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.


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      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
