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Montgomery v. State

Court of Appeals of Indiana

December 11, 2014

ROBIN EUGENE MONTGOMERY, Appellant-Defendant,
v.
STATE OF INDIANA, Appellee-Plaintiff

Page 769

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.

OPINION

Page 770

BRADFORD, Judge.

CASE SUMMARY

Between June 25, 2013 and August 24, 2013, Appellant-Defendant Robin Eugene

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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 unit.

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

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officer's 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.

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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).

Id.

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 Pseudoephedrine

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.[1]

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 ยง 35-48-4-14.7(d)(4).

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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, ...


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