                     IN THE COURT OF APPEALS OF IOWA

                                     No. 13-1396
                                 Filed July 16, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KRIS WARICK,
     Defendant-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Scott County, Nancy S. Tabor,

Judge.



       Appeal from a conviction of conspiracy to manufacture methamphetamine.

AFFIRMED.



       Jack E. Dusthimer, Davenport, for appellant.

       Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney

General, Michael J. Walton, County Attorney, and Patrick McElyea, Assistant

County Attorney, for appellee.



       Considered by Danilson, C.J., and Potterfield and McDonald, JJ. Tabor,

J., takes no part.
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MCDONALD, J.

       Kris Warick appeals his conviction of conspiracy to manufacture a

controlled substance, methamphetamine, in violation of Iowa Code section

124.401(1)(c)(6) (2011). Warick contends the district court erred in admitting into

evidence over his objection a pseudoephedrine sales transaction report.               He

contends the report lacked foundation, it constituted inadmissible hearsay, and

its admission violated his rights under the Confrontation Clause. We review the

district court’s decision regarding foundation for an abuse of discretion.            See

State v. Musser, 721 N.W.2d 734, 750 (Iowa 2006).                  We review rulings on

hearsay objections for correction of errors at law.           See State v. Jordan, 663

N.W.2d 877, 879 (Iowa 2003). Finally, we review constitutional claims de novo.

See State v. Newell, 710 N.W.2d 6, 23 (Iowa 2006).

       Federal law and state law require that retailers obtain, among other things,

identification   information    and     the       signature   of   persons   purchasing

pseudoephedrine, which is the active ingredient used in the manufacture of

methamphetamine.       See 21 U.S.C. § 830; Iowa Code § 124.212A (requiring

pharmacists to prepare electronic log to record transactions); Iowa Code

§ 124.212B (requiring creation of real-time electronic repository to control and

monitor    sales);   Iowa      Admin.   Code         r.   657-100.1   (establishing   the

pseudoephedrine tracking system).             The information is maintained in an

electronic repository accessible to certain identified persons, including law

enforcement officers. The electronic repository used by the State of Iowa is the

National Precursor Log Exchange (hereinafter “NPLEx”). At issue in this case is
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a report prepared from information contained within the NPLEx electronic

repository identifying thirteen sales transactions in which someone identifying

themselves as Warick purchased pseudoephedrine from pharmacies and grocery

stores.

          We conclude Warrick’s challenge to the foundation laid for the exhibit is

without merit. “Whether the offering party has established a proper foundation is

a matter committed to the sound discretion of the trial court; reversal is warranted

only when there is a clear abuse of discretion.” Musser, 721 N.W.2d at 750.

Here, the foundation for the exhibit was established through the testimony of

three witnesses and a business records affidavit.          A pharmacist testified

regarding the process and procedure by which a covered retailer obtained and

recorded identification information and a signature at the point of sale and the

process and procedure by which that information was placed into the electronic

repository. A special agent from the Iowa Department of Public Safety, Division

of Narcotics Enforcement, established NPLEx is the repository used by the State

of Iowa and established the reliability of the data in the repository. The same

agent also testified regarding the quantity of methamphetamine that could have

been produced from the amount of pseudoephedrine shown to be purchased on

the report. One of the investigating officers explained how he accessed the sales

transaction information from the NPLEx repository and prepared the physical

report.      Finally, the records custodian for the company responsible for

maintaining the sales transaction information in the electronic repository provided

a business records affidavit. Based on the foregoing, the district court did not
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clearly abuse its discretion in determining there was sufficient foundation to allow

the exhibit. See Embry v. State, 989 N.E.2d 1260, 1265-66 (Ind. Ct. App. 2013)

(finding certification by the pseudoephedrine purchase records custodian

sufficient foundation); see also Burris v. State, No. 06-13-00039-CR, 2014 WL

576209, at *6 (Tex. Ct. App. Feb. 12, 2014) (finding an affidavit from

pseudoephedrine purchase records custodian sufficient foundation).

       Relatedly, we conclude the report at issue was not excludable as hearsay.

“Records of regularly conducted activity” are not excluded by the hearsay rule.

See Iowa R. Evid. 5.803(6). For evidence to be admissible under the business

records exception to the hearsay rule, the State must show: (1) it is a business

record; (2) it was made at or near the time of an act; (3) it was made by, or from

information transmitted by, a person with knowledge; (4) it was kept in the course

of a regularly conducted business activity; and (5) it was the regular practice of

that business activity to make such a business record.         See Iowa R. Evid.

5.803(6); State v. Reynolds, 746 N.W.2d 837, 841 (Iowa 2008).             Business

records include any “report, record, or data compilation, in any form.” Iowa R.

Evid. 5.803(6).   As discussed above, the records custodian’s affidavit, the

pharmacist’s testimony, the special agent’s testimony, and the police officer’s

testimony established the records of the sale transactions are recorded at the

point of sale, are made by and transmitted by persons with knowledge, and are

kept in the regular course of business.      Further, it is the regular practice of

pharmacies and covered retailers to record such transactions.           Indeed, as

discussed above, federal law and state law require covered sales transaction be
                                        5



recorded.       We conclude the district court did not err in determining the

pseudoephedrine purchase records fell within the business records exception to

the hearsay rule.

       We next address Warick’s Confrontation Clause claim. A defendant has

the right “to be confronted with the witnesses against him.” U.S. Const. amend.

VI; Iowa Const. art. I, § 10. Although Warick cites both the federal and state

constitution, he makes no argument that Iowa’s Constitution should be

interpreted differently than the Federal Constitution. Consequently, we construe

the provisions identically.   See State v. Shipley, 757 N.W.2d 228, 234 (Iowa

2008). The Confrontation Clause is intended to protect against the principal evil

of testimonial statements in the absence of the declarant.       See Crawford v.

Washington, 541 U.S. 36, 50 (2004).         Thus, the first question presented is

whether the statement is testimonial in nature; if the statement is not testimonial

in nature, then the Confrontation Clause is not implicated.          See id.     In

determining whether evidence is testimonial in nature, the relevant inquiry in this

case is whether the evidence was the product of inquisitory investigation. See

Shipley, 757 N.W.2d at 238; see also State v. Kennedy, 846 N.W.2d 517, 523-25

(Iowa 2014) (confirming certified abstracts of driving records were not

testimonial).

       The Iowa Supreme Court recently addressed a similar Confrontation

Clause issue in Kennedy. There, the court held an abstract of the defendant’s

driving record and supporting business records affidavit were not testimonial in

nature and were thus admissible without violating the defendant’s right to
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confrontation. Like an abstract of a driving record, the NPLEx report in this case

is not testimonial. The pharmacy is required to create the records by federal and

state law. The records are created at the time of sale, not in anticipation of

litigation. The record is created by swiping the purchaser’s identification card

and capturing the purchaser’s signature.        Thus, the repository contains only

records of transactions and not the statements of the person making the sale.

The records are created prior to criminal investigation and prosecution. The

records would exist even if there were no subsequent criminal prosecution.

Kennedy, 846 N.W.2d at 523; Shipley, 757 N.W.2d at 238. The pharmacists who

create them are completely independent of any subsequent police investigation

and have no vested interest in their creation. Given the foregoing, we agree with

the district court that the NPLEx report at issue was non-testimonial in nature and

that its admission does not violate Warick’s constitutional right of confrontation.

See, e.g., United States v. Towns, 718 F.3d 404, 411 (5th Cir. 2013) (holding

admission of pseudoephedrine purchase logs did not violate Confrontation

Clause), cert. denied, 134 S. Ct. 307 (2013).

      AFFIRMED.
