FOR PUBLICATION
FILED
Jun 28 2012, 9:17 am
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARIELENA DUERRING GREGORY F. ZOELLER
Duerring Law Offices Attorney General of Indiana
South Bend, Indiana
KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ELDON E. HARMON, )
)
Appellant, )
)
vs. ) No. 20A03-1110-CR-529
)
STATE OF INDIANA, )
)
Appellee. )
APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable George W. Biddlecome, Judge
Cause No. 20D03-0910-FA-47
June 28, 2012
OPINION – FOR PUBLICATION
MATHIAS, Judge
Eldon E. Harmon (“Harmon”) was convicted in Elkhart Superior Court of Class A
felony dealing in methamphetamine by manufacturing. Harmon appeals and raises two
issues, one of which we find dispositive: whether the state presented sufficient evidence
to establish that Harmon manufactured at least three grams of methamphetamine. We
reverse and remand with instructions.1
Facts and Procedural History
On the evening of October 4, 2009, Cheyenne Fisher (“Fisher”) drove to
Harmon’s residence in Elkhart County. Once there, Fisher asked Harmon whether he had
any methamphetamine. Harmon responded that he did not have any methamphetamine,
and Fisher stated that if he could obtain a box of pseudoephedrine, he could manufacture
the drug. Harmon and Fisher then left Harmon’s residence and purchased three boxes of
pseudoephedrine from three separate stores. Some time later, Harmon and Fisher drove
to a friend’s house, where they manufactured methamphetamine in the garage. After
successfully completing a batch of methamphetamine, Fisher gave Harmon some of the
finished product and kept some for himself. Fisher then placed the items he and Harmon
had used to manufacture the drug into the trunk of his car. In the early morning hours,
Fisher and Harmon returned to Harmon’s residence where they both smoked
methamphetamine.
1
We heard oral argument on this cause on May 21, 2012, at Garrett High School in Garrett, Indiana before an
audience of students, faculty, and members of the DeKalb County Bar Association. We commend counsel for their
superb oral advocacy, and we thank the students and school personnel for their hospitality. We also thank the
DeKalb County Bar Association for hosting a pre-argument luncheon at the Auburn Cord Duesenberg Museum in
Auburn, Indiana. Finally, we thank all audience members for their attention and thoughtful post-argument questions
concerning Indiana’s judicial system.
2
Later that morning, Fisher’s girlfriend, Sonya Sandefur, showed up at Harmon’s
residence and tried to persuade Fisher to come home with her. Sandefur detected an odor
coming from the house that she associated with the manufacturing of methamphetamine,
and Fisher admitted to her that he had been “cooking meth” the night before. Tr. p. 335.
Sandefur became angry and called the police because she did not want Fisher to drive
while under the influence of methamphetamine. While Sandefur was on the phone,
Harmon and Fisher got into Fisher’s car and left. As he was driving away, Fisher spotted
a police car. Fisher then pulled the car into a driveway, tossed the keys to Harmon, and
took off running. An officer pursuing Fisher saw Fisher throw several plastic baggies.
After apprehending Fisher, officers recovered the baggies and determined that two of
them contained methamphetamine.
Police subsequently conducted a search of Fisher’s car. The police recovered
numerous items used to manufacture and ingest methamphetamine from the trunk of the
car, including three empty boxes of pseudoephedrine, cold packs, lithium battery strips, a
jar of lye, a bottle of Liquid Fire, cut straws and pen casings, and aluminum foil. Officers
also located four coffee filters that contained a white or pink powder, which field-tested
positive for methamphetamine. Officers also found three vessels in the trunk, a red
thermos, inside of which was a gallon-sized plastic freezer bag containing blue liquid,
and two plastic bottles, one containing a blue liquid covering an off-white sludge, and
one containing a clear liquid covering the same type of off-white sludge. Samples of the
liquid taken from each vessel later tested positive for the presence of methamphetamine.
As a result of these events, the State charged Harmon with Class A felony dealing in
3
methamphetamine by manufacturing. The charge was elevated from a Class B felony
based on the State’s allegation that Harmon had manufactured three grams or more of the
drug.
At trial, Fisher testified that he and Harmon successfully manufactured 1.52 grams
of methamphetamine, which they split between themselves, and then placed the items
used to produce the methamphetamine in the trunk of his car. Fisher testified further that
the methamphetamine he discarded while being pursued by the police was the amount
remaining after he and Harmon smoked some of their finished product. The State
presented evidence establishing that the total weight of the crystallized methamphetamine
recovered from the scene was 1.34 grams. Specifically, the total weight of the
methamphetamine in the plastic baggies Fisher threw while being pursued by police was
1.2 grams, and the total measured weight of the methamphetamine found on the coffee
filters was 0.14 grams. Samples of liquid taken from each of the vessels described above
were also admitted into evidence as State’s Exhibits 15, 16, and 17. The liquid samples
were determined by an Indiana State Police Laboratory chemist to contain
methamphetamine; however, the chemist did not determine the weights of the samples
because it is the laboratory’s policy not to weigh liquids.
In order to establish the weight of the liquid samples and to satisfy the Class A
felony element of three grams or more, the State was allowed, over Harmon’s objection,
to have Indiana State Trooper Aaron Campbell (“Trooper Campbell”) conduct a
demonstration comparing the weight of each sample to the weight of a vial containing
three grams of artificial sweetener. Specifically, Trooper Campbell emptied three
4
packets of sweetener, each of which was labeled with a weight of one gram, into a vial
similar to those containing the samples of liquid methamphetamine. The vial containing
the sweetener was introduced into evidence for demonstrative purposes as State’s Exhibit
39A.
Trooper Campbell then held State’s Exhibit 39A in one hand and State’s Exhibit
15 in the other hand and testified that the vials were of approximately equal weight. He
repeated this process of comparison with State’s Exhibits 16 and 17, and testified that
each of them weighed approximately the same as State’s Exhibit 39A. He testified
further that the samples of liquid methamphetamine base admitted into evidence at trial
were only a fraction of the liquid contained in the vessels. Trooper Campbell indicated
that the sample taken from the thermos was a small portion of the liquid it contained, and
he testified further that he could have taken ten to twenty samples of comparable size
from each of the two plastic bottles before emptying them. Photos of the reaction vessels
as they appeared on the date they were discovered were admitted into evidence at trial,
but the vessels and their remaining contents were destroyed prior to trial due to safety
concerns arising from the volatility of the chemicals involved in the manufacture of
methamphetamine. After Trooper Campbell finished testifying, the members of the jury
were permitted to examine the vials.
At the conclusion of the trial, the jury found Harmon guilty as charged. Harmon
was sentenced to forty years, with thirty years executed and ten years suspended to
probation. Harmon now appeals.
5
Discussion and Decision
Harmon contends that the State presented insufficient evidence to support his
conviction for Class A felony dealing in methamphetamine. In reviewing a challenge to
the sufficiency of the evidence, we neither reweigh the evidence nor judge the credibility
of witnesses. Atteberry v. State, 911 N.E.2d 601, 609 (Ind. Ct. App. 2009). Instead, we
consider only the evidence supporting the conviction and the reasonable inferences to be
drawn therefrom. Id. If there is substantial evidence of probative value from which a
reasonable trier of fact could have drawn the conclusion that the defendant was guilty of
the crime charged beyond a reasonable doubt, then the verdict will not be disturbed.
Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008).
Indiana Code section 35-48-4-1.1(a) provides that a person who knowingly or
intentionally manufactures pure or adulterated methamphetamine is guilty of dealing in
methamphetamine, a Class B felony. However, the offense is elevated to a Class A
felony “if the amount of the drug involved weighs three (3) grams or more.” Ind. Code §
35-48-4-1.1(b)(1). Thus, the weight of the drugs is an essential element of Harmon’s
Class A felony conviction.
On appeal, Harmon does not dispute that he knowingly or intentionally
manufactured methamphetamine, a B felony offense with a range of possible sentences
between six and twenty years. Harmon only disputes whether the State presented
sufficient evidence to establish the weight element of the Class A felony offense, which
carries a range of possible sentences between twenty and fifty years. Specifically,
Harmon notes that because the crystallized methamphetamine introduced into evidence at
6
trial weighed only 1.34 grams, the State was required to present evidence establishing
that Harmon manufactured another 1.66 grams of the drug. According to Harmon,
because the State did not accurately establish the weight of the liquid methamphetamine
base2 found in the trunk of Fisher’s car, the State failed to prove that the total weight of
the drug was at least three grams.
Our supreme court addressed the manner in which the State may prove the weight
element of a drug offense in Halsema v. State, 823 N.E.2d 668 (Ind. 2005). In Halsema,
the defendants were charged with several drug offenses, including Class A felony
possession of three grams of methamphetamine within one thousand feet of a school. Id.
at 672-73. The State introduced no evidence at trial to establish the weight of the
methamphetamine at issue, but argued on appeal that the jurors were able to examine the
drugs and use their common sense and experience to determine whether the drugs
weighed at least three grams.
Our supreme court disagreed, reasoning that while the jury may rely on its
collective common sense and knowledge acquired through everyday experience, a juror’s
ability to determine the existence of a fact based on his or her common sense and
experience is not unlimited. Id. at 673-74. The court reasoned further that a jury may not
2
The evidence presented at trial established that the liquid methamphetamine base was not yet in consumable form;
rather, it was an intermediate substance created during the process of manufacturing methamphetamine. At that
particular step in the process, the liquid was a mixture of methamphetamine and other substances used to make the
drug, such as ether and Coleman fuel. Before the drug could be ingested, it would need to go through another step
in the manufacturing process in order to remove these substances and crystallize the drug into its consumable form.
For the purposes of this opinion, we will assume (but we do not hold) that the entire weight of the liquid, and not
just its pure methamphetamine content, may be considered in determining whether Harmon manufactured at least
three grams of “pure or adulterated” methamphetamine. See Ind. Code § 35-48-4-1.1 (prohibiting the manufacture
of “pure or adulterated” methamphetamine); Hundley v. State, 951 N.E.2d 575, 581 (Ind. Ct. App. 2011) (holding
that where an “intermediate step [in the methamphetamine manufacturing process] is so near the end of the
manufacturing process that the final product is present in the chemical compound, that substance qualifies as an
‘adulterated drug’ for purposes of our manufacturing statutes”), trans. denied.
7
infer the existence of a fact based solely on its in-court observations where the jury does
not possess the knowledge or expertise necessary to make that inference. Id. at 674. The
court went on to hold that “we are not persuaded that the weight of a given quantity of
drugs, especially when expressed in a metric unit of measurement, is a matter of general
knowledge and expertise.” Id. Rather, the court held that the matter of the weight of a
given quantity of drugs is familiar only to those who regularly use or deal in the drug,
those who enforce laws against it, or those who “‘have developed an acute ability to
assess the weight of objects down to the ounce[,]’” and that the “‘average juror does not
fall into any of these categories.’” Id. (quoting State v. Mitchell, 336 N.C. 22, 442 S.E.2d
24, 28 (1994)). Ultimately, the court held that the State may establish the weight element
of a drug offense in one of two ways: (1) by offering evidence of the actual, measured
weight of the drugs, or (2) by demonstrating that the quantity of the drugs is so large as to
permit a reasonable inference that the element of weight has been established. Id.
Here, the State presented no forensic evidence establishing the actual, measured
weight of Exhibits 15, 16, or 17, or the remaining contents of the three vessels. Instead,
the State relied on Trooper Cambpell’s in-court demonstration, in which Trooper
Campbell compared the weight of Exhibit 39A, a vial holding the contents of three
packets of artificial sweetener, to the weights of Exhibits 15, 16, and 17. Trooper
Campbell testified that he believed each vial containing liquid methamphetamine base
weighed approximately the same as the vial containing the sweetener, and the members
of the jury were permitted to handle the vials and conduct their own comparisons.
8
This evidence was inadequate to establish the “actual, measured weight” of the
vials. See Halsema, 823 N.E.2d at 674. First, as Harmon points out, although the labels
on the sweetener packets apparently indicated that their contents weighed one gram, the
State presented no evidence to establish the accuracy of the labels. And even if we
assume that the sweetener packets were accurately labeled, we cannot conclude that
either Trooper Campbell or the members of the jury were physically able to gauge the
weight of the vial containing the sweetener versus the weight of the vials containing
liquid methamphetamine base with sufficient accuracy to constitute proof beyond a
reasonable doubt. As Harmon notes, Trooper Campbell and the jury were essentially
permitted to act as “human scales” to determine the weight of the samples of liquid
methamphetamine base—and there is simply no way to assess the accuracy of their
conclusions. Moreover, Trooper Campbell was unable to testify that Exhibits 15, 16, and
17 each weighed precisely the same as Exhibit 39A. Rather, he indicated that Exhibit 15
weighed “probably close to the same” as Exhibit 39A, that Exhibits 16 and 39A were
“approximately” the same weight, and Exhibits 17 and 39A “compared in weight.” Tr. p.
492. For all of these reasons, we hold that the State presented insufficient evidence to
constitute proof beyond a reasonable doubt of the “actual, measured weight” of the liquid
methamphetamine base. See Halsema, 823 N.E.2d at 674.
Nor can we conclude that the State introduced sufficient evidence to establish that
the quantity of liquid methamphetamine base was so large as to permit a reasonable
inference that the weight element of the charge had been established. See id. We
acknowledge that Trooper Campbell testified that the vessels recovered from the trunk of
9
Fisher’s car contained far more liquid methamphetamine base than that contained in
Exhibits 15, 16, and 17—indeed, Trooper Campbell indicated that the sample taken from
the thermos was only a “small portion” of the liquid it contained, and that he could have
taken ten to twenty more samples from each of the two plastic bottles before draining
them. Tr. pp. 489-91. But it should be noted that the samples contained in Exhibits 15,
16, and 17 are quite small; photographs of the exhibits show that each vial is less than
half full. Accordingly, the fact that Trooper Campbell could have taken many more
samples of comparable size does not necessarily establish that the vessels contained an
especially large amount of methamphetamine base.
Nor do the photographs of the vessels introduced into evidence at trial support a
conclusion that the amount of liquid methamphetamine was so great as to permit a
reasonable inference that the weight element of the offense had been satisfied. State’s
Exhibit 38 depicts the two plastic bottles recovered from the trunk of Fisher’s car. The
bottles are the same size, and appear to be beverage containers. Both bottles are
approximately half-full. The contents of both bottles consist of roughly equal portions of
white or off-white powdery sludge and clear or blue liquid. State’s Exhibit 39 depicts the
thermos. The thermos is opaque, and part of a plastic freezer bag can be seen protruding
from its top. However, due to the angle of the photograph, it is impossible to tell how
much (if any) liquid the thermos and/or bag contains.
We acknowledge that in Halsema, our supreme court gave virtually no guidance as
to just how much of a drug is required to establish that the quantity is large enough to
permit a reasonable inference that the weight element of a drug offense has been satisfied
10
absent evidence of the drug’s actual, measured weight. Although we decline to set forth
a general rule concerning the threshold amount required to permit such an inference, we
are not satisfied that the threshold was met here. Because the State failed to present
evidence of the actual, measured weight of the liquid methamphetamine base or to
demonstrate that the quantity of the liquid was so large as to permit a reasonable
inference that the weight element of the offense had been met, pursuant to our supreme
court’s decision in Halsema, we conclude that the evidence is insufficient to support
Harmon’s Class A felony conviction.
The sole basis for elevating Harmon’s offense from a Class B felony to a Class A
felony was the weight of the drug. That is, to support the elevation, the State was
required to prove beyond a reasonable doubt that Harmon manufactured at least three
grams of methamphetamine. The General Assembly’s insertion of a weight requirement
into the Class A felony methamphetamine manufacturing statute requires the State to
prove the weight of the drug with precision. But here, the State used an unreliable
method to establish the weight element of the Class A felony offense. We acknowledge
that, for reasons that are not readily apparent, the State Police Laboratory has a policy
against weighing liquids.3 But there were other, scientific ways the State could have
established the actual, measured weight of the samples of liquid methamphetamine base,
3
We further note, as discussed during oral argument, that there may be some question as to whether grams are an
appropriate unit of measurement for liquids, in the first instance. Grams are a unit of mass and, of course, both
solids and liquids have mass. However, the more common practice is to measure liquids in units of volume. Given
the fact that reaction vessels containing liquid methamphetamine base, like those at issue in this case, are often
found in methamphetamine laboratories, it may be prudent for our General Assembly to consider incorporating an
alternative, volume-based measurement for such liquids into the methamphetamine manufacturing statutes.
11
such as conducting a courtroom demonstration using a balance or scale. Allowing
Trooper Campbell and the jury to act as “human scales” was simply not good enough to
constitute proof beyond a reasonable doubt. We believe that allowing the State to rely on
such imprecise methods to establish the essential element necessary to elevate Harmon’s
offense from a Class B to a Class A felony, thereby increasing his maximum possible
sentence by thirty years, would be fundamentally unfair and undermine public confidence
in our criminal justice system. See Ind. Code § 35-50-2-4 (providing that the maximum
sentence for a Class A felony is fifty years); Ind. Code § 35-50-2-5 (providing that the
maximum sentence for a Class B felony is twenty years).
Finally, we address the State’s argument that although police only recovered 1.34
grams of crystallized methamphetamine, based on the evidence presented at trial, the jury
could have reasonably inferred that Harmon and Fisher’s manufacturing activities yielded
more than three grams of the finished product. According to the State, the following
evidence, when taken together, supports such an inference: (1) Fisher’s testimony that he
and Harmon used one box of pseudoephedrine to manufacture 1.52 grams of
methamphetamine, (2) the evidence that Fisher and Harmon actually purchased and used
three boxes of pseudoephedrine, (3) Fisher’s admission that he and Harmon conducted
“two cooks” of methamphetamine, and (4) the discovery of more than one reaction vessel
in the trunk of Fisher’s car. According to the State, this evidence supports a reasonable
inference that each “cook” must have yielded 1.52 grams of methamphetamine, more
than enough to satisfy the three-gram threshold necessary to support a Class A felony
conviction. We disagree.
12
As a general matter, a conviction may rest on circumstantial evidence alone. See
Gambill v. State, 675 N.E.2d 668, 674 (Ind. 1996). But, as we explained above, in
Halsema, our supreme court held that the weight element of a drug offense may be
established in one of two ways: either by admitting evidence of the actual, measured
weight of the drug, or by demonstrating that the amount of drugs is so large as to permit a
reasonable inference that the weight element has been satisfied. See Halsema, 823
N.E.2d at 674. We have already concluded that the State presented insufficient evidence
to satisfy either standard with respect to the liquid methamphetamine base. The State’s
arguments concerning the amount of drugs it believes Harmon and Fisher could have or
must have manufactured are likewise insufficient under Halsema.
Moreover, we believe that the State’s inference that Harmon must have
manufactured more than three grams of crystallized methamphetamine stretches reason
beyond its breaking point. At oral argument, the State made much of Fisher’s testimony
that he and Harmon used one box of pseudoephedrine to produce 1.52 grams of
methamphetamine and that they carried out two methamphetamine cooks. The State
relied on this testimony to argue that each cook must have yielded 1.52 grams. But the
State misconstrues Fisher’s testimony. During trial, Fisher and the prosecutor engaged in
the following exchange:
Q: How many cooks did you do that night?
A: Just one.
Q: But you indicated that both of the reactionary vessels in your trunk were
from that night.
A: Yes.
13
Q: And there were two of them.[4]
A: Yes.
Q: But you only cooked once.
A: Yeah.
Q: Where did the other reactionary vessel come from?
A: Just cooking both at the same time.
Q: Okay. So you did two cooks that night.
A: If you want to call it two cooks.
Q: So there were two reactionary vessels?
A: Yes.
Tr. pp. 364-65 (emphasis added).
It is clear from the above testimony that Fisher was initially referring to the entire
methamphetamine manufacturing transaction as a single “cook,” which yielded 1.52
grams of the drug. It was the prosecutor who referred to each individual reaction vessel
as a separate cook, and Fisher merely assented to the prosecutor’s characterization. But
this does not change Fisher’s testimony that he and Harmon only used one box of
pseudoephedrine and the total yield of methamphetamine was 1.52 grams. Indeed, when
asked whether he “only produced 1.5 grams,” Fisher responded affirmatively. Tr. p. 428.
Whatever the import of the discovery of two additional empty pseudoephedrine boxes in
the trunk of the car, Fisher’s testimony cannot be reasonably understood to support a
conclusion that the total yield of finished methamphetamine was at least three grams.
And even if we assume that Fisher’s testimony could support a reasonable
inference that the 1.52 grams of methamphetamine he testified to splitting with Harmon
was the product of only one of the reaction vessels, there is no evidence or testimony
4
At trial, it appears that the State only referred to the two plastic beverage bottles containing the powdery sludge
and liquid methamphetamine base as “reaction vessels.” At oral argument, the State did not seem to draw the same
distinction between the plastic bottles and the thermos. Regardless of whether there were two or three reaction
vessels, we conclude that the evidence is insufficient to support an inference that Harmon manufactured at least
three grams of finished, crystallized methamphetamine.
14
establishing the weight of any methamphetamine derived from any other reaction vessel
or indicating that using the additional pseudoephedrine in other reaction vessels would
necessarily yield the same or a similar amount of methamphetamine. Any such
conclusion on the part of the jury would be pure speculation. For all of these reasons, we
conclude that the State’s string of inferences is simply too tenuous to satisfy its burden of
proof beyond a reasonable doubt with respect to the weight element of the Class A felony
charge.
Notwithstanding the State’s failure to present sufficient evidence to prove Class A
felony dealing in methamphetamine, we note that the jury was also instructed on the
lesser-included offense of Class B felony dealing in methamphetamine. Specifically, the
jury was instructed as follows:
If you find that the State proved beyond a reasonable doubt that the
defendant knowingly manufactured methamphetamine and that the amount
of the drug involved weighed three (3) grams or more, you should find the
defendant guilty of Dealing in Methamphetamine, a Class A felony. If you
find that the State of Indiana proved beyond a reasonable doubt that the
defendant knowingly manufactured methamphetamine but that amount of
the drug involved weighed less than three (3) grams, you should find the
defendant guilty of Dealing in Methamphetamine, a Class B felony.
Tr. p. 532. The only difference between the Class A and the Class B felony offenses is
that in order to prove the Class A felony, the State must prove that the weight of the
drugs was at least three grams. Accordingly, in finding Harmon guilty of the Class A
felony, the jury necessarily concluded that Harmon committed the Class B felony. The
evidence presented at trial was clearly sufficient to support a Class B felony conviction,
and Harmon concedes as much on appeal. See Appellant’s Br. at 9-10 (“The Class A
15
felony conviction must be vacated and this cause should be remanded to the trial court
with instructions to enter a conviction for a Class B felony and to re-sentence Harmon
accordingly.”). We therefore reverse Harmon’s conviction for Class A felony dealing in
methamphetamine and remand to the trial court with instructions to enter a conviction for
Class B felony dealing in methamphetamine and to resentence Harmon accordingly.
Reversed and remanded with instructions.
VAIDIK, J., concurs in result with opinion.
BARNES, J., concurs.
16
_______________________________________________________
IN THE
COURT OF APPEALS OF INDIANA
ELDON E. HARMON, )
)
Appellant, )
)
vs. ) No. 20A03-1110-CR-529
)
STATE OF INDIANA, )
)
Appellee. )
)
VAIDIK, Judge, concurring in result.
I concur in full with the majority opinion that the State presented insufficient
evidence to establish that Harmon manufactured at least three grams of
methamphetamine.
I write separately to address the issues with determining generally the amount of
methamphetamine that is involved in the manufacturing in a particular case. When the
manufacturing process is complete and the methamphetamine is in either a pure or
adulterated state, there is not an issue in determining the weight; the methamphetamine is
in its final form and the drug can easily be weighed.
Issues arise, however, when the manufacturing process has not been completed
and the methamphetamine is still mixed in with liquid ingredients. Varying methods
have been used to determine the actual weight of the methamphetamine produced in this
17
situation; one of those methods is weighing the solid methamphetamine and the liquid
ingredients used in the manufacturing process together. Hundley v. State, 951 N.E.2d
575 (Ind. Ct. App. 2011), trans. denied; Traylor v. State, 817 N.E.2d 611 (Ind. Ct. App.
2004), trans. denied. Another method is determining the amount of methamphetamine
that will be produced using a conversion ratio based on the amount of ephedrine or
pseudoephedrine that is present. Halferty v. State, 930 N.E.2d 1149, 1153 (Ind. Ct. App.
2010), trans. denied.5
The majority assumes, but does not hold, that the entire weight of the liquid can be
considered when determining the weight of the methamphetamine that Harmon
manufactured. Slip op. p. 7 n.2. I find the method of measuring the weight of the
methamphetamine and the liquid together to be inherently problematic and to require
ascertaining the legislative intent behind the manufacturing-of-methamphetamine statute.
I conclude that the legislature did not intend for the liquid byproduct of the
manufacturing process to be included in the measurement of the weight of
methamphetamine involved.
Indiana Code section 35-48-4-1.1 delineates the different classes of felonies based
on the weight of the methamphetamine involved, and the dividing line between a Class A
and a Class B felony is three grams. The statute states:
(a) A person who:
(1) knowing or intentionally:
5
At first blush, there does not appear to be a split in our Court regarding how to measure the
methamphetamine involved; both methods are acceptable. But, if the measurement of the
methamphetamine involved can include the liquid, then the weight of the drug will always be greater than
three grams and the conversion-ratio method will never be used.
18
(A) manufactures;
(B) finances the manufacture of;
(C) delivers; or
(D) finances the delivery of;
methamphetamine, pure or adulterated; . . . commits dealing in
methamphetamine, a Class B felony, except as provided in subsection (b).
(b) The offense is a Class A felony if:
(1) The amount of the drug involved weights three (3) grams or more; . .
..
Ind. Code § 35-48-4-1.1. The language of the statute itself provides the best evidence of
legislative intent, and we strive to give the words in the statute their plain and ordinary
meaning. Brown v. State, 912 N.E.2d 881, 894 (Ind. Ct. App. 2009).
Using the word “grams” as the unit of measurement in the statute indicates that it
is the solid drug that is intended to be measured, not the liquid that is used to manufacture
the drug. As the majority indicates, grams are a unit of mass whereas it is a more
common practice to measure liquids in units of volume. Slip op. p. 11 n.3; see, e.g.,
Using Metric Units and Symbols, Northern Michigan University – Computing for
Teachers, http://ellerbruch.nmu.edu/classes/cs255w02/cs255students/MAGNUSO/P9/
common.pdf (last visited June 11, 2012) (“It takes about 29 grams to equal one dry ounce
. . . . [A liter] is basically a fluid volume unit as is the smaller metric unit called the
milliliter (ml).”) (emphases added).
Also, construing the statute in a way that would include the liquid along with the
methamphetamine would defeat the purpose of delineating Class A and Class B felonies
at three grams, as it could potentially eviscerate the Class B felony manufacturing-of-
methamphetamine charge. If the methamphetamine was found in the middle of the
19
manufacturing process and the weight of the liquid was included in the total weight of the
drug, there would never be an instance where the amount of methamphetamine would be
less than three grams. The legislature surely did not mean to create a statute that could
never be applicable. Additionally, Class A or Class B felony status would depend on the
accident of what stage in the manufacturing process the police found the
methamphetamine. This cannot be what was intended.
The statute also includes “pure or adulterated” methamphetamine when measuring
the amount of methamphetamine involved in the manufacturing process. Another panel
of this Court has found that both the liquid and solid should be considered when
determining the weight of the drug being manufactured. Hundley, 951 N.E.2d at 581. In
Hundley, this Court held that when “the intermediate step is so near the end of the
manufacturing process that the final product is present in the chemical compound, that
substance qualifies as an ‘adulterated drug’ for purposes of our manufacturing statutes.’”
Id. I do not agree.
“Adulterate” is defined as “[t]o debase or make impure by adding a foreign or
inferior substance.” Black’s Law Dictionary 52 (9th ed. 2009). I do not think this
definition is meant to include a drug in the middle of the manufacturing process; it is only
meant to refer to a debased final product. So, to add a substance after the manufacturing
process is to adulterate a substance, but products used in the manufacturing process do
not adulterate the byproduct produced. Accordingly, I do not believe that the legislature
intended the liquid ingredients used to manufacture methamphetamine to be included in
the calculation of the amount of drugs involved.
20
A more appropriate method for determining the amount of methamphetamine a
person is manufacturing is using a conversion ratio based on the amount of ephedrine or
pseudoephedrine that is present. This method uses a scientifically determined formula to
calculate how much methamphetamine would be produced based on the amount of
ephedrine or pseudoephedrine that is used in manufacturing. Using a conversion ratio
allows for a reliable measure of the weight of the drug that will be produced without
adding in the additional weight of any precursors that are still present in the
manufacturing process when the methamphetamine is discovered.
Other jurisdictions around the country have adopted this method, and expert
witnesses are employed to apply the conversion ratio due to its case-by-case variability.
See, e.g., People v. Wilke, 854 N.E.2d 275, 278 (Ill. App. Ct. 2006) (“an agent for the
United States Drug Enforcement Administration . . . would testify to a mathematical
formula used for determining how much methamphetamine could be produced with a
given amount of precursor pseudoephedrine.”); Hill v. State, 161 S.W.3d 771, 777 (Tx.
Crim. App. 2005) (“[Agent from Deep East Texas Regional Narcotics Task Force]
replied that by using the amounts listed on each package, he calculated a total of 5,760
milligrams of pseudoephedrine. He further testified that such an amount of
pseudoephedrine would yield approximately 3.5 grams of methamphetamine after
completion of the ‘cooking process.’”); State v. Camerer, 29 S.W.3d 422, 424 (Mo. Ct.
App. 2000) (“The criminalist explained how pseudoephedrine and anhydrous ammonia
are used to manufacture methamphetamine. One gram of pseudoephedrine normally
yields one gram of methamphetamine.”). I believe this is the best method to use to
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determine yield when the methamphetamine is in the middle of the manufacturing
process. The State recognized in its oral argument the existence of the conversion ratio.
As an alternative argument, the State contends that from the amount of ephedrine used in
the manufacturing of the completed product, the jury could extrapolate as to how much
methamphetamine the unfinished manufacturing process would produce. I do not agree
with the State.
It is essential that an expert witness be present at trial to testify to the conversion
ratio and how it applies in each case. As we indicated in Halferty, a conversion ratio
between ephedrine/pseudoephedrine to methamphetamine can be used, but it can change
“depending on the cooking process, on whether pill binders are stripped from the
ephedrine/pseudoephedrine, and on the person who is ‘cooking’ the methamphetamine.”
930 N.E.2d at 1153. With so many ingredients involved in the manufacturing of
methamphetamine and so many different factors that can alter how those ingredients
affect the yield, determining yield is not a task that should be undertaken by a lay person.
When the difference of such a small amount can have such a profound effect on a
potential sentence, the trial court needs to be sure that the yield is accurate.6
Therefore, while I agree with the majority that there is insufficient evidence to
establish that Harmon manufactured at least three grams of methamphetamine, I do not
agree with the assumption that my colleagues make about the way in which the yield of
methamphetamine can be measured. I would find that only the finished product, pure or
6
One exception would be when the amount of the drugs being manufactured is so large as to
permit a reasonable inference that the element of weight has been established. See Halsema v. State, 823
N.E.2d 668 (Ind. 2005).
22
adulterated, can be considered when determining the amount of the drug that is being
manufactured or that a conversion ratio and an expert witness should be used when the
manufacturing process is not complete and the yield is uncertain.
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