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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: PATRICIA CARESS McMATH Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
ROBERT J. NICKELS, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 52A05-0603-CR-155

APPEAL FROM THE MIAMI CIRCUIT COURT The Honorable Rosemary Higgins Burke, Judge Cause No. 52C01-0503-FB-72

December 29, 2006 MEMORANDUM DECISION - NOT FOR PUBLICATION BAILEY, Judge

Case Summary Appellant-Defendant Robert J. Nickels ("Nickels") appeals his conviction and sentence for Dealing in a Narcotic Drug, a Class B felony. 1 We affirm. Issues Nickels presents three issues for review: I. Whether evidence gained as a result of Nickels' arrest is inadmissible because the arrest warrant is unsupported by probable cause; Whether the trial court erroneously denied Nickels' motion for a directed verdict due to the destruction of evidence; and Whether Nickels' sentence is inappropriate. Facts and Procedural History Nickels was convicted of Auto Theft and placed on probation. During 2004, the State filed two petitions to revoke Nickels' probation, alleging that he had committed the offenses of Battery Resulting in Serious Bodily Injury and Invasion of Privacy. Nickels was free on bond when, on March 1, 2005, another notice of probation violation was filed. On March 3, 2005, the State filed an Amended Petition to Modify or Revoke Probation, alleging that Nickels violated his probation by committing the additional offenses of Possession of Methamphetamine, Possession of a Controlled Substance and Possession of Paraphernalia. On March 3, 2005, the trial court ordered Nickels' arrest. During the evening hours of March 16, 2005, City of Peru Police Officers Jay Richardson, Jason Mooney, Sam Finnegan, and Mike Stuber arrived at Nickels' residence to execute the arrest warrant. Officers Mooney and Stuber walked up the alley toward the rear

II.

III.

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of the residence and immediately detected the odor of anhydrous ammonia. Officers Richardson and Finnegan knocked at the front door several times without a response. Officer Richardson also detected an odor of anhydrous ammonia, and informed the other officers that he intended to procure a search warrant for the premises. The officers began dispersing so as to secure the property. Officer Richardson heard movement inside a fenced area. As he approached the fence, Officer Richardson saw Nickels crouched over a container of bubbling liquid, a container with a bluish liquid and a container with orange sludge in it. Nickels was arrested. The officers obtained a search warrant for the premises. The warrant was executed with assistance from the Indiana State Police Clandestine Drug Lab Team, and yielded methamphetamine, rock salt, gas line antifreeze, camping fuel, battery cases stripped of lithium, plastic tubing, fish tank pumps and a device for smoking methamphetamine. On March 24, 2005, the State charged Nickels with Dealing in a Narcotic Drug, Possession of Methamphetamine, a Class D felony, 2 Possession of Chemical Reagents or Precursors with Intent to Manufacture, a Class D felony, 3 Maintaining a Common Nuisance, a Class D felony, 4 two counts of Possession of a Controlled Substance, a Class D felony, 5 Illegal Possession of Anhydrous Ammonia, a Class D felony, 6 Possession of a Switchblade

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Ind. Code

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