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

• Court: Indiana Court of Appeals
• Decided: March 17, 2016
• Docket: 48A02-1505-CR-311
• Status: Published

Opinion

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.

Court of Appeals of Indiana | Memorandum Decision 48A02-1505-CR-311 | March 17, 2016 Page 1 of 12 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.

Court of Appeals of Indiana | Memorandum Decision 48A02-1505-CR-311 | March 17, 2016 Page 2 of 12 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

Court of Appeals of Indiana | Memorandum Decision 48A02-1505-CR-311 | March 17, 2016 Page 3 of 12 (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

Court of Appeals of Indiana | Memorandum Decision 48A02-1505-CR-311 | March 17, 2016 Page 4 of 12 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,

Court of Appeals of Indiana | Memorandum Decision 48A02-1505-CR-311 | March 17, 2016 Page 5 of 12 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

Court of Appeals of Indiana | Memorandum Decision 48A02-1505-CR-311 | March 17, 2016 Page 6 of 12 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:

Court of Appeals of Indiana | Memorandum Decision 48A02-1505-CR-311 | March 17, 2016 Page 7 of 12 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

Court of Appeals of Indiana | Memorandum Decision 48A02-1505-CR-311 | March 17, 2016 Page 8 of 12 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

Court of Appeals of Indiana | Memorandum Decision 48A02-1505-CR-311 | March 17, 2016 Page 9 of 12 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.

Court of Appeals of Indiana | Memorandum Decision 48A02-1505-CR-311 | March 17, 2016 Page 10 of 12 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

Court of Appeals of Indiana | Memorandum Decision 48A02-1505-CR-311 | March 17, 2016 Page 11 of 12 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

Court of Appeals of Indiana | Memorandum Decision 48A02-1505-CR-311 | March 17, 2016 Page 12 of 12