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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: STEVEN E. RIPSTRA Ripstra Law Office Jasper, Indiana ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana GEORGE P. SHERMAN Deputy Attorney General Indianapolis, Indiana

FILED
Jun 18 2012, 9:50 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
TINA R. LIKE SIMMONS, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

CLERK

No. 63A05-1111-CR-615

APPEAL FROM THE PIKE CIRCUIT COURT The Honorable Jeffrey L. Biesterveld, Judge Cause No. 63C01-1001-FB-25

June 18, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Chief Judge

Case Summary and Issues Tina R. Like Simmons was convicted after a jury trial of neglect of a dependent as a Class C felony, possession of methamphetamine as a Class D felony, and maintaining a common nuisance as a Class D felony. She appeals, raising five issues for our review, which we consolidated and restate as three: 1) whether the trial court abused its discretion by allowing the prosecutor's cross-examination of Michael Marvell; 2) whether the trial court abused its discretion in admitting Officer Tharp's testimony as a skilled witness; and 3) whether the evidence is sufficient to sustain Simmons's convictions. Concluding the trial court did not abuse its discretion by allowing the prosecutor's cross-examination of Marvell or by admitting Officer Tharp's testimony, and that sufficient evidence was presented to support Simmons's convictions, we affirm. Facts and Procedural History After receiving a tip of drug activity, police went to the residence of Michael Marvell. Todd Marvell, Michael's son, Jessica Bullock, Lisa Bradley, and Simmons's eighteen-month-old-son, R.S., were present in the home. Michael Marvell and Simmons were not present. After searching the home, police found R.S. lying on a bed in

Michael's room. Also in Michael's bedroom, in a closet covered only b y a tacked-up blanket, were several mason jars containing methamphetamine and various paraphernalia, including aquarium tubing, funnels, a metal strainer, a roll of aluminum foil, pens modified to snort methamphetamine, multiple packs full of pseudoephedrine pills,1 plastic baggies and digital scales, a pyrex cooking pan, a makeshift pipe, and "liquid

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Pseudoephedrine is the main ingredient in methamphetamine.

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lightning" drain opener.2 Other contraband, including pills and a bottle of solvent, were in the bedroom outside of the closet. Also in the bedroom, police found various

children's toys, stuffed animals, a toddler chair, a female's handbag, a jean purse, and a female's pocketbook.3 The bedroom was no larger than ten-by-fourteen feet. In the kitchen, police found a pitcher containing two layers of liquid, the top layer being a solvent, and a blender containing a white residue. Simmons was charged with dealing in methamphetamine, a Class B felony; possession of two or more chemical reagents or precursors with the intent to manufacture controlled substances, maintaining a common nuisance, possession of methamphetamine, and neglect of a dependent, all Class D felonies; and possession of paraphernalia, a Class A misdemeanor. Over Simmons's objection, the State later amended the neglect of a dependent charge to a Class C felony. The State also dismissed the charges for

possession of paraphernalia and possession of two or more chemical reagents or precursors with the intent to manufacture controlled substances. At trial, the State called Officer Chad Tharp to testify as a skilled witness under Indiana Rule of Evidence 701. First, the prosecutor asked Officer Tharp about his experience, and Officer Tharp stated he previously worked on several methamphetamine laboratory cases, received training on methamphetamine production while at the police academy, attended a national conference a week before trial to learn about methamphetamine production, participated in manufacturing methamphetamine as a
Liquid lightning is a sulfuric acid and is used in the manufacture of methamphetamine. Although not discussed in detail in the parties' briefs, based on the record it appears police also found contraband in another single-wide trailer and shed on the property, but the trial court granted Simmons's motion to suppress the evidence found in those locations. However, the trial court's order granting Simmons's motion to suppress the evidence from those two locations did not also suppress evidence found in Marvell's double -wide trailer located nearby.
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training exercise using the "red phosphorous method," and observed several "Nazi" methamphetamine laboratories. The prosecutor then asked, "[b]ased . . . on your training and experience, what percentage of ephedrine or pseudoephedrine . . . can be successfully converted to methamphetamine using the Nazi method?" Tr. at 277. Simmons objected, contending Officer Tharp lacked sufficient personal knowledge regarding the Nazi method because he had never manufactured methamphetamine using the Nazi method. The prosecutor responded that such personal knowledge is not required when using a skilled witness. The trial court agreed and overruled Simmons's objection, allowing Officer Tharp to testify. Officer Tharp then answered the State's prior question: "[u]sing the Nazi method, you could get, depending on . . . now on the perfect day, the wonderful, most perfect day that you've ever seen, that we've never seen, ninety percent (90%). Average. You can get seventy percent (70%) yield out of a manufacture." Tr. at 280 (ellipses in original). Shortly thereafter, after asking other questions about the manufacture of

methamphetamine, the State repeated its question concerning the typical yield of methamphetamine by posing a hypothetical based on a box of ephedrine: "But in your experience the typical yield from a two point four (2.4) gram box of ephedrine is somewhere in the, in the neighborhood of, [sic] of seventy percent (70%) of two point four (2.4) grams, which is between a gram and a half and two grams?" Id. at 281. Officer Tharp replied, "What we, normally when we talk, when, if we get someone for manufacturing, we'll talk to them. Hey, what do you yield? You know, what, what percentages do you yield? We'll talk to them about how they do it. They can yield up to seventy percent (70%). Most of them." Id.
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Todd Marvell's fianc

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