State of Iowa v. Kris Warick ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 13-1396
Filed July 16, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
KRIS WARICK,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Nancy S. Tabor,
Judge.
Appeal from a conviction of conspiracy to manufacture methamphetamine.
AFFIRMED.
Jack E. Dusthimer, Davenport, for appellant.
Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney
General, Michael J. Walton, County Attorney, and Patrick McElyea, Assistant
County Attorney, for appellee.
Considered by Danilson, C.J., and Potterfield and McDonald, JJ. Tabor,
J., takes no part.
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MCDONALD, J.
Kris Warick appeals his conviction of conspiracy to manufacture a
controlled substance, methamphetamine, in violation of Iowa Code section
124.401(1)(c)(6) (2011). Warick contends the district court erred in admitting into
evidence over his objection a pseudoephedrine sales transaction report. He
contends the report lacked foundation, it constituted inadmissible hearsay, and
its admission violated his rights under the Confrontation Clause. We review the
district court’s decision regarding foundation for an abuse of discretion. See
State v. Musser, 721 N.W.2d 734, 750 (Iowa 2006). We review rulings on
hearsay objections for correction of errors at law. See State v. Jordan, 663
N.W.2d 877, 879 (Iowa 2003). Finally, we review constitutional claims de novo.
See State v. Newell, 710 N.W.2d 6, 23 (Iowa 2006).
Federal law and state law require that retailers obtain, among other things,
identification information and the signature of persons purchasing
pseudoephedrine, which is the active ingredient used in the manufacture of
methamphetamine. See 21 U.S.C. § 830; Iowa Code § 124.212A (requiring
pharmacists to prepare electronic log to record transactions); Iowa Code
§ 124.212B (requiring creation of real-time electronic repository to control and
monitor sales); Iowa Admin. Code r. 657-100.1 (establishing the
pseudoephedrine tracking system). The information is maintained in an
electronic repository accessible to certain identified persons, including law
enforcement officers. The electronic repository used by the State of Iowa is the
National Precursor Log Exchange (hereinafter “NPLEx”). At issue in this case is
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a report prepared from information contained within the NPLEx electronic
repository identifying thirteen sales transactions in which someone identifying
themselves as Warick purchased pseudoephedrine from pharmacies and grocery
stores.
We conclude Warrick’s challenge to the foundation laid for the exhibit is
without merit. “Whether the offering party has established a proper foundation is
a matter committed to the sound discretion of the trial court; reversal is warranted
only when there is a clear abuse of discretion.” Musser, 721 N.W.2d at 750.
Here, the foundation for the exhibit was established through the testimony of
three witnesses and a business records affidavit. A pharmacist testified
regarding the process and procedure by which a covered retailer obtained and
recorded identification information and a signature at the point of sale and the
process and procedure by which that information was placed into the electronic
repository. A special agent from the Iowa Department of Public Safety, Division
of Narcotics Enforcement, established NPLEx is the repository used by the State
of Iowa and established the reliability of the data in the repository. The same
agent also testified regarding the quantity of methamphetamine that could have
been produced from the amount of pseudoephedrine shown to be purchased on
the report. One of the investigating officers explained how he accessed the sales
transaction information from the NPLEx repository and prepared the physical
report. Finally, the records custodian for the company responsible for
maintaining the sales transaction information in the electronic repository provided
a business records affidavit. Based on the foregoing, the district court did not
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clearly abuse its discretion in determining there was sufficient foundation to allow
the exhibit. See Embry v. State, 989 N.E.2d 1260, 1265-66 (Ind. Ct. App. 2013)
(finding certification by the pseudoephedrine purchase records custodian
sufficient foundation); see also Burris v. State, No. 06-13-00039-CR, 2014 WL
576209, at *6 (Tex. Ct. App. Feb. 12, 2014) (finding an affidavit from
pseudoephedrine purchase records custodian sufficient foundation).
Relatedly, we conclude the report at issue was not excludable as hearsay.
“Records of regularly conducted activity” are not excluded by the hearsay rule.
See Iowa R. Evid. 5.803(6). For evidence to be admissible under the business
records exception to the hearsay rule, the State must show: (1) it is a business
record; (2) it was made at or near the time of an act; (3) it was made by, or from
information transmitted by, a person with knowledge; (4) it was kept in the course
of a regularly conducted business activity; and (5) it was the regular practice of
that business activity to make such a business record. See Iowa R. Evid.
5.803(6); State v. Reynolds, 746 N.W.2d 837, 841 (Iowa 2008). Business
records include any “report, record, or data compilation, in any form.” Iowa R.
Evid. 5.803(6). As discussed above, the records custodian’s affidavit, the
pharmacist’s testimony, the special agent’s testimony, and the police officer’s
testimony established the records of the sale transactions are recorded at the
point of sale, are made by and transmitted by persons with knowledge, and are
kept in the regular course of business. Further, it is the regular practice of
pharmacies and covered retailers to record such transactions. Indeed, as
discussed above, federal law and state law require covered sales transaction be
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recorded. We conclude the district court did not err in determining the
pseudoephedrine purchase records fell within the business records exception to
the hearsay rule.
We next address Warick’s Confrontation Clause claim. A defendant has
the right “to be confronted with the witnesses against him.” U.S. Const. amend.
VI; Iowa Const. art. I, § 10. Although Warick cites both the federal and state
constitution, he makes no argument that Iowa’s Constitution should be
interpreted differently than the Federal Constitution. Consequently, we construe
the provisions identically. See State v. Shipley, 757 N.W.2d 228, 234 (Iowa
2008). The Confrontation Clause is intended to protect against the principal evil
of testimonial statements in the absence of the declarant. See Crawford v.
Washington, 541 U.S. 36, 50 (2004). Thus, the first question presented is
whether the statement is testimonial in nature; if the statement is not testimonial
in nature, then the Confrontation Clause is not implicated. See id. In
determining whether evidence is testimonial in nature, the relevant inquiry in this
case is whether the evidence was the product of inquisitory investigation. See
Shipley, 757 N.W.2d at 238; see also State v. Kennedy, 846 N.W.2d 517, 523-25
(Iowa 2014) (confirming certified abstracts of driving records were not
testimonial).
The Iowa Supreme Court recently addressed a similar Confrontation
Clause issue in Kennedy. There, the court held an abstract of the defendant’s
driving record and supporting business records affidavit were not testimonial in
nature and were thus admissible without violating the defendant’s right to
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confrontation. Like an abstract of a driving record, the NPLEx report in this case
is not testimonial. The pharmacy is required to create the records by federal and
state law. The records are created at the time of sale, not in anticipation of
litigation. The record is created by swiping the purchaser’s identification card
and capturing the purchaser’s signature. Thus, the repository contains only
records of transactions and not the statements of the person making the sale.
The records are created prior to criminal investigation and prosecution. The
records would exist even if there were no subsequent criminal prosecution.
Kennedy, 846 N.W.2d at 523; Shipley, 757 N.W.2d at 238. The pharmacists who
create them are completely independent of any subsequent police investigation
and have no vested interest in their creation. Given the foregoing, we agree with
the district court that the NPLEx report at issue was non-testimonial in nature and
that its admission does not violate Warick’s constitutional right of confrontation.
See, e.g., United States v. Towns, 718 F.3d 404, 411 (5th Cir. 2013) (holding
admission of pseudoephedrine purchase logs did not violate Confrontation
Clause), cert. denied, 134 S. Ct. 307 (2013).
AFFIRMED.