Jeff Leath v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
Nov 12 2014, 9:17 am
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:
BRUCE W. GRAHAM GREGORY F. ZOELLER
Graham Law Firm P.C. Attorney General of Indiana
Lafayette, Indiana
JODI KATHRYN STEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JEFF LEATH, )
)
Appellant-Defendant, )
)
vs. ) No. 79A05-1404-CR-149
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Thomas H. Busch, Judge
Cause No. 79D02-1309-FD-6
November 12, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
Jeff Leath appeals his conviction for class D felony unlawful sale of a precursor,
arguing that the evidence is insufficient to support his conviction. We affirm.
Facts and Procedural History
The facts most favorable to the verdict show that in September 2013, Leath had
known Aaron and Barbara Tague for about five months. The Tagues were addicted to
methamphetamine. Leath knew that they were meth users. The Tagues had used meth at
Leath’s home. Sometimes, the Tagues paid Leath $30 to $40 or gave him synthetic
marijuana to buy pseudoephedrine. Leath knew that pseudoephedrine was used to make
meth.
On September 3, 2013, the Tagues offered Leath $40 to buy a package of
pseudoephedrine for them. Aaron and Barbara could not purchase pseudoephedrine
themselves because both had already purchased the thirty-day maximum permitted by law.1
The Tagues drove their red Pacifica to pick up Leath and Trinity York. Barbara was high on
meth and heroin, which she was also addicted to. Aaron had also used meth that day.
The Tagues drove Leath and York to a West Lafayette pharmacy. Barbara gave
money to Leath to buy pseudoephedrine. He went into the pharmacy and bought a box of
pseudoephedrine. He gave Barbara the package, and she removed the two blister packs and
put them in her purse. Barbara gave York money to buy pseudoephedrine. He went into the
1
The sale and purchase of pseudoephedrine is regulated pursuant to Indiana Code Section 35-48-4-
14.7.
2
pharmacy and bought a box of pseudoephedrine. Barbara put the two blister packs from
York’s purchase in her purse.
During this time, Officer Jonathan Morgan was in his patrol car across from the
pharmacy monitoring the National Precursor Log Exchange (“NPLEx”), a database that
tracks and stores purchases of pseudoephedrine. Using the NPLEx database, Officer Morgan
saw that at approximately 9:47 p.m., Leath purchased a package of pseudoephedrine. The
NPLEx database also showed that Leath had purchased or attempted to purchase
pseudoephedrine five times since July 13, 2013, and that his most recent attempt had been
blocked because he had already purchased the maximum permitted by law. State’s Ex. 1. At
approximately 10:02 p.m., the NPLEx database revealed that York bought a package of
pseudoephedrine. Officer Morgan saw York exit the pharmacy and get into a red Pacifica.
When the Pacifica drove away, Officer Morgan followed. He observed the car weaving in its
lane and speeding. He activated his lights and stopped the Pacifica. Officer Morgan
requested and received identification from all the vehicle’s occupants. Aaron was driving,
York was in the front passenger seat, Barbara and her seventeen-month-old child were in the
second-row seat, and Leath was in the third-row seat. Officer Morgan recognized York and
Leath as the men he had seen leaving the pharmacy.
A drug detection canine team arrived to assist Officer Morgan. An officer conducted
a dog sniff around the exterior of the vehicle. While the dog was led around the car, Officer
Morgan asked Aaron to step out of the car and patted him down for weapons. Officer
Morgan discovered a bag of marijuana in Aaron’s pocket. Another officer patted down York
3
and found a bag of synthetic marijuana. Meanwhile, the dog alerted to the presence of drugs
in the Pacifica, and police began to search the vehicle. In Barbara’s purse, they found four
blister packs of pseudoephedrine. Two empty boxes of pseudoephedrine were lying on the
seat. In a diaper bag, police found two hypodermic needles, a small bag of meth, and a small
amount of marijuana. In a compartment behind the third-row seat, police found some glass
Mason jars and a Tupperware container that held coffee filters and paper towels emitting a
strong chemical odor associated with the manufacture of meth.2 Police were concerned that
the chemical odor had posed a health danger to the child and therefore transported the child
to a medical facility for evaluation.
The State charged Leath with class D felony unlawful sale of a precursor. At trial,
Barbara testified that Leath bought the pseudoephedrine for her so that she could trade it for
heroin or meth. Leath testified that he was neither a meth user nor a manufacturer and that he
had no idea what was in the Pacifica. He also testified that he had allergies. The jury found
Leath guilty as charged. He appeals.
Discussion and Decision
Leath asserts that the evidence is insufficient to support his conviction. Our standard
of review is well settled:
[When] reviewing the sufficiency of the evidence needed to support a criminal
conviction[,] ... we neither reweigh evidence nor judge witness credibility. We
consider only the evidence supporting the judgment and any reasonable
inferences that can be drawn from such evidence. We will affirm a conviction
2
The State mistakenly asserts that these materials were “[i]n the back seat of the car, where [Leath]
had been sitting,” and that “[Leath] sat next to materials.” Appellee’s Br. at 4, 8.
4
if there is substantial evidence of probative value such that a reasonable trier of
fact could have concluded the defendant was guilty beyond a reasonable doubt.
Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008) (citations omitted).
To convict Leath of class D felony unlawful sale of a precursor, the State was required
to prove beyond a reasonable doubt that he sold, transferred, distributed, or furnished a
chemical reagent or precursor3 to Barbara and/or Aaron with knowledge or intent that the
recipient would use it to manufacture a controlled substance.4 Ind. Code § 35-48-4-14.5(g);
Appellant’s App. at 9. “A person engages in conduct ‘intentionally’ if, when he engages in
the conduct, it is his conscious objective to do so.” Ind. Code § 35-41-2-2. “A person
engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high
probability that he is doing so.” Id.Leath argues that while the evidence may be sufficient to show that he knew that the
pseudoephedrine would eventually be transferred to someone who would use it to
manufacture meth, it is insufficient to establish that he knew that the recipient, Barbara
and/or Aaron, would use it to manufacture meth. Leath’s argument relies heavily on
Barbara’s testimony that she was going to trade the pseudoephedrine for heroin or meth. To
the extent that Barbara’s testimony bears on Leath’s knowledge, the jury was free to
disregard her testimony in favor of the State’s circumstantial evidence. Here, the evidence
showed that the Tagues used meth in Leath’s home; Leath knew that the Tagues were meth
3
Pseudoephedrine is as a chemical reagent or precursor. Ind. Code § 35-48-4-14.5(a)(2).
4
Methamphetamine is a schedule II controlled substance. Ind. Code § 35-48-2-6(d)(2).
5
users; and he knew that pseudoephedrine is used to make meth. The evidence also showed
that Barbara had paid Leath to buy pseudoephedrine before this offense and that within the
two-month period that included the current offense, Leath had purchased or attempted to
purchase pseudoephedrine five times. One of those purchases had been blocked because he
had exceeded his purchase limit. Finally, the State showed that Leath was sitting in the
vehicle’s third-row seat near materials that were linked to the manufacture of meth. These
materials gave off such a strong chemical odor that Officer Morgan was concerned for the
health of the child in the vehicle. From this evidence, a reasonable jury could find beyond a
reasonable doubt that Leath was aware of a high probability that the Tagues were going to
use the pseudoephedrine that he gave them to make meth. We conclude that the evidence is
sufficient and therefore affirm Leath’s conviction.
Affirmed.
RILEY, J., and MATHIAS, J., concur.
6