encountered some people in a green car. They 

went to a Walmart, but none of them went inside. He stated that just prior to 

being taken into custody, he had walked to a nearby Motel 6 and was walking 

south toward the Wood Creek Inn & Suites when he encountered police 

officers. Kaufman was not charged at that time.

[6] Officers continued their investigation into the suspected meth lab site. An 

officer was able to recover a latent fingerprint from the packaging of the cold 

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packs found under the bridge, and the fingerprint was later identified as 

Kaufman’s. The packaging also had two other fingerprints from unknown 

individuals. Officers matched the Walgreens receipt found underneath the 

bridge with video tape of Kaufman’s purchase of pseudoephedrine on June 23, 

2013, and an NPLEx2

report of that purchase. There was no finished product

or evidence of methamphetamine found at the site.

[7] A warrant was issued for Kaufman’s arrest on September 30, 2013. The officer 

who took Kaufman into custody on October 2, 2013, explained to Kaufman 

that the arrest was for the incident near the Wood Creek Inn & Suites for 

manufacturing methamphetamine. Kaufman stated that in his opinion, the 

case should be charged as possession of precursors. At the conclusion of 

Kaufman’s jury trial, the jury found Kaufman guilty of Class A felony dealing 

in methamphetamine. The trial court sentenced Kaufman to thirty-four years 

in the Department of Correction. Kaufman now appeals.

Discussion and Decision

[8] Kaufman raises two challenges to the sufficiency of the evidence supporting his 

conviction. First, he argues that there is insufficient evidence to establish that 

the Wood Creek Inn & Suites was a family housing complex at the time of the 

2 NPLEx is an acronym for the National Precursor Log Exchange. See Embrey v. State, 989 N.E.2d 1260, 

1263 (Ind. Ct. App. 2013).

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offense. He also challenges the sufficiency of the evidence that he took a 

substantial step toward the manufacture of methamphetamine. 

[9] The jury was instructed on the elements of the charged offense and the lesserincluded offenses of attempted dealing in methamphetamine as a Class A 

felony, dealing in methamphetamine as a Class B felony, possession of 

chemical reagents or precursors with the intent to manufacture a controlled 

substance as a Class C felony, and possession of chemical reagents or 

precursors with the intent to manufacture a controlled substance as a Class D 

felony. The jury returned its verdict of guilty as to the charged offense. 

[10] Our standard of review for claims challenging the sufficiency of the evidence is 

well-settled. We do not reweigh the evidence or reassess the credibility of 

witnesses in the course of our review. Boggs v. State, 928 N.E.2d 855, 864 (Ind. 

Ct. App. 2010), trans. denied. We consider only the probative evidence and 

reasonable inferences supporting the verdict and consider conflicting evidence 

most favorably to the trial court’s ruling. Id. The conviction will be affirmed 

unless no reasonable fact-finder could find the elements of the crime proven 

beyond a reasonable doubt. Id. It is not necessary that the evidence presented 

at trial overcome every reasonable hypothesis of innocence. Id. We will 

conclude that the evidence is sufficient if an inference may reasonably be drawn 

from it to support the verdict. Id. 

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I. Family Housing Complex

[11] Kaufman argues that there is insufficient evidence in the record to establish that 

Wood Creek Inn & Suites was a family housing complex at the time of the 

offense. In order to convict Kaufman of dealing in methamphetamine as a 

Class A felony, the State was required to prove beyond a reasonable doubt that 

Kaufman knowingly or intentionally manufactured methamphetamine in, on, 

or within one thousand feet of a family housing complex. Ind. Code § 35-48-4-

1.1(b)(3)(B)(iii). A family housing complex is defined in pertinent part as “a 

building or series of buildings that contains at least twelve (12) dwelling units 

that is operated as a hotel or motel (as described in IC 22-11-18-1).” Ind. Code 

§ 35-31.5-2-127 (2012). Hotels and motels are defined in Indiana Code section 

22-11-18-1 (2012) as “buildings or structures kept, maintained, used, advertised, 

or held out to the public as inns or places where sleeping accommodations are 

furnished for hire for transient guests.” 

[12] David Huffine, the general manager of the Wood Creek Inn & Suites, testified 

that it is “an extended stay hotel” that rents by the week and the month. Tr. p. 

198. There are eighty-six rooms of which thirty-two are apartments. Huffine 

stated that at the time of trial sixty-three units were rented and that of the 

families staying there approximately twenty percent had children. On crossexamination, Huffine testified that the Wood Creek Inn & Suites was not a 

motel or a hotel, but was “extended stay.” Tr. p. 201.

[13] Linda Freeman, Chief Deputy of the Vanderburgh County Surveyor’s Office, 

testified about a map she had produced showing what places and buildings

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were within one thousand feet of what she described as “Wood Creek 

Apartments.” Tr. p. 210. The bridge under which the suspected meth lab site 

was located was within one thousand feet of Wood Creek Inn & Suites. 

[14] In Richard v. State, 19 N.E.3d 284 (Ind. Ct. App. 2014), we considered this issue 

with respect to a conviction for dealing in cocaine within one thousand feet of a 

public park. One of the contentions on appeal challenged the sufficiency of the 

evidence that the Garden Estates Housing Complex was a family housing 

complex at the time of the offense. In concluding that the evidence was 

insufficient, we noted that while the State had established that the family 

housing complex operated as such at the time of trial, the State had not 

established that it was such at the time of the offense. We held that “[t]he fact 

that a family housing complex existed at the time of the offense is an essential 

element of the charge.” 19 N.E.3d at 287 (emphasis in original).

[15] Here, the State established on direct examination that the Wood Creek Inn & 

Suites operated as a family housing complex at the time of trial. However, 

there was no evidence presented by the State to establish that it operated as such 

at the time of the offense. Nonetheless, Kaufman, on cross-examination of 

Huffine, after asking for a percentage of the families who lived there that had 

children, asked him, “Is that generally run the way it is?” Tr. p. 200. Huffine 

responded, “Yes sir.” Id. at 201. Kaufman then asked Huffine if he considered 

the business to be an apartment complex. Huffine replied, “No sir, we’re just 

an extended stay hotel. . . .” Id.

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[16] Based on the evidence presented at trial, it appears that there is some evidence

to support the jury’s conclusion that the Wood Creek Inn & Suites was 

operated as a hotel or motel at the time of the offense. Our standard of review 

prevents us from reweighing the evidence. Boggs, 928 N.E.2d at 864. We must 

examine the record to determine if there is evidence sufficient to support the 

jury’s decision. Id. Here, we find that it does. 

II. Evidence of Manufacturing 

[17] In order to convict Kaufman of dealing in methamphetamine as a Class A 

felony, the State was required to prove beyond a reasonable doubt that 

Kaufman knowingly or intentionally manufactured methamphetamine in, on, 

or within one thousand feet of a family housing complex. Ind. Code § 35-48-4-

1.1(b)(3)(B)(iii). In this issue, he challenges the evidence supporting his 

conviction that he was engaged in the manufacturing process. Manufacturing is 

defined by statute in pertinent part as “the production, preparation, 

propagation, compounding, conversion, or processing of a controlled 

substance.” Ind. Code § 35-48-1-18 (2001). Indiana Code section 35-41-5-1 

(1977) defines an attempt as occurring when a person “acting with the 

culpability required for commission of the crime . . . engages in conduct that 

constitutes a substantial step toward commission of the crime.” 

[18] At Kaufman’s jury trial, Detective Brock Hensley testified in great detail about 

the methamphetamine manufacturing process and the items necessary for its 

production when the one pot method is used. Typically, a one-liter or two-liter 

bottle is emptied of its contents and dried out. Ammonium nitrate pellets 

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contained in cold packs are removed from the cold pack and placed in the 

bottle. Sodium hydroxide or household lye is then placed in the bottle and 

mixed with the ammonium nitrate pellets. Those ingredients produce an 

ammonia gas. Pseudoephedrine based cold medicine is ground up and placed 

in the bottle. An organic solvent such as Coleman camping fuel or starter fluid

is placed in the bottle along with any kind of organic salt. Next, a lithium 

battery is stripped, in most cases by use of pliers, in order to retrieve the piece of 

silver metal from inside the battery. The piece of silver metal is placed in the 

bottle. If Coleman camping fuel is used, the water contained in the fuel will 

spark the piece of metal. Sometimes water is used to start the reaction if 

another organic solvent is used. At that point the chemical reduction process 

has started and the methamphetamine lab is rolling. 

[19] The reduction breaks down the pseudoephedrine, which is in solid form, and 

generates methamphetamine oil, which is suspended in the Coleman fuel. The 

reduction process takes approximately forty-five to sixty minutes to complete. 

At that point there are two layers of substances in the bottle. The bottom layer 

contains the unused lye, the cornstarch binding of the pseudoephedrine pills, 

and the unused ammonium nitrate pellets. The top layer, or liquid layer, 

contains the Coleman fuel, which has absorbed the methamphetamine oil. A 

baster or similar object is used to remove the liquid layer for placement in a 

glass jar. 

[20] To return that methamphetamine oil to solid form, some sort of strong acid, 

such as muriatic acid or sulfuric acid, is mixed with common household soap to 

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create hydrochloride gas in a twenty-ounce bottle. Airline tubing, such as the 

kind used for aquariums, extends from a hole in the cap of the twenty-ounce 

bottle. After the gas is produced, it is put over the methamphetamine oil to 

return it to solid form. The solid is washed with acetone, which evaporates 

quickly, in order to clean up the product. Another option is to allow the solid 

material to dry in coffee filters. 

[21] Evansville Police Sergeant David Barron, who was the supervisor over the joint 

task force meth suppression unit, testified that upon examining the items found 

under the bridge, there were “items indicative of meth manufacture,” but that 

“no chemicals had been mixed, we couldn’t find or I couldn’t find an active 

reaction vessel where the chemicals had been put together.” Tr. pp. 87, 91. 

[22] When asked about items typically used in the methamphetamine 

manufacturing process, but which were missing from the scene, such as airline 

tubing, salt, muriatic acid, or any other items used to generate the gas to smoke 

off the meth oil, both Sergeant Barron and Detective Hensley testified that

sometimes people begin the process in one location and complete the process in 

another location. None of the officers smelled the odor associated with 

manufacturing methamphetamine at the location under the bridge. The 

pseudoephedrine pills were missing from the blister packs and no residue from 

the manufacturing of methamphetamine was found. The mason jar and the 

twenty-ounce soda bottle were empty and the coffee filters appeared to be 

unused. 

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[23] In Dawson v. State, 786 N.E.2d 742 (Ind. Ct. App. 2003), trans. denied, we 

reviewed a defendant’s conviction of dealing in a controlled substance under 

Indiana Code section 35-48-4-2 (2001). We discussed two cases handed down 

by this Court on August 12, 2002, outlining the distinction between what 

evidence was sufficient to support a conviction of dealing in a controlled 

substance under Indiana Code section 35-48-4-2 and possession of two or more 

listed precursors with the intent to manufacture methamphetamine. See Bush v. 

State, 772 N.E.2d 1020 (Ind. Ct. App. 2002), trans. denied; Iddings v. State, 772 

N.E.2d 1006 (Ind. Ct. App. 2002), trans. denied. In Bush, we held that in order 

to convict the defendant of dealing in a controlled substance, the manufacturing 

process does not have to be completed, nor does there have to be actual product 

recovered. 772 N.E.2d at 1023. In Iddings, we determined that the difference 

between the evidence required to support a conviction of dealing in a controlled 

substance, and possession of two or more precursors with the intent to 

manufacture methamphetamine, is “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.” 772 N.E.2d at 1016-17. 

[24] Here, there was evidence to establish that certain items used in the 

methamphetamine manufacturing process were present. The can of starter fluid 

had been punctured, the blister packs of pseudoephedrine had been emptied, 

and a cold pack had been disassembled. Lithium batteries had been stripped, 

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presumably with the pliers found at the scene. Other items necessary for the 

manufacture of methamphetamine were present under the bridge. However, 

the State was required to present evidence found at the location of the meth lab 

site showing Kaufman engaged in the manufacturing process. The only 

evidence connecting Kaufman consisted of: (1) the receipt from Kaufman’s 

purchase of pseudoephedrine from Walgreens, (2) Kaufman’s finger print on 

the packaging of one of the cold packs, and (3) Kaufman’s presence in the 

parking lot of the Wood Creek Inn & Suites shortly after police officers arrived 

to follow up on the tip about the meth lab site. Unlike in Bush and Iddings, the 

items were not located in Kaufman’s residence or in an area under his exclusive 

control. Instead, they were located under a bridge, and fingerprints from other 

individuals were also recovered. 

[25] The State cited to our opinion Montgomery v. State, 22 N.E.3d 768 (Ind. Ct. 

App. 2014) in its brief. However, after the brief was filed, the Supreme Court 

granted transfer, vacating the opinion. In that appeal, we considered the 

sufficiency of the evidence supporting that defendant’s conviction of Class B 

felony dealing in methamphetamine. In Montgomery, the State presented 

evidence that in the two months leading up to his arrest, the defendant had 

purchased a box of pseudoephedrine every ten days. At the time of 

Montgomery’s arrest he was in possession of a smoking hydrochloride 

generator, lye, sulfuric acid, two open instant cold packs containing ammonium 

nitrate, two one-pound containers of salt, a twenty ounce soda bottle with a bilayer liquid that smelled strongly of ether, several pieces of burnt foil, an open 

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package of coffee filters, a pipe cutter, and a plastic funnel with white residue. 

That evidence, in addition to the defendant’s attempt to flee from police, was 

found to be sufficient to support Montgomery’s conviction. Our opinion, 

however, was vacated upon the grant of transfer.

[26] In this case, the evidence supports an inference that someone or a group of 

people were preparing to manufacture methamphetamine and that many of the 

required ingredients were located under the bridge. However, the evidence is 

insufficient to connect Kaufman to the offense of which he was convicted. The 

jury was given the option to convict Kaufman of attempted dealing in 

methamphetamine, but did not do so. Therefore, based on the paucity of 

evidence linking Kaufman to the manufacture of methamphetamine, we find 

that there is insufficient evidence to support his conviction for that offense. 

[27] However, the jury was instructed on the lesser-included offense of Class C 

felony possession of chemical reagents or precursors with intent to manufacture 

controlled substances. Ind. Code § 35-48-4-14.5(f) (2006). In order to convict 

Kaufman of the offense the State was required to prove beyond a reasonable 

doubt that Kaufman possessed two or more chemical reagents or precursors 

with the intent to manufacture a controlled substance within one thousand feet 

of a family housing complex. We have already concluded that the evidence 

was sufficient to establish that the location of the suspected meth lab site was 

within 1,000 feet of a family housing complex. Indiana Code section 35-48-4-

14.5(a) sets forth which items meet the definition of chemical reagent and 

precursors, which includes pseudoephedrine and ammonium nitrate. 

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[28] “Absent an admission by the defendant, intent must be determined from a

consideration of the defendant’s conduct and the natural and usual 

consequences thereof.” West v. State, 805 N.E.2d 909, 915 (Ind. Ct. App. 2004). 

“The trier of fact must resort to reasonable inferences based upon an 

examination of the surrounding circumstances to determine whether, from the 

person’s conduct and the natural consequences of what might be expected from 

that conduct, a showing or inference of the intent to commit that conduct 

exists.” Id.

[29] The evidence presented at trial establishes that the Walgreens receipt found 

under the bridge was from a purchase made by Kaufman. The NPLEx record 

and surveillance video connect him to that purchase. Further, his finger print 

was recovered from the packaging of one of the cold packs. Testimony 

established that ammonium nitrate pellets used in the manufacture of 

methamphetamines is a component of cold packs. When Kaufman was 

arrested and the charges were explained to him he stated that he thought the 

appropriate charge against him should be possession of precursors. Therefore, 

we conclude that the State presented sufficient evidence that Kaufman 

possessed two or more precursors with the intent to manufacture 

methamphetamine within 1,000 feet of a family housing complex.

Conclusion

[30] Based on the foregoing, we find that there is insufficient evidence to establish 

that Kaufman committed the offense of Class A felony dealing in 

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methamphetamine within 1,000 feet of a family housing complex. However, 

there is sufficient evidence to establish that he committed the lesser-included 

offense of possession of two or more chemical reagents or precursors with intent 

to manufacture controlled substances within 1,000 feet of a family housing 

complex. Therefore, we remand this matter to the trial court to vacate 

Kaufman’s conviction and sentence for dealing in methamphetamine as a Class 

A felony, and to enter judgment of conviction against Kaufman on one count of 

possession of two or more chemical reagents or precursors with intent to 

manufacture methamphetamine within 1,000 feet of a family housing complex

as a Class C felony, and to sentence Kaufman accordingly.

[31] Affirmed in part, reversed in part and remanded with instructions. 

Bradford, J., and Pyle, J., concur.

 

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