Jerry Conn v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED
Mar 17 2016, 6:59 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
and Tax Court
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 ATTORNEYS FOR APPELLEE
Richard Walker Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jerry Conn, March 17, 2016
Appellant-Defendant, Court of Appeals Case No.
48A02-1505-CR-311
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable David A. Happe,
Appellee-Plaintiff. Judge
Trial Court Cause No.
48C04-1406-FB-1058
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Jerry Conn (Conn), appeals his convictions for dealing in
methamphetamine, a Class B felony, Ind. Code § 35-48-4-1.1(a)(1)(A) (2014);
possession of methamphetamine, a Class D felony, I.C. § 35-48-4-6.1(a) (2014);
possession of chemical reagents or precursors with intent to manufacture a
controlled substance, a Class D felony, I.C. § 35-48-4-14.5(e) (2014); and
maintaining a common nuisance, a Class D felony, I.C. § 35-48-4-13(b)(2)
(2014).
[2] We affirm.
ISSUES
[3] Conn raises two issues on appeal, which we restate as follows:
(1) Whether the trial court abused its discretion when it admitted certain
evidence found pursuant to Michelle Copeland’s (Copeland) consent to search;
and
(2) Whether the admission of the National Precursor Log Exchange
(NPLEx) records violated Conn’s right to confrontation.
FACTS AND PROCEDURAL HISTORY
[4] Copeland met Conn in September 2013. Copeland moved into Conn’s
residence in Anderson, Indiana later that year. Copeland did not have custody
of her fifteen-year-old son, E.C., who lived with his father in Ohio, but E.C.
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came to stay with Copeland at her parent’s house shortly before she moved in
with Conn and later accompanied Copeland when she moved in with Conn.
Copeland began using methamphetamine with Conn, who manufactured it in
his basement. Conn taught her how to make it and she started gathering
methamphetamine ingredients, including pseudoephedrine. Although,
Copeland and Conn made methamphetamine together, “[Conn] was the boss.”
(Transcript p. 664). E.C. became curious about the “really bad smell” coming
from the basement. (Tr. pp. 769-71). Eventually, Conn started trusting E.C.
and let him into the basement. Conn taught E.C. “how to manufacture
methamphetamine” as well. (Tr. p. 771). E.C. helped Conn and his mother
make methamphetamine two or three times per week. E.C. started using it and
became addicted.
[5] In May 2014, E.C. returned to Ohio because he “was tired of it all.” (Tr. p.
781). However, he came back to Indiana with his stepmother and her kids to
visit his stepmother’s parents in early June. E.C. called Copeland and Conn,
and they “smoked a little bit of methamphetamine” together. (Tr. pp. 781-82).
E.C. stayed at Conn’s house one night and then walked to his aunt’s house,
who learned that he had been using methamphetamine. E.C.’s aunt informed
his stepmother. After an argument with his stepmother, E.C. ran away. A
deputy sheriff picked E.C. up about three miles from the aunt’s house. E.C.
told the officer that he “had suicidal thoughts,” so the officer took him to a
hospital. (Tr. pp. 785-86). At the hospital, E.C. talked to Tresha Huston
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(Huston) of the Department of Child Services (DCS). He told her that he used
methamphetamine and that Conn and his mother made it in their basement.
[6] On June 10, 2014, Madison County Drug Task Force Detectives Leann
Dwiggins (Detective Dwiggins) and Jason Brizendine (Detective Brizendine)
escorted Huston to Conn’s residence for a welfare check. Expecting a visit from
the police or DCS, Conn had tried to hide the evidence of his manufacturing
operation. When the officers arrived, Conn was in the front yard. Detective
Brizendine told Conn why they were there and asked if he could look around
behind Conn’s house. Conn agreed and “was very cooperative” with Detective
Brizendine. (Tr. pp. 229-30). In Conn’s outdoor grill, the officer found gloves
and two bottles, which the officer recognized as a one-pot lab and an HCL
generator used in methamphetamine manufacturing. Detective Brizendine then
advised Conn of his rights, and Conn refused to consent to a further search.
[7] While Detective Brizendine was talking to Conn, Detective Dwiggins and
Huston met Copeland at the front door. They explained why they were there,
and Huston asked Copeland if it was okay to talk to her inside. Copeland let
them in and “was cooperative” with them. (Tr. pp. 119-21). During Huston’s
interview, Copeland did not admit to E.C.’s allegations. When Huston finished
the interview, Detective Dwiggins asked if she could search the basement, and
Copeland agreed. In the basement, Detective Dwiggins discovered stripped
lithium batteries and casings and other items, such as sulfuric acid, lye, a glass
jar, vinyl tubing, hemostat scissors, and empty prescription bottles used in
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methamphetamine manufacturing. Then, Detective Dwiggins advised
Copeland of her rights.
[8] The officers obtained a warrant to search Conn’s property, including the four
vehicles sitting on his property. In the bedroom, they found a pill bottle that
contained rubber gloves, a cellophane wrapper, and two receipts for
“ingredients for methamphetamine and/or tools of the trade.” (Tr. p. 418). In
the kitchen, the officers found empty twenty-ounce plastic bottles, which are
“use[d] to make the [one-pot] vessels and also the HCL generators,” and
Morton’s Ice Cream Salt, which is used “to make an HCL generator.” (Tr. pp.
423-27). In the garage, the officers found a pill bottle containing a plastic
baggie of methamphetamine. In a garbage can in the driveway, the officers
found empty pseudoephedrine boxes and “a light bulb … that can commonly be
used as paraphernalia for smoking methamphetamine.” (Tr. p. 564).
[9] An Information was filed on June 11, 2014, which the State amended on
January 30 and February 9, 2015. The State ultimately charged Conn with
Count I, dealing in methamphetamine, a Class B felony; Count II, possession
of methamphetamine, a Class D felony; Count III, possession of chemical
reagents or precursors with intent to manufacture a controlled substance, a
Class D felony; and Count IV, maintaining a common nuisance, a Class D
felony. On February 9, 2015, Conn filed a motion to suppress the evidence
found on his property. On February 12, 2015, the trial court held a suppression
hearing and, on April 13, 2015, denied Conn’s motion. Following a three-day
jury trial, Conn was found guilty as charged on April 23, 2015. On April 27,
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2015, the trial court sentenced Conn to an aggregate sentence of seventeen
years, with fifteen years executed at the Department of Correction and two
years suspended to probation.
[10] Conn now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Consent to Search
[11] Conn argues that the trial court erroneously denied his motion to suppress the
evidence found pursuant to a warrantless entry into his residence. Because
Conn appeals after a completed trial, we review the trial court’s ruling for abuse
of discretion. Reinhart v. State, 930 N.E.2d 42, 45 (Ind. Ct. App. 2010). Id. In
our review, we do not reweigh the evidence, and we consider conflicting
evidence most favorable to the trial court’s ruling. Id. We also defer to the trial
court’s factual determinations unless clearly erroneous. Id. However, we
consider afresh any legal question of the constitutionality of a search or
seizure. Id.
[12] Conn specifically claims that Copeland should have received the Pirtle warning
because she was in custody when she consented to the search of their house.
See Pirtle v. State, 323 N.E.2d 634 (Ind. 1975). Generally, a search warrant is a
prerequisite to a constitutionally proper search and seizure. Primus v. State, 813
N.E.2d 370, 374 (Ind. Ct. App. 2004). When a search is conducted without a
warrant, the State has the burden of proving that an exception to the warrant
requirement existed at the time of the search. Id. Warrantless searches and
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seizures inside the home are presumptively unreasonable. Id. However, one
well-recognized exception to the warrant requirement is a voluntary and
knowing consent to search. Id. The theory underlying the consent exception is
that, when an individual gives the State permission to search either his person
or property, the governmental intrusion is presumably reasonable. Id.
Furthermore, in Indiana, a person held in police custody must be informed of
the right to consult with counsel about the possibility of consenting to a search
before a valid consent can be given. Jones v. State, 655 N.E.2d 49, 54 (Ind.
1995), reh’g denied. Whether consent to a search was given voluntarily is a
question of fact to be determined from the totality of all the circumstances.
State v. Cunningham, 26 N.E.3d 21, 25 (Ind. 2015) (internal quotation marks and
citations omitted). We consider conflicting evidence most favorably to the trial
court’s ruling, as well as undisputed evidence favorable to the defendant. Id. It
is the State’s burden to prove that consent to a search was in fact voluntarily
given, and not the result of duress or coercion, express or implied. Id.
[13] The State contends that Copeland was not in custody when she gave her
consent to search and therefore the officers were not required to administer the
Pirtle warning. We agree with the State. Custody is determined by an objective
test: whether a reasonable person under the same circumstances would have
believed that he was under arrest or not free to resist entreaties of the police.
West v. State, 755 N.E.2d 173, 178-79 (Ind. 2001). Relevant circumstances
include:
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whether the defendant is read his Miranda rights or handcuffed or
restrained in any way, and the manner in which the defendant is
interrogated, whether a person freely and voluntarily
accompanies police officers, at what point the defendant is
arrested for the crime under investigation, the length of the
detention, and the police officer’s perception as to the defendant’s
freedom to leave at any time.
Id. at 179 (internal citations omitted).
[14] Here, our review of the record reveals that Copeland consented to a search
twice, first when she let Huston and the police officers inside the residence, and
then when she allowed Detective Dwiggins to look in her basement. Copeland
testified that she and Conn knew DCS and the police were coming, so Conn
tried to hide the evidence of methamphetamine manufacturing. When
Copeland answered her door, the officers and Huston explained why they were
there, and Copeland said they could talk inside. Huston testified that if
Copeland had told her she could not come inside, she would have left. The
police officers did not handcuff Copeland or restrain Copeland’s movements
otherwise. Huston interviewed Copeland on her couch. Huston testified that
she was not “able to substantiate any of the allegations [of the
methamphetamine manufacturing in their house] that were made” during her
interview with Copeland. (Tr. pp. 121-22). During this time, Copeland never
asked Huston or the police officers to leave. When Huston finished her
interview, Detective Dwiggins asked Copeland if she could look in the
basement because “that was where the allegations were made that the
manufacturing [took place].” (Tr. p. 146). Copeland agreed. Detective
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Dwiggins testified that, after she found the evidence in the basement, she
“asked permission to search the house and advised [Copeland] of her Pirtle and
her rights.” (Tr. p. 410). Then, the officers obtained a search warrant and
arrested Conn and Copeland based on the evidence they had found.
[15] Conn cites to State v. Linck, 708 N.E.2d 60 (Ind. Ct. App. 1999), trans. vacated.
In Linck, two police officers were dispatched to Linck’s apartment to investigate
a complaint of illegal drug use. Id. at 61. Outside the apartment, the officers
smelled what they believed to be marijuana burning. Id. Linck allowed the
officers inside and stated he had “just smoked a joint.” Id. One of the officers
asked if there was anything left; Linck retrieved a bag of marijuana from the
refrigerator and said there was more in his bedroom. Id. On appeal, Linck
argued that he was in custody and should have received Miranda warnings. Id.
at 62-63. The Linck court found that Linck was in custody for purposes of
Miranda warning after he admitted smoking the marijuana. Id. at 63. “By
informing the officers that he had just smoked the marijuana, Linck admitted to
engaging in illegal activity, confirming the officers’ suspicions and the original
complaint. Further, immediately before Linck made this admission, the officers
had smelled burning marijuana both in the hallway and in Linck’s apartment.”
Id.
[16] Unlike the defendant in Linck, Copeland did not make any admissions pointing
to any guilt on her or Conn’s part before the search. The officers’ suspicions
and E.C.’s allegations were not confirmed until after Copeland consented to a
search of the basement. Therefore, because Copeland was not in custody when
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she gave her consent to the search, we hold that Pirtle does not apply.
Furthermore, our review of the record indicates that Copeland gave her consent
voluntarily. Although Copeland did not admit to E.C.’s allegations at first, she
was very cooperative with Hudson and the police officers. Copeland was calm,
never yelled at the officers, and never indicated that she wanted the officers to
leave. She was neither threatened nor restrained. When asked for permission
to look in the basement, Copeland, unlike Conn outside of the house, easily
agreed. As such, we find that Copeland gave a valid consent to search the
basement.
II. NPLEx Records
[17] Conn further asserts that the trial court’s admission of the NPLEx records 1
showing the pseudoephedrine purchases Conn and Copeland made between
December 2013 and June 2014 violated his right to confrontation. The Sixth
Amendment to the United States Constitution, which applies to the states
through the Fourteenth Amendment, provides that “[i]n 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
1
Indiana code section 35-48-4-14.7 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. The records must include
identification information of each purchaser. The retailer must submit these records to the NPLEx. The
retailer may not complete the sale if the system generates a stop sale alert. See I.C. § 35–48–4–14.7.
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declarant is unavailable, and the defendant had no prior opportunity to cross-
examine the witness. Crawford v. Washington, 541 U.S. 36, 59 (2004). However,
“[b]usiness and public records are generally admissible absent confrontation not
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 (2009). The
NPLEx records qualify as business records under Indiana Evidence Rule
803(6). Montgomery v. State, 22 N.E.2d 768, 775 (Ind. Ct. App. 2014), trans.
vacated, (citing Embrey v. State, 989 N.E.2d 1260, 1267 (Ind. Ct. App. 2013)).
[18] In Montgomery, the defendant argued that the trial court’s admission of the
NPLEx records violated his right to confrontation. Montgomery, 22 N.E.2d at
774. The Montgomery court examined the statutory requirements for ephedrine
and pseudoephedrine purchases under Indiana Code section 35-48-4-14.7 and
concluded that the main purpose of the NPLEx records was to enable the
National Association of Drug Diversion Investigators to track and regulate the
sale of non-prescription ephedrine and pseudoephedrine. Id. at 775. As such,
the main purpose of the NPLEx records was not to establish or prove some fact
at trial. Id. The Montgomery court then held that “in light of the United States
Supreme Court’s holding in Melendez-Diaz, … the records are not testimonial
and … the admission of NPLEx records at trial [does not] violate [the
defendant’s] rights under the Confrontation Clause.” Id. Here, Conn makes
the same argument as the defendant in Montgomery. Because we have
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previously determined that the NPLEx records are admissible under the
business records exception to the hearsay rule in Indiana, we hold that the trial
court did not abuse its discretion when it admitted the NPLEx records and such
admission did not violate Conn’s right to confrontation. See Embrey, 989
N.E.2d at 1267.
CONCLUSION
[19] Based on the foregoing, we hold that the trial court did not abuse its discretion
when it admitted the evidence found pursuant to a valid consent to search and a
valid search warrant and that the admission of the NPLEx records did not
violate Conn’s right to confrontation.
[20] Affirmed.
[21] Najam, J. and May, J. concur
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