APPEAL FROM THE VANDERBURGH SUPERIOR COURT. The Honorable Robert J. Pigman, Judge. Cause No. 82D02-1308-FA-1138.
ATTORNEY FOR APPELLANT: MATTHEW J. McGOVERN, Anderson, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, BRIAN REITZ, Deputy Attorney General, Indianapolis, Indiana.
BRADFORD, Judge. NAJAM, J., and MATHIAS, J., concur.
Between June 25, 2013 and August 24, 2013, Appellant-Defendant Robin Eugene
Montgomery purchased a ten-count box of pseudoephedrine every ten days.
At some point, officers from the Warrick County Sherriff's Office initiated an
investigation into Montgomery's actions, during which the officers came to
believe that Montgomery was operating a mobile methamphetamine laboratory. As
part of their investigation, officers approached Montgomery at a storage unit
located in Vanderburgh County on August 25, 2013. Montgomery attempted to flee
from the officers in his vehicle, striking one officer and forcing another to
have to dive out of the path of the vehicle. A chasing officer observed
Montgomery throw a smoking yellow bag out of the window of his vehicle before
Montgomery stopped the vehicle and was apprehended. Officers also
discovered numerous items used during the course of the manufacture of
methamphetamine in the storage unit, which was rented by Montgomery.
On August 27, 2013, Appellee-Plaintiff the State of Indiana (the "State")
charged Montgomery with numerous crimes, including Class B felony dealing in
methamphetamine and Class D felony resisting law enforcement. Following a jury
trial, Montgomery was found guilty of these charges. The trial court
subsequently sentenced Montgomery to an aggregate twelve-year sentence. On
appeal, Montgomery contends that the trial court abused its discretion in
admitting certain evidence at trial. Montgomery also contends that the evidence
is insufficient to sustain his conviction for Class B felony dealing in
methamphetamine. Concluding that the trial court did not abuse its discretion in
admitting the challenged evidence and that the evidence is sufficient to sustain
Montgomery's conviction, we affirm.
FACTS AND PROCEDURAL HISTORY
Between June 25, 2013 and August 24, 2013, Montgomery purchased a ten-count box
of pseudoephedrine every ten days. At some point, Warrick County Sheriff's
officers initiated an investigation into Montgomery's actions and, on
August 15, 2013, placed a Global Positioning System ("GPS") tracker on
Montgomery's vehicle. Based on the information learned during the course of
their investigation, the officers started to suspect that Montgomery was
operating a mobile methamphetamine laboratory.
On August 25, 2013, Warrick County Detective Timothy Pierce received an alert
from the GPS tracker that Montgomery's vehicle had left the specific "zone" that
Detective Pierce had set for the tracker and had entered Vanderburgh County.
Detective Pierce learned that upon entering Vanderburgh County, Montgomery's
vehicle went to a storage unit that was rented by Montgomery, left the storage
unit, and returned to the storage unit shortly thereafter. Suspecting that
Montgomery had transferred the methamphetamine laboratory to the storage unit,
Detective Pierce requested assistance from the Evansville Police Department to
confront Montgomery. Officers from the two departments met at a local store,
drove to Montgomery's storage unit, parked, and began walking toward the storage
While the officers were walking towards the storage unit, Montgomery slowly
drove his vehicle out of the storage unit area. Montgomery's vehicle
window was down. The officers shined their flashlights at Montgomery's vehicle
and instructed him to stop the vehicle. Specifically, Sergeant Richard Bennett
of the Warrick County Sherriff's Department made eye-contact with Montgomery and
instructed him to stop. Montgomery slowed his vehicle to a near stop. Believing
that Montgomery was in the process of complying with the
orders, Evansville Police Officer Mark Saltzman crossed in front of Montgomery's
vehicle. Montgomery, however, looked at the officers, re-gripped the vehicle's
steering wheel, and accelerated "very hard." Tr. p. 153. Montgomery veered the
vehicle towards the officers, striking Evansville Police Officer Shawn Smith in
the thigh, causing a bruise, and forcing Officer Saltzman to have to dive out of
the path of the van.
Detective Pierce returned to his police vehicle, initiated his lights and siren,
and drove after Montgomery. Montgomery sped through a turn, crossing through an
oncoming lane of traffic. While pursuing Montgomery, Detective Pierce smelled a
chemical odor emanating from Montgomery's vehicle, which he knew, from his
training and experience as a police officer, was associated with the
manufacture of methamphetamine. Montgomery made another turn and threw a yellow
plastic bag out of the driver's side window of his vehicle. Detective Pierce had
to swerve to miss the bag, which had smoke coming out of it. Montgomery
eventually stopped his vehicle and was apprehended.
Detective Pierce returned to the location where Montgomery had thrown the yellow
plastic bag out of his window and found that the bag contained a plastic bottle
that still had hydrochloric acid gas smoking from it. Detective Pierce could
also hear the gas escaping from the bottle. Evansville Police Detective Patrick
McDonald, a member of the Joint Drug Task Force within the Methamphetamine
Suppression Unit, was dispatched to the location of the plastic bag. After
donning personal protective gear, Detective McDonald opened the bag and
discovered a smoking HCL gas generator. Detective McDonald later explained that
an HCL generator is "very dangerous," "extremely hazardous," and has no
legitimate purpose. Tr. pp. 257, 329.
Detective McDonald subsequently conducted a search of Montgomery's storage unit,
for which another officer had obtained a search warrant. Detective McDonald
discovered various items used in the manufacture of methamphetamine in the
storage unit, including: a smoking HCL 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 bi-layer liquid--meaning that one level
was water and the other was an organic solvent--that strongly smelled of ether,
several pieces of burnt foil, an open package of coffee filters, a pipe cutter,
and a plastic funnel with white residue. The bi-layer liquid was later tested
and found not to contain any controlled substances.
On August 27, 2013, the State charged Montgomery with two counts of Class A
felony attempted murder, one count of Class B felony dealing in methamphetamine,
and one count of Class D felony resisting law enforcement. Following a three-day
trial, a jury found Montgomery guilty of the Class B felony dealing in
methamphetamine and Class D felony resisting law enforcement charges. With
regard to the Class A felony attempted murder charges, the jury found Montgomery
guilty of the lesser-included offenses of Class A misdemeanor criminal
recklessness. The trial court subsequently merged the Class A misdemeanor
criminal recklessness convictions with Montgomery's conviction for Class D
felony resisting law enforcement. The trial court sentenced Montgomery to a
ten-year term for the Class B felony dealing in methamphetamine conviction and a
two-year term for the Class D felony resisting law enforcement conviction. The
trial court ordered that the sentences be served consecutively, for an aggregate
term of twelve years, all of which would be served in the Department of
Correction. This appeal follows.
DISCUSSION AND DECISION
I. Admission of Evidence
Montgomery contends that the trial court abused its discretion in admitting
certain evidence at trial.
A. Standard of Review
The admission or exclusion of evidence is entrusted to the discretion of the
trial court. Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012) (citing
Farris v. State, 818 N.E.2d 63, 67 (Ind. Ct. App. 2004).
We will reverse a trial court's decision only for an abuse of discretion.
[Farris, 818 N.E.2d at 67]. We will consider the conflicting evidence most
favorable to the trial court's ruling and any uncontested evidence favorable to
the defendant. Taylor v. State, 891 N.E.2d 155, 158 (Ind. Ct. App. 2008). An
abuse of discretion occurs when the trial court's decision is clearly against
the logic and effect of the facts and circumstances before the court or it
misinterprets the law. Id. In determining whether an error in the introduction of evidence affected an appellant's substantial rights, we assess
the probable impact of the evidence on the jury. Oldham v. State, 779 N.E.2d
1162, 1170 (Ind. Ct. App. 2002). Admission of evidence is harmless and is not
grounds for reversal where the evidence is merely cumulative of other evidence
admitted. Pavey v. State, 764 N.E.2d 692, 703 (Ind. Ct. App. 2002).
B. National Precursor Log Exchange ("NPLEx") Records
Montgomery challenges the admission of the NPLEx records, claiming that the
admission of the NPLEx records violated his rights under the Confrontation
Clause. For its part, the State argues that the admission of the NPLEx records
did not violate Montgomery's rights under the Confrontation Clause. We agree
with the State.
1. Overview of Requirement to Document the Purchase of Ephedrine and
Indiana Code section 35-48-4-14.7(e) provides that "[a] person may not purchase
drugs containing more than:
(1) three and six-tenths (3.6) grams of ephedrine or pseudoephedrine, or both,
on one (1) day;
(2) seven and two-tenths (7.2) grams of ephedrine or pseudoephedrine, or both,
in a thirty (30) day period; or
(3) sixty-one and two-tenths (61.2) grams of ephedrine or pseudoephedrine,
or both, in a three hundred sixty-five (365) day period.
In order to enforce these limitations, Indiana Code section 35-48-4-14.7(d) sets
forth certain requirements that a retailer must meet if the retailer sells
ephedrine or pseudoephedrine. One of these requirements is that the retailer
must maintain records of all sales of a nonprescription product containing
ephedrine or pseudoephedrine. These records shall include: (1) the name and
address of each purchaser; (2) the type of identification presented; (3) the
governmental entity that issued the identification; (4) the identification
number; and (5) the ephedrine or pseudoephedrine product purchased, including
the number of grams the product contains and the date and time of the
transaction. Ind. Code § 35-48-4-14.7(d)(4).
In addition to maintaining these records, Indiana Code section 35-48-4-14.7(d)(5) requires that before a retailer may complete the sale of an over-the-counter product containing pseudoephedrine or ephedrine, the retailer shall
electronically submit the required information to the [NPLEx] administered by the National Association of Drug Diversion Investigators (NADDI), if the NPLEx system is available to pharmacies or NPLEx retailers in the state without a charge for accessing the system. The [retailer] may not complete the sale if the system generates a stop sale alert.
If a retailer selling an over-the-counter product containing ephedrine or pseudoephedrine experiences mechanical or electronic failure of the electronic sales tracking system and is unable to comply with the electronic sales tracking requirement, the retailer shall maintain a written log or an alternative electronic recordkeeping mechanism until the retailer is able to comply with the electronic sales tracking requirement. Ind. Code § 35-48-4-14.7(d)(6). Indiana Code section 35-48-4-14.7(j) imposes criminal liability for a knowing or intentional failure to comply with the requirements of Indiana Code section 35-48-4-14.7(d).
Indiana Code section 35-48-4-14.7(l) sets forth requirements that apply to the NPLEx reports. This section provides that (1) the information contained in the NPLEx report may be shared only with law enforcement officials; (2) a law enforcement official must be permitted to access Indiana transaction information maintained in the NPLEx for investigative purposes; (3) NADDI may not modify sales transaction data that is shared with law enforcement officials; and (4) at least one time per week, NADDI shall forward Indiana data contained in the NPLEx, ...