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.

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      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).

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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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