Jeffrey Embrey v. State of Indiana

989 N.E.2d 1260, 2013 WL 2360104, 2013 Ind. App. LEXIS 257
CourtIndiana Court of Appeals
DecidedMay 30, 2013
Docket82A01-1211-CR-494
StatusPublished
Cited by17 cases

This text of 989 N.E.2d 1260 (Jeffrey Embrey v. State of Indiana) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jeffrey Embrey v. State of Indiana, 989 N.E.2d 1260, 2013 WL 2360104, 2013 Ind. App. LEXIS 257 (Ind. Ct. App. 2013).

Opinion

OPINION

BRADFORD, Judge.

Appellant-Defendant Jeffrey Embrey was arrested at a home in Evansville on the afternoon of March 22, 2012, after officers with the U.S. Marshall’s Fugitive Task Force executed a warrant on an individual believed to be residing in the home. During a protective sweep and subsequent search of the home, officers found evidence of methamphetamine manufacture. Officers also found evidence that Embrey and a child resided in the home. Embrey was subsequently charged with and convicted of Class B felony dealing in methamphetamine, Class C felony neglect of a dependent, and Class D felony maintaining a common nuisance.

On appeal, Embrey contends that the trial court abused its discretion in admitting certain evidence under the business records exception to the hearsay rule. Embrey also contends that the evidence is insufficient to sustain his conviction for Class C felony neglect of a dependent. Concluding that the trial court acted within its discretion in admitting the challenged evidence and that the evidence is sufficient to sustain Embrey’s conviction for Class C felony neglect of a dependent, we affirm.

*1262 FACTS AND PROCEDURAL HISTORY

On the afternoon of March 22, 2012, officers with the U.S. Marshall’s Fugitive Task Force executed a felony arrest warrant on Kenneth Cavanaugh at a home located in Evansville. Prior to approaching the home, the officers performed surveillance and saw Embrey cleaning or working on a car in the driveway and going in and out of the home. Officers also saw Mary Cavanaugh arrive at the home. Officers soon thereafter approached the home and knocked on the front door.

After a short period of time, Mary answered the door and confirmed that Kenneth was inside. Mary also indicated that her “son, his wife or girlfriend, and their child” were inside the home. Tr. p. 15 (Emphasis added). Eventually, Kenneth came out of the home and was taken into custody. As officers conducted a protective sweep of the home, they found Em-brey and Sadie Stewart coming out of a room holding a child. The child was identified as Jayden Embrey. Embrey’s grandfather subsequently confirmed that Embrey has a child named Jayden Em-brey.

During the protective sweep of the home, officers saw a coffee filter with white powder in it sitting in plain view on a desk in the bedroom. Kenneth refused to give the officers permission to search the home without a warrant. The officers then sought and received a search warrant before completing a more extensive search of the home.

While executing the search warrant, officers found items used during the manufacturing of methamphetamine throughout the home. Officers found a plastic baggy and tubing on a table in the living room. They found salt, numerous coffee filters, a coffee grinder with powder inside, a blender with white powder inside, and a container of ammonium nitrate pellets in open kitchen cabinets. Officers found a cooler containing two bottles of Coleman camp fuel and a water jug, a black box containing a one-liter reaction vessel bottle with white residue, clear plastic tubing, and a glass jar containing a clear liquid solvent in a small utility closet. Officers also found a coffee filter box, empty boxes of Claritin-D, and coffee filters smelling of organic solvent sealed inside a zip lock bag in the trash. Outside the home, officers found three surveillance cameras attached to different locations on the home.

While searching the bedroom, Officers found numerous paraphernalia pipes and a corner bag with white powder in an open drawer; a digital scale with white residue on a table; a coffee filter with white residue; a safe containing Claritin-D blister packs, other loose pseudoephedrine pills, and lithium batteries; a razor blade, credit cards, and a straw on a plate with white residue; a propane torch; a marijuana bong; and a jar of numerous used coffee filters with residue. The jar of used coffee filters was sitting on a shelf in the closet next to a child’s toy. In addition, officers found a computer on a desk in the bedroom that had an article up on the screen entitled “Secrets of Methamphetamine Manufacture.” Tr. p. 56. In total, all of the items necessary for the manufacture of methamphetamine except for sulfuric acid were found in the home.

Subsequent testing revealed that the corner plastic baggy found in the bedroom contained 0.45 grams of methamphetamine. The used coffee filters in the zip lock bags in the trash contained metham *1263 phetamine residue. The powder on the coffee grinder was identified as ephedrine and/or pseudoephedrine. The fourteen whole pills and the two partial pills found in the safe contained ephedrine and/or pseudoephedrine.

In addition to the evidence relating to the manufacturing of methamphetamine, officers found both adult and children’s clothing, a child’s pillow, toys, and a diaper bag in the home. In the bedroom, officers found a prescription bottle with Embre/s name, a CVS pharmacy receipt for a prescription belonging to Embrey, and a couple pieces of mail addressed to Embrey at the address of the home. Officers also found paperwork from a dentist listing the address of the home as Embrey’s address.

On March 27, 2012, the State charged Embrey with Class B felony dealing in methamphetamine, 1 Class C felony neglect of a dependent, 2 and Class D felony maintaining a common nuisance. 3 A jury trial was held on August 13 and 14, 2012, after which the jury found Embrey guilty as charged. On October 11, 2012, the trial court sentenced Embrey to an aggregate ten-year term of incarceration. This appeal follows.

DISCUSSION AND DECISION

I. Admission of Evidence

Embrey contends that the trial court erred in admitting the National Precursor Log Exchange (“NPLEx”) report documenting the purchases and attempted pin-chases of ephedrine and pseudoephedrine by Embrey in the month preceding his arrest. Specifically, Embrey claims that the trial court erred in admitting the NPLEx report because it was inadmissible hearsay. For its part, the State argues that the trial court properly admitted the NPLEx report because it was a business record that fell under the business record exception to the hearsay rule.

We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. Iqbal v. State, 805 N.E.2d 401, 406 (Ind.Ct.App.2004). An abuse of discretion occurs if a trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court. Id. However, the improper admission of evidence is harmless error when the conviction is supported by substantial independent evidence of guilt sufficient to satisfy the reviewing court that there is no substantial likelihood that the questioned evidence contributed to the conviction. Hernandez v. State, 785 N.E.2d 294, 300 (Ind.Ct.App.2003), trans. denied.

Ware v. State,

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Bluebook (online)
989 N.E.2d 1260, 2013 WL 2360104, 2013 Ind. App. LEXIS 257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jeffrey-embrey-v-state-of-indiana-indctapp-2013.