APPEAL FROM THE TIPPECANOE SUPERIOR COURT. The Honorable Randy J. Williams, Judge. Cause No. 79D01-1308-FB-21.
ATTORNEY FOR APPELLANT: BRUCE W. GRAHAM, Graham Law Firm, P.C., Lafayette, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; BRIAN REITZ, Deputy Attorney General, Indianpolis, Indiana.
MATHIAS, Judge. RILEY, J., and CRONE, J., concur.
Dale Bulthuis III (" Bulthuis" ) was convicted following a jury trial in Tippecanoe Superior Court of Class B felony dealing in methamphetamine and two counts of Class C felony neglect of a dependent. The trial court sentenced Bulthuis to an aggregate term of eighteen years. The trial court also ordered restitution in the amount of $9,597 to the victim and $2,443.44 to the State. Bulthuis appeals and presents three issues, which we restate as:
I. Whether the trial court erred in admitting evidence found during a search of the garage of the home in which Bulthuis was located;
II. Whether the State presented evidence sufficient to support Bulthuis's conviction for Class B felony dealing in methamphetamine; and
III. Whether the trial court abused its discretion in ordering restitution to the State.
Facts and Procedural History
On August 16, 2013, Shane Allen (" Allen" ), a case manager for the Department of Child Services (" DCS" ) was investigating a report of unsupervised children and manufacturing methamphetamine at a home in Tippecanoe County. Allen therefore
met with Lieutenant Scott Hodson (" Lt. Hodson" ) of the Tippecanoe County Sheriff's Department to investigate the report. The two went to the house, parked on the street in front of the residence, and walked up the driveway to the house. When they approached the attached garage, they noticed a chemical odor, but the odor dissipated. Before they could get to the front door of the house, Kristen Wireman (" Wireman" ) opened the door and stepped outside. Wireman told Allen and Lt. Hodson that she lived at the house along with Bulthuis's children, two-year-old A.B. and four-year-old R.B. Wireman also stated that she rented the house and that she had signed the lease. Allen asked Wireman if they could look inside the house, and Wireman said, " sure" and let them inside. Suppression Hearing Tr. p. 24.
Inside the house, Allen and Lt. Hodson saw the two children and another woman. Allen told Wireman that they were there to investigate a report that a man named " Dale" was manufacturing methamphetamine at the residence. Wireman stated that the defendant, Dale Bulthuis, was the father of the children and that he visited the residence, but that he did not live there and was not there at the time. The older child, however, nodded his head and said, " yes." Suppression Hearing Tr. p. 24. Shortly thereafter, Lt. Hodson asked Wireman again if Bulthuis was there, and Wireman said he was not. But R.B. again nodded his head " yes." Id. Lt. Hodson then asked Wireman if she would mind if he looked in her house for Bulthuis. Wireman responded, " no, I don't mind at all." Id. Lt. Hodson asked R.B. where Bulthuis was. The boy stated that Bulthuis was in the bedroom and led the officer to a bedroom down the hallway, where Lt. Hodson saw a man, later identified as Bulthuis, hiding in a closet. After waiting for another officer to arrive, Lt. Hodson took Bulthuis out of the closet and placed him in a police vehicle. Lt. Hodson then discovered that there was an active warrant for Bulthuis's arrest.
Upon returning to the house, Lt. Hodson asked Wireman if he could look in the garage. Wireman initially responded, " yeah," but then, as Lt. Hodson opened the garage door, Wireman asked why he wanted to look in the garage. Suppression Hearing Tr. p. 26. Lt. Hodson responded by stating that they had received information that someone had been manufacturing methamphetamine at the residence. Wireman then waved her hand and stated, " yeah, go ahead." Tr. p. 26. When Lt. Hodson entered the garage, he noted a strong chemical smell but determined that the odor was coming from a motorcycle that had just been repainted. Lt. Hodson looked in a trash bag lying on the floor of the garage and found battery shavings, which he knew was a byproduct of the manufacture of methamphetamine; he also saw camping fuel and starter fluid, which he also recognized as being used in the manufacture of methamphetamine. Inside a grill, Lt. Hodson found a device set up to generate hydrogen chloride (" HCl" ), another item used in the manufacture of methamphetamine. Because of the potential dangers presented by the presence of the suspected methamphetamine lab, Lt. Hodson ordered the occupants of the house to evacuate and contacted the Indiana State Police (" ISP" ) for assistance to safely remove the materials.
Lt. Hodson spoke with Wireman and again obtained her consent to search the house, this time having her sign a written consent form. Thereafter, Lt. Hodson learned that Wireman too had an active warrant for her arrest, and she was taken to jail. Because Wireman was no longer present and therefore unable to revoke her consent to search, Lt. Hodson decided to
obtain a search warrant. After obtaining the search warrant, the police, including ISP Detective Brock Russell (" Det. Russell" ), searched the house and garage. Det. Russell found several items associated with the manufacture of methamphetamine: empty boxes of " cold packs," lithium battery shavings, empty bottles of starting fluid, camping fuel, drain cleaner, digital scales, pieces of aluminum foil, coffee filters, and the above-mentioned HCl generator. Also found was a plastic bag with a white residue which later tested positive as methamphetamine. When the police searched the National Precursor Log Exchange (" NPLEX" ) records, they discovered that both Bulthuis and Wireman had reached the allowed purchase limit of 7.2 grams of pseudoephedrine within thirty days. Indeed, both had recently attempted to purchase pseudoephedrine but been denied due to having reached the allowed limit.
Detective Jacob Amberger (" Det. Amberger" ) of the Tippecanoe County Sheriff's Department later interviewed Bulthuis. Bulthuis signed a written acknowledgement of his Miranda rights, but still spoke with the detective. During his interview, Bulthuis admitted that he " screwed up" and claimed that he had only " tinkered with" the HCl generating bottle found in the garage. Ex. Vol., State's Ex. 74T, pp. 12, 14. Bulthuis stated that he obtained pseudoephedrine so that he could make " a couple [of] extra bucks." Id. at 12. Bulthuis also told the detective that the bottle found in the garage was the " last one" and that the " girls" were not involved. Id. at 14.
On August 21, 2013, the State charged Bulthuis with dealing in methamphetamine as a Class B felony, two counts of neglect of a dependent as a Class C felony, and maintaining an illegal drug lab as a Class D felony. Thereafter, Bulthuis requested and received permission to proceed pro se. On October 28, 2013, Bulthuis filed a pro se motion to suppress. The trial court held a suppression hearing on November 5, 2013, and issued an order denying Bulthuis's motion to suppress on November 14, 2013. Per Bulthuis's request, the trial court appointed counsel to represent him at trial. A jury trial was held on November 19-20, 2013, at the conclusion of which the jury found Bulthuis guilty as charged.
At a sentencing hearing held on December 20, 2013, the trial court vacated Bulthuis's conviction for maintaining an illegal drug lab. The court then imposed a sentence of twelve years on the Class B felony conviction and six years on the Class C felony convictions. The trial court ordered the sentences on the Class C felony convictions to be served concurrently, but consecutively to the sentence on the Class B felony conviction, for an aggregate sentence of eighteen years. The court ordered Bulthuis to serve ten years executed, two years in Community Corrections, and six years suspended. Bulthuis now appeals.
I. Admission of Evidence Found During Search
A. Standard of Review
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), trans. denied. 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 ...