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                MEMORANDUM DECISION - NOT FOR PUBLICATION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.




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