FOR PUBLICATION


ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

JESSE R. POAG                                GREGORY F. ZOELLER
Newburgh, Indiana                            Attorney General of Indiana

                                             ELLEN H. MEILAENDER
                                             Deputy Attorney General
                                             Indianapolis, Indiana

                                                                           May 30 2013, 9:16 am
                              IN THE
                    COURT OF APPEALS OF INDIANA

JEFFREY EMBREY,                              )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )      No. 82A01-1211-CR-494
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )


               APPEAL FROM THE VANDERBURGH CIRCUIT COURT
                        The Honorable Carl A. Heldt, Judge
                      The Honorable Kelly E. Fink, Magistrate
                          Cause No. 82C01-1203-FB-401




                                    May 30, 2013



                             OPINION - FOR PUBLICATION



BRADFORD, Judge
       Appellant-Defendant Jeffrey Embrey was arrested at a home in Evansville on the

afternoon of March 22, 2012, after officers with the U.S. Marshall’s Fugitive Task Force

executed a warrant on an individual believed to be residing in the home. During a protective

sweep and subsequent search of the home, officers found evidence of methamphetamine

manufacture. Officers also found evidence that Embrey and a child resided in the home.

Embrey was subsequently charged with and convicted of Class B felony dealing in

methamphetamine, Class C felony neglect of a dependent, and Class D felony maintaining a

common nuisance.

       On appeal, Embrey contends that the trial court abused its discretion in admitting

certain evidence under the business records exception to the hearsay rule. Embrey also

contends that the evidence is insufficient to sustain his conviction for Class C felony neglect

of a dependent. Concluding that the trial court acted within its discretion in admitting the

challenged evidence and that the evidence is sufficient to sustain Embrey’s conviction for

Class C felony neglect of a dependent, we affirm.

                       FACTS AND PROCEDURAL HISTORY

       On the afternoon of March 22, 2012, officers with the U.S. Marshall’s Fugitive Task

Force executed a felony arrest warrant on Kenneth Cavanaugh at a home located in

Evansville. Prior to approaching the home, the officers performed surveillance and saw

Embrey cleaning or working on a car in the driveway and going in and out of the home.

Officers also saw Mary Cavanaugh arrive at the home. Officers soon thereafter approached

the home and knocked on the front door.

                                              2
       After a short period of time, Mary answered the door and confirmed that Kenneth was

inside. Mary also indicated that her “son, his wife or girlfriend, and their child” were inside

the home. Tr. p. 15 (Emphasis added). Eventually, Kenneth came out of the home and was

taken into custody. As officers conducted a protective sweep of the home, they found

Embrey and Sadie Stewart coming out of a room holding a child. The child was identified as

Jayden Embrey. Embrey’s grandfather subsequently confirmed that Embrey has a child

named Jayden Embrey.

       During the protective sweep of the home, officers saw a coffee filter with white

powder in it sitting in plain view on a desk in the bedroom. Kenneth refused to give the

officers permission to search the home without a warrant. The officers then sought and

received a search warrant before completing a more extensive search of the home.

       While executing the search warrant, officers found items used during the

manufacturing of methamphetamine throughout the home. Officers found a plastic baggy

and tubing on a table in the living room. They found salt, numerous coffee filters, a coffee

grinder with powder inside, a blender with white powder inside, and a container of

ammonium nitrate pellets in open kitchen cabinets. Officers found a cooler containing two

bottles of Coleman camp fuel and a water jug, a black box containing a one-liter reaction

vessel bottle with white residue, clear plastic tubing, and a glass jar containing a clear liquid

solvent in a small utility closet. Officers also found a coffee filter box, empty boxes of

Claritin-D, and coffee filters smelling of organic solvent sealed inside a zip lock bag in the

trash. Outside the home, officers found three surveillance cameras attached to different

                                               3
locations on the home.

       While searching the bedroom, Officers found numerous paraphernalia pipes and a

corner bag with white powder in an open drawer; a digital scale with white residue on a

table; a coffee filter with white residue; a safe containing Clariton-D blister packs, other

loose pseudoephedrine pills, and lithium batteries; a razor blade, credit cards, and a straw on

a plate with white residue; a propane torch; a marijuana bong; and a jar of numerous used

coffee filters with residue. The jar of used coffee filters was sitting on a shelf in the closet

next to a child’s toy. In addition, officers found a computer on a desk in the bedroom that

had an article up on the screen entitled “Secrets of Methamphetamine Manufacture.” Tr. p.

56. In total, all of the items necessary for the manufacture of methamphetamine except for

sulfuric acid were found in the home.

       Subsequent testing revealed that the corner plastic baggy found in the bedroom

contained 0.45 grams of methamphetamine. The used coffee filters in the zip lock bags in

the trash contained methamphetamine residue. The powder on the coffee grinder was

identified as ephedrine and/or pseudoephedrine. The fourteen whole pills and the two partial

pills found in the safe contained ephedrine and/or pseudoephedrine.

       In addition to the evidence relating to the manufacturing of methamphetamine,

officers found both adult and children’s clothing, a child’s pillow, toys, and a diaper bag in

the home. In the bedroom, officers found a prescription bottle with Embrey’s name, a CVS

pharmacy receipt for a prescription belonging to Embrey, and a couple pieces of mail

addressed to Embrey at the address of the home. Officers also found paperwork from a

                                               4
dentist listing the address of the home as Embrey’s address.

       On March 27, 2012, the State charged Embrey with Class B felony dealing in

methamphetamine,1 Class C felony neglect of a dependent,2 and Class D felony maintaining a

common nuisance.3 A jury trial was held on August 13 and 14, 2012, after which the jury

found Embrey guilty as charged. On October 11, 2012, the trial court sentenced Embrey to

an aggregate ten-year term of incarceration. This appeal follows.

                                 DISCUSSION AND DECISION

                                     I. Admission of Evidence

       Embrey contends that the trial court erred in admitting the National Precursor Log

Exchange (“NPLEx”) report documenting the purchases and attempted purchases of

ephedrine and pseudoephedrine by Embrey in the month preceding his arrest. Specifically,

Embrey claims that the trial court erred in admitting the NPLEx report because it was

inadmissible hearsay. For its part, the State argues that the trial court properly admitted the

NPLEx report because it was a business record that fell under the business record exception

to the hearsay rule.

       We review a trial court’s decision to admit or exclude evidence for an abuse of
       discretion. Iqbal v. State, 805 N.E.2d 401, 406 (Ind. Ct. App. 2004). An abuse
       of discretion occurs if a trial court’s decision is clearly against the logic and
       effect of the facts and circumstances before the court. Id. However, the
       improper admission of evidence is harmless error when the conviction is
       supported by substantial independent evidence of guilt sufficient to satisfy the
       reviewing court that there is no substantial likelihood that the questioned
       evidence contributed to the conviction. Hernandez v. State, 785 N.E.2d 294,

       1
           Ind. Code § 35-48-4-1.1(a)(1).
       2
           Ind. Code §§ 35-46-1-4(a)(1) and (b)(1)(B).
       3
           Ind. Code § 35-48-4-13(b)(2).
                                                    5
       300 (Ind. Ct. App. 2003), trans. denied.

Ware v. State, 816 N.E.2d 1167, 1175 (Ind. Ct. App. 2004).

                                A. Historical Background

       In In re Termination of Parent-Child Relationship of E.T., 808 N.E.2d 639 (Ind.

2004), the Indiana Supreme Court provided a historical background of the hearsay rule and

the business record exception to the hearsay rule, stating the following:

               Every second-year law student and perhaps first-year law student as
       well, depending on the law school curriculum, can recite the general definition
       of hearsay: “an out of court assertion offered in court to prove the truth of the
       matter asserted.” Also well known is the corollary that absent an exception to
       the rule, hearsay is inadmissible as evidence. Not so universally recited or well
       known are the numerous exceptions to the rule. Indeed precisely because of its
       numerous exceptions, some scholars have argued in favor of abolishing the
       rule altogether. See, e.g., Paul S. Milich, Hearsay Antinomies: The Case for
       Abolishing the Rule and Starting Over, 71 Or. L.Rev. 723 (1992); Eleanor
       Swift, Abolishing the Hearsay Rule, 75 Cal. L.Rev. 495 (1987). In any event,
       the exceptions to the rule have been generally based upon some combination of
       the unavailability of the declarant, the reliability of the declaration, or the
       presumed inefficiency of any possible cross-examination. See generally 5
       John Henry Wigmore, Evidence §§ 1420–27 (Chadbourn rev.1974); 2 John W.
       Strong, McCormick on Evidence § 253 (5th ed. 1999).
               An outgrowth of the English common law “shop book” rule, the
       business records exception is one of the oldest exceptions to the rule against
       the admissibility of hearsay. In England, the custom emerged of courts
       receiving the shop books of businessmen as evidence of goods sold or services
       rendered. The purpose was to circumvent the prohibition against a party
       appearing as its own witness. By 1832, the “shop book” rule was firmly
       grounded in English common law, and its scope included all entries made in
       the ordinary course of business. McCormick on Evidence 285.
               Today, either by statute, court rule, or both, every American jurisdiction
       has adopted rules governing the admission of business records. See 5
       Wigmore, Evidence § 1561a, at n. 6 (Supp.1991).

808 N.E.2d 639, 641-42 (Ind. 2004).


                                               6
                B. The Business Record Exception to the Hearsay Rule

       The business record exception to the hearsay rule is codified at Indiana Rule of

Evidence 803(6), and provides as follows:

       Records of Regularly Conducted Business Activity. A memorandum, report,
       record, or data compilation, in any form, of acts, events, conditions, opinions,
       or diagnoses, made at or near the time by, or from information transmitted by,
       a person with knowledge, if kept in the course of a regularly conducted
       business activity, and if it was the regular practice of that business activity to
       make the memorandum, report, record, or data compilation, all as shown by
       the testimony or affidavit of the custodian or other qualified witness, unless the
       source of information or the method or circumstances of preparation indicate a
       lack of trustworthiness. The term “business” as used in this Rule includes
       business, institution, association, profession, occupation, and calling of every
       kind, whether or not conducted for profit.

       “Business records are an exception to the hearsay rule because they are imbued with

independent indicia of trustworthiness.” Williams v. Hittle, 629 N.E.2d 944, 947 (Ind. Ct.

App. 1994), trans. denied. “These indicia are that the business establishes a routine of

record-making, that the record is made by one with a duty to report accurately, and that the

business relies upon that record in carrying out its activities.” Id. “The fact that the business

record is prepared by a party independent of the business does not negate these factors.” Id.

So long as the “initial informant has personal knowledge of a fact, that fact may be repeated

by an infinite number of people as long as each person in the chain is acting in the regular

course of business.” Id. at 948. “The recorders themselves need not have first-hand

knowledge.” Id. Moreover, “[t]he sponsor of an exhibit need not have personally made it,

filed it, or have firsthand knowledge of the transaction represented by it.” Boarman v. State,

509 N.E.2d 177, 181 (Ind. 1987). “The sponsor need only show that the exhibit was part of

                                               7
certain records kept in the routine course of business and placed in the records by one who

was authorized to do so, and who had personal knowledge of the transaction represented at

the time of entry.” Id.

                 C. Statutory Requirement to Document the Purchase of
                            Ephedrine and Pseudoephedrine

        Indiana Code section 35-48-4-14.7(c)4 sets forth certain requirements that a retailer

must meet if the retailer sells ephedrine or pseudoephedrine. One of these requirements is

that the retailer maintains records of all sales of a nonprescription product containing

ephedrine or pseudoephedrine. These records should include: (1) the name and address of

each purchaser; (2) the type of identification presented; (3) the governmental entity that

issued the identification; (4) the identification number; and (5) the ephedrine or

pseudoephedrine product purchased, including the number of grams the product contains and

the date and time of the transaction. In addition to maintaining these records, Indiana Code

section 35-48-4-14.7(c)(5) requires that before a retailer may complete the sale of an over-

the-counter product containing pseudoephedrine or ephedrine, the retailer shall

        electronically submit the required information to the National Precursor Log
        Exchange (NPLEx) administered by the National Association of Drug
        Diversion Investigators (NADDI), if the NPLEx system is available to retailers
        in the state without a charge for accessing the system. The retailer may not
        complete the sale if the system generates a stop sale alert.

If, for some reason, the retailer experiences mechanical or electronic failure of the electronic


        4
          The Indiana General Assembly recently amended Indiana Code section 35-48-4-14.7. These
amendments will take effect on July 1, 2013. It is worth noting, however, that none of the amendments
adopted by the General Assembly effect the substance of the portions of the statute relevant to the instant
appeal.
                                                    8
sales tracking system and is unable to comply with the requirements of Indiana Code section

35-48-4-14.7(c)(5), the retailer shall maintain a written log or an alternative electronic

recordkeeping mechanism until the retailer is able to comply with requirements of Indiana

Code section 35-48-4-14.7(c)(5). Ind. Code § 35-48-4-14.7(c)(6). Indiana Code section 35-

48-4-14.7(i) imposes criminal liability for a knowing or intentional failure to comply with the

requirements of Indiana Code section 35-48-4-14.7(c).

       Indiana Code section 35-48-4-14.7(k) sets forth requirements that apply to the NPLEx

reports. This section provides that (1) the information contained in the NPLEx report may be

shared only with law enforcement officials; (2) a law enforcement official must be permitted

to access Indiana transaction information maintained in the NPLEx for investigative

purposes; (3) NADDI may not modify sales transaction data that is shared with law

enforcement officials; and (4) at least one time per week, NADDI shall forward Indiana data

contained in the NPLEx, including data concerning a transaction that could not be completed

due to the issuance of a stop sale alert, to the state police department.

                                        D. Analysis

       In arguing that the trial court erred in admitting the NPLEx report documenting his

purchases and attempted purchases of ephedrine and pseudoephedrine in the month preceding

his arrest, Embrey acknowledges that James Acquisto, the custodian of records for Appriss,

Inc., which maintained the NPLEx log, had knowledge of the fact that the information was

recorded according to Appriss’s data collection and business practices. Embrey claims,

however, that the NPLEx report should not have been admitted because Acquisto did not

                                               9
have firsthand knowledge of the recorded transactions themselves. We disagree.

       Again, Indiana law requires that retailers selling non-prescription ephedrine and

pseudoephedrine electronically submit a record of all sales of products containing ephedrine

and pseudoephedrine to the NPLEx as part of the retailer’s regularly conducted business

activity. See Ind. Code § 35-48-4-14.7(c). The retailer submits the record by electronically

scanning both the identification card of the individual making the purchase and the bar code

of the product being purchased. This submission must be made before the sale of the items

can be completed and the retailer is not permitted to complete the sale if the system generates

a “stop sale” alert. See id. Any knowing or intentional failure to make the required

submission may subject one to criminal penalties. See Ind. Code § 35-48-4-14.7(i).

       The computerized NPLEx database is maintained by Appriss, Inc. The records are

generated at the time the purchaser’s information is scanned into the system. Once a

purchase has been recorded, the information contained within the NPLEx database may only

be shared with law enforcement officials. See Ind. Code § 35-48-4-14.7(k).

       In the instant matter, Acquisto, the custodian of the NPLEx database, submitted a

“Business Records Affidavit” together with a printout of the NPLEx record of the purchases

and attempted purchases of ephedrine and pseudoephedrine made by Embrey in the month

preceding Embrey’s arrest. In his affidavit, Acquisto averred the following:

       4.      The computerized database of pseudoephedrine/ephedrine sales logs by
       retailers are kept by the Business Records Holder in the regular course of
       business, and it was the regular course of that business for its employee or
       representative, with knowledge of the act, event, condition, or opinion
       recorded to make the record or to transmit information thereof to be included
       in such record.
                                             10
       5.     Appriss, Inc. provides a secured login website available to law
       enforcement called JusticeXchange. JusticeXchange enables law enforcement
       to have the capability of searching for and printing out
       pseudoephedrine/ephedrine sales logs and information maintained by the
       Business Records, as a function of the National Precursor Log Exchange
       (NPLEx).
       6.     This affidavit certifies that all pseudoephedrine/ephedrine records
       printed by law enforcement from the JusticeXchange website are exact
       representations of the pseudoephedrine/ephedrine sales logs.

State’s Ex. 51. In addition to a log of purchases and attempted purchases of ephedrine and

pseudoephedrine, the NPLEx report contained Embrey’s name, date of birth, driver’s license

number, and address. The NPLEx report shows that in the month preceding Embrey’s arrest,

Embrey made numerous purchases of ephedrine or pseudoephedrine. The NPLEx report also

shows that Embrey was blocked from purchasing ephedrine or pseudoephedrine on multiple

other occasions.

       Upon review, we conclude that the NPLEx report is imbued with an independent

indicia of trustworthiness, and, as such, qualifies as a business record. The information

contained in the NPLEx report was submitted to the NPLEx database in the course of the

retailers’ regular business activity at the time of the purchase or attempted purchase by

employees of the retailers who had firsthand knowledge of the transactions. These

submissions were made by individuals who, in the routine course of their employment, had a

duty to accurately report the information and could be held criminally liable for a knowing or

intentional failure to make an accurate report. In addition, these individuals relied on the

information contained in the database as part of the regular course of their employment as it

was unlawful for them to complete the transaction if the database generated a “stop sale”

                                             11
alert.

         Because the individuals submitting the information had both firsthand knowledge of

the purchases or attempted purchases as well as a duty to accurately report the purchases or

attempted purchases, we conclude that Acquisto, as custodian of the records, was not

required to have firsthand knowledge of the purchases or attempted purchases. See

Boarman, 509 N.E.2d at 181 (providing that a sponsor of an exhibit need not have firsthand

knowledge of the transaction represented by it, but rather only need to be able to show that

the records were kept in the routine course of business and the information was submitted by

one with personal knowledge of the transaction at the time of entry); Williams, 629 N.E.2d at

947 (providing that so long as the initial informant has personal knowledge of a fact, the

recorders themselves need not have firsthand knowledge). Acquisto averred that the

information contained in the NPLEx report was submitted by individuals with firsthand

knowledge of the transactions in the regular course of their business, and that the report was

an exact representation of the sales logs maintained by Appriss. The trial court acted within

its discretion in determining that a proper foundation was laid, and the NPLEx report was

admissible under the business records exception to the hearsay rule.

                                II. Sufficiency of the Evidence

         Embrey also contends that the evidence presented by the State is insufficient to sustain

his conviction for Class C felony neglect of a dependent.

         When reviewing the sufficiency of the evidence to support a conviction,
         appellate courts must consider only the probative evidence and reasonable
         inferences supporting the verdict. It is the fact-finder’s role, not that of
         appellate courts, to assess witness credibility and weigh the evidence to
                                             12
       determine whether it is sufficient to support a conviction. To preserve this
       structure, when appellate courts are confronted with conflicting evidence, they
       must consider it most favorably to the trial court’s ruling. Appellate courts
       affirm the conviction unless no reasonable fact-finder could find the elements
       of the crime proven beyond a reasonable doubt. It is therefore not necessary
       that the evidence overcome every reasonable hypothesis of innocence. The
       evidence is sufficient if an inference may reasonably be drawn from it to
       support the verdict.

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and quotations

omitted). “In essence, we assess only whether the verdict could be reached based on

reasonable inferences that may be drawn from the evidence presented.” Baker v. State, 968

N.E.2d 227, 229 (Ind. 2012). Upon review, appellate courts do not reweigh the evidence or

assess the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind. 2002).

Inconsistencies in witness testimony go to the weight and credibility of the testimony, “the

resolution of which is within the province of the trier of fact.” Jordan v. State, 656 N.E.2d

816, 818 (Ind. 1995).

       Indiana Code section 35-46-1-4(a) provides, in relevant part, that a “person having the

care of a dependent, whether assumed voluntarily or because of a legal obligation, who

knowingly or intentionally: (1) places the dependent in a situation that endangers the

dependent’s life or health … commits neglect of a dependent, a Class D felony.” “However,

the offense is: (1) a Class C felony if it is committed … in a location where a person is

violating IC 35-48-4-1 (delivery, financing, or manufacture of cocaine, methamphetamine, or

a narcotic drug).” Ind. Code § 35-46-1-4(b). “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.” Ind.


                                             13
Code § 35-41-2-2(b). “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).

       In arguing that the evidence is insufficient to sustain his conviction for Class C felony

neglect of a dependent, Embrey does not challenge the sufficiency of the evidence

demonstrating that he knowingly or intentionally placed a child in a situation that endangered

the child’s life or health, i.e., a place where one was engaging in the manufacturing of

methamphetamine. Embrey merely challenges the sufficiency of the evidence to prove that

the child in question was his dependent. However, the evidence most favorable to the jury’s

verdict demonstrates that Embrey was the child’s father, and, as a result, had a legal duty to

care for the child.

       When asked by the members of the U.S. Marshall’s Fugitive Task Force who was

present in the home, Embrey’s mother said that her son, her son’s wife or girlfriend, and

“their” child were in the home. Tr. p. 15 (Emphasis added). The child in the home was

subsequently identified as Jayden Embrey, and Embrey’s grandfather testified that Embrey

has a child named Jayden Embrey. In addition, when officers entered the home, Embrey and

Stewart were both holding the child as they came out of a room together. This evidence is

sufficient to prove that the child found in the home was a dependent of Embrey’s. Embrey’s

claim to the contrary amounts to an invitation to reweigh the evidence, which we will not do.

See Stewart, 768 N.E.2d at 435.

       The judgment of the trial court is affirmed.

RILEY, J., and BROWN, J., concur.

                                              14
