Robin Eugene Montgomery v. State of Indiana

FOR PUBLICATION Dec 11 2014, 9:28 am

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MATTHEW J. McGOVERN GREGORY F. ZOELLER

Anderson, Indiana Attorney General of Indiana

BRIAN REITZ

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

ROBIN EUGENE MONTGOMERY, )

)

Appellant-Defendant, )

)

vs. ) No. 82A01-1404-CR-163

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE VANDERBURGH SUPERIOR COURT

The Honorable Robert J. Pigman, Judge

Cause No. 82D02-1308-FA-1138

December 11, 2014

OPINION - FOR PUBLICATION

BRADFORD, Judge

CASE SUMMARY

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

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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

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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

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

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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

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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).

Id.

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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 34-48-4-14.7(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 § 35-48-4-14.7(d)(4).

1

These limits apply to the total amount of base ephedrine and pseudoephedrine contained in the

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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, including data concerning a transaction that could not be

products and not to the overall weight of the products.

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completed due to the issuance of a stop sale alert, to the State Police Department.

2. Analysis

Again, Montgomery argues that the admission of the NPLEx records violated his

rights under the Confrontation Clause. The Sixth Amendment to the United States

Constitution, made applicable to the States via the Fourteenth Amendment, states: “In all

criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses

against him.” U.S. CONST. amend. VI. The Confrontation Clause prohibits the admission of

an out-of-court statement if it is testimonial, the declarant is unavailable, and the defendant

had no prior opportunity to cross-examine the witness. King v. State, 985 N.E.2d 755, 758

(Ind. Ct. App. 2013) (citing Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369

(2004)), trans. denied. Although the Crawford court intentionally refrained from defining

which evidence is testimonial, it listed three “formulations of this core class of ‘testimonial’

statements”: (1) “ex parte in-court testimony or its functional equivalent—that is, material

such as affidavits, custodial examinations, prior testimony that the defendant was unable to

cross-examine, or similar pretrial statements that declarants would reasonably expect to be

used prosecutorially;” (2) “extrajudicial statements ... contained in formalized testimonial

materials, such as affidavits, depositions, prior testimony, or confessions;” and (3)

“statements that were made under circumstances which would lead an objective witness

reasonably to believe that the statement would be available for use at a later trial.” Crawford,

541 U.S. at 50-52, 124 S.Ct. at 1364.

“Business and public records are generally admissible absent confrontation not

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because they qualify under an exception to the hearsay rules, but because—having been

created for the administration of an entity’s affairs and not for the purpose of establishing or

proving some fact at trial—they are not testimonial.” Melendez-Diaz v. Massachusetts, 557

U.S. 305, 324, 129 S. Ct. 2527, 2539-40 (2009). Montgomery acknowledges the holding in

Melendez–Diaz but argues that the NPLEx reports should not qualify as business records

because the NPLEx records were not used for any legitimate business purpose. We disagree.

We have previously held that NPLEx records qualified as business records under

Evidence Rule 803(6). See Embrey v. State, 989 N.E.2d 1260, 1267 (Ind. Ct. App. 2013).

Further, although NPLEx records may occasionally be used to establish or prove some fact at

trial, that is not the main purpose of the NPLEx records. Again, the main purpose of the

NPLEx records is to enable the NADDI to track and regulate the sale of non-prescription

ephedrine and pseudoephedrine. Accordingly, the main purpose of the NPLEx records is not

to establish or prove some fact at trial. As such, in light of the United States Supreme

Court’s holding in Melendez-Diaz, we conclude that the records are not testimonial and that

the admission of NPLEx records at trial did not violate Montgomery’s rights under the

Confrontation Clause. Montgomery’s claim to the contrary therefore fails.2

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This conclusion is consistent with opinions issued by the United States Court of Appeals in the Fifth

and Eighth Circuits. See U.S. v. Towns, 718 F.3d 404, 411 (5th Cir. 2013) (recognizing that states have a clear

interest in businesses creating NPLEx logs that extends beyond the evidentiary value of the logs and

concluding that because the purchase logs were not prepared specifically and solely for use at trial, they are not

testimonial and do not violate the Confrontation Clause); U.S. v. Mashek, 606 F.3d 922, 930 (8th Cir. 2010)

(providing that the admission of the pseudoephedrine logs did not violate the defendants constitutional rights

because the pseudoephedrine logs were kept in the ordinary course of business pursuant to Iowa law and are

business records and business records are non-testimonial statements to which the Confrontation Clause does

not apply).

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C. Evidence Relating to the Identification of Precursors

Indiana Code section 35-48-4-14.5(a) lists several chemical agents as precursors for

the manufacture of controlled substances such as methamphetamine. At trial, the State

introduced evidence that Montgomery possessed three of the precursors listed in Indiana

Code section 35-48-4-15.5(a), namely sulfuric acid, lye,3 and ammonium nitrate, at the time

of his arrest as evidence of his intent to manufacture and deal in methamphetamine.

Montgomery challenges the admission of evidence relating to the identification of these

precursors, claiming that the State failed to provide an adequate foundation for admission of

the evidence. Montgomery also claims that some of the challenged evidence constituted

inadmissible hearsay. For its part, the State argues that the trial court did not abuse its

discretion by admitting the evidence relating to the identification of the precursors. Again,

we agree with the State.

1. Overview of Relevant Authority

i. Laying a Proper Foundation

“The determination of whether a witness is qualified to testify as an expert is within

the sound discretion of the trial court, whose ruling will not be disturbed absent an abuse of

discretion.” Clark v. State, 6 N.E.3d 992, 998 (Ind. Ct. App. 2014) (citing Copeland v. State,

430 N.E.2d 393, 396 (Ind. Ct. App. 1982)).

In order to qualify as an expert, the subject matter must be related to some

scientific field beyond the knowledge of the average lay person, and the

witness must have sufficient skill, knowledge or experience in the field to

3

Lye is also referred to as sodium hydroxide.

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make it appear that the witness’s opinion or inference will aid the trier of fact.

No precise quantum of knowledge is required if the witness shows a sufficient

acquaintance with the subject. Fox v. State (1987), Ind., 506 N.E.2d 1090.

Wissman v. State, 540 N.E.2d 1209, 1212-13 (Ind. 1989). “The qualifications of an expert

may be established by practical experience as well as by formal training.” Clark, 6 N.E.3d at

998 (citing Copeland, 430 N.E.2d at 396).

The Indiana Supreme Court has held that an opinion of someone sufficiently

experienced with a substance or a drug may establish its identity, as may other circumstantial

evidence. Vasquez v. State, 741 N.E.2d 1214, 1216 (Ind. 2001). “Although chemical

analysis is one way, and perhaps the best way, to establish the identity of a compound,

persons experienced in the area may be able to identify [the compound]. This is true even if

every citizen may not be up to that task.” Id. at 1216-17. As such, the testimony of a police

officer who, by their training, knowledge, and experience, is sufficiently experienced with a

compound may establish its identity. See Clark, 6 N.E.3d at 999; Boggs v. State, 928 N.E.2d

855, 866 (Ind. Ct. App. 2010).

ii. Hearsay

“Hearsay is an out-of-court statement made by someone other than the declarant and

offered to prove the truth of the matter asserted.” Reemer v. State, 835 N.E.2d 1005, 1007

(Ind. 2005). In Reemer, the Indiana Supreme Court concluded that labels of commercially

marketed drugs are properly admitted into evidence under the exception provided by

Evidence Rule 803(17) to prove the composition of the drug. Id. at 1009. In reaching this

conclusion, the Indiana Supreme Court noted the following:

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As the Iowa Supreme Court observed, “the contemporary nature of

pharmaceutical practice exemplifies the inherent trustworthiness” of the labels

on cold medication. [State v. Heuser, 661 N.W.2d 157, 164 (Iowa 2003)].

Indeed, physicians, patients and the general public routinely rely on regulated

manufacturing practices and mandatory labeling to assure that pharmaceuticals

are as they are represented to be.

Id. We believe the same is true for products containing poisonous chemicals. Like

pharmaceutical labels, physicians, patients, and the general public routinely rely on labeling

on products containing poisonous chemicals for information relating to what poisonous

chemicals are contained therein in the case of possible exposure. As such, we conclude that

the rationale set forth in Reemer applies equally to packaging for items containing poisonous

chemicals.

2. Analysis

i. Sulfuric Acid

Montgomery argued that the trial court erroneously admitted the label of a bottle of

drain cleaner which indicated that the drain cleaner contained sulfuric acid into evidence

because the State failed to lay a proper foundation for the contents of the bottle. Specifically,

Montgomery argued that the label on the bottle which indicated that the bottle contained

sulfuric acid amounted to inadmissible hearsay.

During trial, Detective McDonald testified that he recovered a quart container of

sulfuric acid-based drain cleaner during his search of Montgomery’s storage unit. Detective

McDonald did not provide any specific testimony relating to the odor or unique

characteristics of sulfuric acid but rather relied upon the label of the bottle in question as the

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basis of his testimony that he recovered sulfuric acid from Montgomery’s storage unit. In

addition to Detective McDonald’s testimony, the State presented pictures of the label of the

bottle as evidence at trial. The label indicated that the product was called “Kleen-Out

Sulfuric Acid Drain Opener.” State’s Exs. 12-13. In addition to having the words “sulfuric

acid” in the name of the product, the label for the product also explicitly stated the following:

DANGER · POISON

CAUSE SEVERE BURNS

HARMFUL OR FATAL IF SWALLOWED

CONTAINS INHIBITED SULFURIC ACID

State’s Ex. 12 (emphasis added). The trial court determined that the label laid a sufficient

foundation to prove that the bottle contained sulfuric acid. The trial court acted within its

discretion in this regard.

Further, we disagree with Montgomery’s contention that Reemer adds an additional

foundational requirement for admission of a label, i.e., that the product be unopened so as to

ensure that the substance within has not been altered. In this vein, we note that any conflict

as to the reliability of the evidence is to be resolved by the trier-of-fact. See Burp v. State,

612 N.E.2d 169, 172 (Ind. Ct. App. 1993) (citing Hopkins v. State, 579 N.E.2d 1297, 1304

(Ind. 1991)). We will uphold a finding of the trier-of-fact as long as the favorable evidence

adequately supports it. Burp, 612 N.E.2d at 172 (citing Hopkins, 579 N.E.2d at 1304).

Montgomery did not provide any evidence suggesting that the contents of the bottle of drain

cleaner had been altered or was not the sulfuric acid-based drain cleaner indicated on the

label of the bottle. As such, we will not disturb the jury’s apparent determination that the

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bottle contained sulfuric acid-based drain cleaner.

ii. Lye

Montgomery also argued that the trial court erroneously admitted Detective

McDonald’s testimony relating to an unlabeled white bottle which Detective McDonald

indicated was lye. Specifically, Montgomery argued that the State failed to lay a proper

foundation to prove that Detective McDonald was qualified to testify about the substance

found in the unlabeled white bottle.

Again, Detective McDonald was a member of the Joint Drug Task Force within the

Methamphetamine Suppression Unit. Due to the high number of methamphetamine labs

discovered in Vanderburgh County, every detective assigned to the Joint Drug Task Force

“has to go through what’s called a State and Local Clandestine Lab School,” a five-day

school at the DEA Academy in Quantico, Virginia. Tr. p. 248. “The primary focus of …

that school is methamphetamine labs and [participants] learn about the different types of labs,

the chemicals used in those labs, and [participants] also manufacture methamphetamine as

part of the conclusion of that school.” Tr. p. 249. In addition to the clandestine lab school,

Detective McDonald also attended specialized methamphetamine investigation courses,

undercover and surveillance schools, and a one-week class at the DEA Academy “called a

Site Safety Officer.” Tr. p. 249. The “Site Safety Officer” class “deals specifically with a

supervising role at clandestine labs where you direct other detectives or offices to make sure

that they adhere to safety guidelines. It also enables you to give the annual refresher training

on clandestine labs to lab certified officers and detectives.” Tr. p. 249. Detective McDonald

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has also received additional training on the detection and identification of ingredients used to

manufacture methamphetamine through the Indiana Law Enforcement Academy. Whether

through training or his experience as a police detective, Detective McDonald indicated that

he had encountered manufacturing ingredients, i.e., precursors, “probably well over 500

times.” Tr. p. 251.

During trial, Detective McDonald testified that he recovered “an unlabeled white

bottle that contained a white powder substance [which] in [Detective McDonald’s]

experience had the appearance of lye” during his search of Montgomery’s storage unit. Tr.

pp. 285-86. Specifically, Detective McDonald testified that when he opened the unlabeled

white bottle he “found it contained a material [which] in [his] experience and training [was]

consistent with lye.” Tr. p. 292. Further, during a hearing outside of the presence of the jury,

Detective McDonald testified that he was “certain [the substance] was lye based on its

appearance.” Tr. p. 273.

Detective McDonald unequivocally identified the contents of the unlabeled white

bottle as lye. Upon review, we conclude that Detective McDonald, through his training and

knowledge was sufficiently experienced with the compound of lye, and therefore could

establish its identity. See generally Clark, 6 N.E.3d at 999; Boggs, 928 N.E.2d at 866. As

such, we further conclude that the trial court did not abuse its discretion in admitting

Detective McDonald’s identification of the substance as the State presented a proper

foundation for Detective McDonald’s testimony.

iii. Ammonium Nitrate

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Montgomery also argued that the trial court erroneously admitted Detective

McDonald’s testimony relating to ammonium nitrate pellets which were found in open cold

packs. Specifically, Montgomery argued that the State failed to lay a proper foundation to

prove that Detective McDonald was qualified to testify about the substance found in the cold

packs.

The State laid a foundation for Detective McDonald’s identification of the ammonium

nitrate pellets during questioning of Detective McDonald that was conducted outside of the

presence of the jury. This questioning went as follows:

Q Okay. With regard to the cold packs that had been cut open. Did those

have anything in them?

A Yes.

Q What did they have in them?

A They appeared to have ammonium nitrate pellets through my

experience.

Q Okay. Now you’ve seen those ammonium nitrate pellets before, is that

correct?

A Yes from that same brand of cold pack.

Q Okay. You’d be able to recognize them whenever you saw them again?

A Yes.

****

Q You didn’t do any testing of the white granules that you believed was

ammonium nitrate?

A Correct.

Q And they differ in some respect to other powdered substance or granular

substances? You can just automatically tell that’s what it is?

A I think that’s a very broad question. Based on what I observed in the

container, in my experience using that same product in manufacturing

methamphetamine, that was the exact same thing that I pulled out of it.

****

Q And the same thing with regard to the granules. Could have been

something else that was granulated but based upon your training, based upon

what you anticipated you were going to see, you believed it was ammonium

nitrate granules?

A Yes. Based on what I removed from that same package before that had

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the exact same appearance.

Tr. pp. 271-273.

During trial, Detective McDonald testified that he recovered “two cut open instant

cold packs containing ammonium nitrate” during his search of Montgomery’s storage unit.

Tr. p. 286. The cold packs had been re-secured with a rubber band after being cut open.

Detective McDonald opened the cold packs and discovered that they contained ammonium

nitrate. Detective McDonald testified that he was familiar with the particular brand of cold

pack, stating: “Yes. I’ve cut open these same cold packs before, [they’re] Walgreen’s Instant

Cold Packs, and the material inside it, in my experience, is the exact same material that I

removed from them previously.” Tr. p. 291.

Detective McDonald unequivocally identified the contents of the cold packs as

ammonium nitrate pellets. Upon review, we conclude that Detective McDonald, through his

training and knowledge, was sufficiently experienced with the ingredients used in the

particular brand of cold pack recovered from Montgomery’s storage unit, and therefore could

establish the identity of the substance found inside the cold packs. See generally Clark, 6

N.E.3d at 999; Boggs, 928 N.E.2d at 866. As such, we further conclude that the trial court

did not abuse its discretion in admitting Detective McDonald’s identification of the substance

as the State presented a proper foundation for Detective McDonald’s testimony.

II. Sufficiency of the Evidence

Montgomery also contends that the evidence is insufficient to sustain his conviction

for Class B felony dealing in methamphetamine.

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A. Standard of Review

When reviewing the sufficiency of the evidence to support a conviction,

appellate courts must consider only the probative evidence and reasonable

inferences supporting the verdict. It is the fact-finder’s role, not that of

appellate courts, to assess witness credibility and weigh the evidence to

determine whether it is sufficient to support a conviction. To preserve this

structure, when appellate courts are confronted with conflicting evidence, they

must consider it most favorably to the trial court’s ruling. Appellate courts

affirm the conviction unless no reasonable fact-finder could find the elements

of the crime proven beyond a reasonable doubt. It is therefore not necessary

that the evidence overcome every reasonable hypothesis of innocence. The

evidence is sufficient if an inference may reasonably be drawn from it to

support the verdict.

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and quotations

omitted). “In essence, we assess only whether the verdict could be reached based on

reasonable inferences that may be drawn from the evidence presented.” Baker v. State, 968

N.E.2d 227, 229 (Ind. 2012) (emphasis in original). Upon review, appellate courts do not

reweigh the evidence or assess the credibility of the witnesses. Stewart v. State, 768 N.E.2d

433, 435 (Ind. 2002).

B. Analysis

The offense of dealing in methamphetamine is governed by Indiana Code section 35-

48-4-1.1, which on the date in question read as follows:

(a) A person who:

(1) knowingly or intentionally:

(A) manufactures;

(B) finances the manufacture of;

(C) delivers; or

(D) finances the delivery of;

methamphetamine, pure or adulterated; or

(2) possesses, with intent to:

(A) manufacture;

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(B) finance the manufacture of;

(C) deliver; or

(D) finance the delivery of;

methamphetamine, pure or adulterated;

commits dealing in methamphetamine, a Class B felony.

Indiana Code section 35-48-1-18(1)(a) defines the term “manufacture” as

the production, preparation, propagation, compounding, conversion, or

processing of a controlled substance, either directly or indirectly by extraction

from substances of natural origin, independently by means of chemical

synthesis, or by a combination of extraction and chemical synthesis, and

includes any packaging or repackaging of the substance or labeling or

relabeling of its container.

Indiana Code section 35-48-1-18(1)(a) “does not state that the process must be completed or

that there must actually be a final product before it applies.” Bush v. State, 772 N.E.2d 1020,

1023 (Ind. Ct. App. 2002). A trier-of-fact may rely on circumstantial evidence in

determining that an individual is manufacturing methamphetamine. Id. (providing that

“[c]ommon sense dictates that we reach this conclusion to avoid an absurd result.… [A]

reasonable juror in this case could certainly conclude that Bush manufactured

methamphetamine based upon the circumstantial evidence of its production. In fact, there

was no other reasonable explanation for the evidence found at the house other than that he

was in the process of making methamphetamine.”).

In the instant matter, the evidence is sufficient to prove that Montgomery

manufactured methamphetamine. Detective McDonald described the methamphetamine

manufacturing process at trial. He opined that it appeared that Montgomery was utilizing the

“one pot method” for manufacturing methamphetamine. In this method, a person would

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typically use a bottle, such as a plastic two liter bottle or twenty ounce plastic soda bottle,

and, instead of using anhydrous ammonia, would use lye and an instant cold pack.

You cut open the instant cold pack. Inside there’s little white beads that are

ammonium nitrate and there’s also a water pack. The water pack is typically

discarded but when you combine the ammonium nitrate beads with lye in that

two liter bottle it creates a very strong ammonia gas.… You would combine

that with ground up pseudoephedrine-based cold medicine, some type of

organic solvent. Most typically we see Coleman camp fuel because it has a

very low odor.… You can also use ether which has a very strong odor. You

can use acetone, again, fingernail polish remover. It has a very strong odor.…

A little bit of water and the contents of a stripped lithium battery. Those things

are all combined in that two liter bottle. Put the cap on, shake it up. You may

have to add some more lye, some more ammonium nitrate once the reaction

goes and typically in about 45 minutes to an hour that pseudoephedrine is

dissolved and converted to methamphetamine oil and that’s held in solution in

that solvent, whatever organic solvent you used.… It’s a liquid. The

methamphetamine at that point is a liquid inside that solvent. So the person

would want to pull that solvent out of the two liter bottle typically using a

turkey baster or syringe, anything will work like that. And then all of the

material that’s left in that reaction vessel, that two liter bottle is just trash. All

you want out of that is the solvent that has the meth oil in it. Typically a

person will put that in another vessel … [m]ost typically … [a] [t]wenty ounce

soda bottle. A person would combine Liquid Fire or any sulfuric acid based

drain cleaner with salt and when those two are combined in the bottle it

produces a whitish colored gas that is highly acidic.… A hole is cut in the top

of one of those soda bottles, the 20 ounce for the HCL generator, and airline

tubing is run through that cap. Aquarium hose is typically what you see and

then as that salt and sulfuric acid are combined in the bottle it produces

pressure. The reaction causes that gas to travel through the tube and the person

would hold that and the tube would go over the methamphetamine oil … and

the combination makes solid meth come out of that solvent. So then what they

would do is get [a] Mason jar and put a coffee filter in it and pour that solvent

with the solid meth in it through the coffee filter and what’s left behind in the

coffee filter is a white or brownish colored residue and that’s the actually

finished methamphetamine and instead of methamphetamine oil, that’s

methamphetamine salts and once it’s dried out on a candle warmer, a hot plate,

or just left to air dry, once it’s completely dry then that’s methamphetamine in

it’s usable sustainable form and it’s water soluble and ready to be smoked,

injected, snorted however a person would want to use it.

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Tr. pp. 253-56.

With respect to Montgomery, the State presented evidence that over a span of two

months, Montgomery purchased a box of pseudoephedrine every ten days. In addition, at the

time of Montgomery’s arrest, Montgomery was in possession of various items used in the

manufacture of methamphetamine, 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. With

regard to the pipe cutter, Detective McDonald testified that the instrument is generally used

to cut open lithium batteries.

Further, it is of note that Montgomery fled the scene upon being approached by law

enforcement. The Indiana Supreme Court has previously held that “[e]vidence of flight may

be considered as circumstantial evidence of consciousness of guilt.” Brown v. State, 563

N.E.2d 103, 107 (Ind. 1990). The trier-of-fact could therefore consider Montgomery’s flight

as circumstantial evidence of a consciousness of guilt by Montgomery.

Again, the manufacturing process need not be completed before one can be found to

have manufactured methamphetamine. Bush, 772 N.E.2d at 1023. In fact, this court has

previously held that the mere act of crushing up pills “in order to separate the ephedrine from

the pill binders” is sufficient to prove that the manufacturing process has begun. See Dawson

v. State, 786 N.E.2d 742, 748 (Ind. Ct. App. 2003) (providing that “once an individual

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crushes up pills in order to separate the ephedrine from the pill binders, the manufacturing

process has begun” and evidence of such is sufficient to support a conviction for dealing in

methamphetamine by knowingly manufacturing it). In the instant matter, the smoking HCL

generator and the open cold packs suggest that Montgomery had begun the process of

manufacturing methamphetamine. In light of our prior conclusions in Bush and Dawson, we

conclude that the evidence that Montgomery had been the manufacturing process coupled

with the evidence recovered from Montgomery’s storage unit and the evidence of

Montgomery’s attempted flight, is sufficient to prove that Montgomery committed the

offense of dealing in methamphetamine by knowingly manufacturing it.

Furthermore, we are unpersuaded by Montgomery’s claim that the State relied on pure

speculation to support his conviction for manufacturing methamphetamine. Montgomery

claims that “[w]ithout a ‘reaction vessel,’ complete methamphetamine lab, or the necessary

ingredients for producing methamphetamine, this Court should conclude that the State failed

to prove beyond a reasonable doubt that Montgomery was manufacturing

methamphetamine.” Appellant’s Br. pp. 25-26. We disagree. Again, the State presented

evidence at trial that Montgomery repeatedly purchased pseudoephedrine and was in

possession of numerous items used in the manufacture of methamphetamine at the time of his

arrest. We conclude that the above-stated evidence was sufficient to prove that Montgomery

was manufacturing methamphetamine. Montgomery’s claim to the contrary effectively

amounts to an invitation for this court to reweigh the evidence, which we will not do. See

Stewart v. State, 768 N.E.2d at 435.

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CONCLUSION

Having concluded that the trial court did not abuse its discretion in admitting the

challenged evidence at trial and that the evidence is sufficient to sustain Montgomery’s

conviction for Class B felony dealing in methamphetamine, we affirm the judgment of the

trial court.

The judgment of the trial court is affirmed.

NAJAM, J., and MATHIAS, J., concur.

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