                   IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1827
                            Filed December 24, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BROCK MCREY BURGDORF,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Warren County, Richard B. Clogg,

Judge.



      The defendant appeals from a conviction of conspiracy to manufacture

methamphetamine. REVERSED AND REMANDED.




      Patrick W. O’Bryan of O’Bryan Law Firm, Des Moines, for appellant.

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

General, John Criswell, County Attorney, and Douglas A. Eichholz, Assistant

County Attorney, for appellee.



      Heard by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
                                            2


VAITHESWARAN, J.

       In this appeal from a judgment and sentence for conspiracy to

manufacture methamphetamine, the primary issue is whether the State

established a foundation for the admission of electronic pseudoephedrine

tracking records.

I.     Background

       Pseudoephedrine is the active ingredient in certain over-the-counter cold

medications.        See State v. Heuser, 661 N.W.2d 157, 164 (Iowa 2003).

Pseudoephedrine also is a key ingredient in methamphetamine. See Iowa Code

§    124.212(4)(c)     (2013)   (listing   pseudoephedrine       as   a   precursor   to

methamphetamine).

       In 2005, the legislature limited the amount of pseudoephedrine a person

could purchase within a twenty-four-hour period and within a thirty-day period.

See id. § 124.213. The legislature also restricted retailers from selling more than

the amounts set forth in section 124.213 and imposed notification and monitoring

requirements on the retailers.         See id. § 126.23A.         Later, the legislature

strengthened the monitoring requirements and authorized the Governor’s Office

of Drug Control Policy to create a “real-time electronic repository to monitor and

control the sale of . . . products containing any detectable amount of

pseudoephedrine.” See id. §§ 124.212B(1); .101(21); see also id. § 124.212A.

The legislature charged the office with adopting rules to administer the provision.

See id. § 124.212B(8).

       The office promulgated rules, as directed.          See Iowa Admin. Code rs.

657–100.1      to   –100.5.     The    rules    require   all   pharmacies   dispensing
                                        3


pseudoephedrine without a prescription to participate in the electronic

pseudoephedrine tracking system. See Iowa Admin. Code r. 657–100.3. The

rules afford law enforcement officers access to the data but reaffirm the statutory

delegation of control over the repository to the Governor’s Office of Drug Control

Policy. See Iowa Admin. Code rs. 657–100.1, .4(2).

      According to the State, Brock Burgdorf became involved in a scheme to

circumvent these laws and regulations.          Under the scheme, a known

methamphetamine manufacturer enlisted a team of methamphetamine users to

purchase allowed quantities of pseudoephedrine in exchange for a portion of the

completed drug.    The State charged Burgdorf and others with conspiracy to

manufacture methamphetamine. See Iowa Code §§ 124.401(1)(b)(7), .413.

      Before trial, the prosecutor expressed an intent to introduce records

obtained from the electronic pseudoephedrine tracking system, also known as

the National Precursor Log Exchange System, or NPLEx. Burgdorf’s attorney

filed a motion in limine seeking to exclude the documents. The district court

overruled the motion, reasoning the documents would likely fall within the

business records exception to the rule prohibiting admission of hearsay

evidence. See Iowa Rs. Evid. 5.801, .802.

      At trial, the State began by eliciting general testimony about NPLEx

records from a special agent with the Iowa Department of Public Safety. In the

midst of his testimony, the State moved to amend the minutes of evidence to add

a witness who would testify about specific NPLEx records pertaining to the
                                          4


involvement of Burgdorf and his claimed coconspirators.            The district court

granted the belated motion.1

         The State called a sergeant with the Army National Guard, who offered

thirteen NPLEx exhibits as well as a fourteenth “summary” exhibit. Burgdorf’s

attorney strenuously objected on several grounds, including lack of foundation

and hearsay. The district court overruled the objections. Following trial, a jury

found Burgdorf guilty of conspiracy to manufacture methamphetamine.

         Burgdorf raises several issues on appeal, one of which we find dispositive:

the absence of proper authentication or foundation for admission of the NPLEx

records. Certain other issues will be addressed to the extent they bear on this

issue.

II.      Authentication, Foundation of NPLEx Records

         Iowa Rule of Evidence 5.901 requires authentication or identification of

documents as a condition precedent to admissibility.           This requirement “is

satisfied by evidence sufficient to support a finding that the matter in question is

what its proponent claims.” Iowa R. Evid. 5.901. The rule sets forth several

examples of conforming evidence, including the following:

                (1) Testimony of witness with knowledge. Testimony that a
         matter is what it is claimed to be.
                ....
                (7) Public records or reports. Evidence that a writing
         authorized by law to be recorded or filed and in fact recorded or
         filed in a public office, or a purported public record, report,
1
  Burgdorf challenges the court’s ruling. Because Bergdorf knew of the records from the
outset, we conclude he was not prejudiced by the district court’s grant of the motion.
See State v. Wells, 522 N.W.2d 304, 307 (Iowa Ct. App. 1994) (“Prejudice does not
arise simply because an amendment to the minutes is allowed. Prejudice generally
looks to the existence of some legitimate surprise visited upon the defendant which
undermines an aspect of the defense to the charge or renders defendant’s evidence
inapplicable.”).
                                         5

       statement, or data compilation, in any form, is from the public office
       where items of this nature are kept.

Iowa R. Evid. 5.901(b) (emphasis added). Rule 5.902 enumerates certain self-

authenticating documents, such as “domestic public documents under seal,”

certified “domestic public documents not under seal,” “certified copies of public

records,” and “certified domestic records of regularly conducted activity.” See

Iowa R. Evid. 5.902(1), (2), (4), (11). Specifically, subsection 4 provides:

       Certified copies of public records. A copy of an official record or
       report or entry therein, or of a document authorized by law to be
       recorded or filed and actually recorded or filed in a public office,
       including data compilations in any form, certified as correct by the
       custodian or other person authorized to make the certification, by
       certificate complying with rule 5.902(1), (2), or (3) or complying with
       any Act of Congress or rule prescribed by the United States
       Supreme Court pursuant to statutory authority, or statutes of Iowa
       or any other state or territory of the United States, or rule
       prescribed by the Iowa Supreme Court.

Iowa R. Evid. 5.902(4). Subsection 11, pertaining to business records, requires

       a written declaration of its custodian or other qualified person . . .
       certifying that the record—
               (A) was made at or near the time of the occurrence of the
       matters set forth by, or from information transmitted by, a person
       with knowledge of those matters;
               (B) was kept in the course of the regularly conducted activity;
       and
               (C) was made by the regularly conducted activity as a
       regular practice.

Iowa R. Evid. 5.902(11). The subsection further requires advance notice of the

declaration. See Iowa R. Evid. 5.902(11).

       Burgdorf contends the NPLEx exhibits were not admitted “by anyone who

may have actually entered the data from which the logs were compiled, nor by

anyone who was an actual custodian of the records.” In his view, these records

lacked “proper authentication and foundation” generally or as business records.
                                         6


A ruling on a foundation objection usually is reviewed for an abuse of discretion.

See State v. Musser, 721 N.W.2d 734, 750 (Iowa 2006).            The presence or

absence of a foundation for the admission of business records is reviewed for

errors of law. State v. Reynolds, 746 N.W.2d 837, 841 (Iowa 2008).

       The State did not call anyone from the Governor’s Office of Drug Control

Policy to authenticate or lay a foundation for the NPLEx records. Nor did the

State obtain a certification from the office stating the proffered records were what

they purported to be. The two witnesses who were called admitted to lacking

foundational knowledge of the NPLEx records. The special agent essentially

conceded he had nothing to do with culling the NPLEx records. The sergeant

acknowledged he was not a custodian of the thirteen NPLEx exhibits nor were

they records he kept in the ordinary course of business.        See id. at 842-43

(noting State failed to meet all requirements of business records exception

foundation where it failed to call anyone with knowledge of how Federal Reserve

reports were generated); State v. Warick, No. 13-1396, 2014 WL 3511875, at *1

(Iowa Ct. App. July 16, 2014) (noting foundation for NPLEx exhibits was partially

established through a records custodian attestation). The sergeant also admitted

the information contained in the records was input by someone other than him—

“a pharmacist, a pharmacist tech, or a person trained to operate the system in

various stores and pharmacies.” The State failed to call a pharmacist or retailer

to testify about this process or procedure. See Warick, 2014 WL 3511875, at *1

(noting the State called a pharmacist to testify “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
                                         7

by which that information was placed into the electronic repository”); State v.

Quang, No. 12-0739, 2013 WL 4504934, at *3-4 (Iowa Ct. App. Aug. 21, 2013)

(concluding the State “presented sufficient evidence to show the exhibit was what

the State purported it to be” where the State offered the testimony of sixteen

pharmacists).      Absent compliance with these “conditions precedent,” the

documents were inadmissible either generally or as business records. See Iowa

R. Evid. 5.901.

         We turn to the prejudice component. See Reynolds, 746 N.W.2d at 843-

44. This component is drawn from rule 5.103(a), which states, “Error may not be

predicated upon a ruling which admits or excludes evidence unless a substantial

right of the party is affected.” Iowa R. Evid. 5.103(a). We presume prejudice and

reverse unless the record affirmatively establishes otherwise. State v. Sullivan,

679 N.W.2d 19, 30 (Iowa 2004).           The record may affirmatively establish

otherwise if the properly admitted evidence is overwhelming. See id. at 30-31.

The record also may affirmatively establish otherwise if substantially the same

evidence is already in the record. State v. Brown, 656 N.W.2d 355, 361 (Iowa

2003).

         This record does not affirmatively establish otherwise. The State heavily

relied on the NPLEx records to establish a pattern of sales in furtherance of a

conspiracy to manufacture methamphetamine. The pattern was not discernable

from other duly-admitted evidence. While coconspirators implicated Burgdorf in

the scheme, they did not replicate the precise times and amounts of

pseudoephedrine purchases contained in the NPLEx records. Nor did a GPS

tracking device placed on the methamphetamine manufacturer’s vehicle do more
                                          8


than identify possible players in the scheme and document stops outside retail

establishments.

       We are left with video recordings showing Burgdorf purchasing

pseudoephedrine at Wal-Mart.       These recordings were admitted through the

special agent, over defense counsel’s foundational objection. The admission of

these recordings is raised as a separate assignment of error. The recordings

were   inadmissible   without     foundational      testimony   from   a   Wal-Mart

representative. See State v. Deering, 291 N.W.2d 38, 39 (Iowa 1980) (requiring

“preliminary proof that the picture projected from the film be an accurate

reproduction of the event which it depicts”). Accordingly, we decline to consider

the video recordings in determining whether Burgdorf was prejudiced by the

admission of the NPLEx records.

       We conclude the NPLEx records were not cumulative of other evidence

contained in the record and the other evidence was far from overwhelming. In

other words, Burgdorf’s substantial rights were affected by the admission of the

NPLEx records and the summary. The erroneous admission of these exhibits

requires reversal.

       The only remaining question is whether we reverse and remand for a new

trial or whether we reverse for dismissal. The answer to this question turns on

how we resolve Burgdorf’s additional challenge to the sufficiency of the evidence

supporting the jury’s finding of guilt.       If Burgdorf’s challenge is successful,

double-jeopardy principles would preclude retrial.       See State v. Dullard, 668

N.W.2d 585, 597 (Iowa 2003). Accordingly, we proceed to this issue.
                                       9


III.   Sufficiency of the Evidence

       “In determining whether retrial is permissible all the evidence admitted

during the trial, including erroneously admitted evidence, must be considered.”

Id. at 597.   Our review is for substantial evidence.   State v. Hennings, 791

N.W.2d 828, 832-33 (Iowa 2010).

       The jury was instructed the State would have to prove the following

elements of conspiracy to manufacture methamphetamine:

              1. Between August 7, 2010 and October 20, 2012, the
       Defendant agreed with one or more persons that:
                      a. One or more of them would manufacture
              methamphetamine; or
                      b. Attempt to manufacture methamphetamine.
              2. The Defendant entered into the agreement with the intent
       to promote or facilitate the manufacture of methamphetamine.
              3. The Defendant or his coconspirators committed an overt
       act.
              4. The coconspirators were not law enforcement agents
       investigating the manufacture of methamphetamine or assisting law
       enforcement agents in the investigation when the conspiracy
       began.

Burgdorf contends “there was never a showing [of] an agreement to engage in

the manufacture of methamphetamine by this defendant” or that he “intended to

participate in the actual manufacturing of methamphetamine.”

       The special agent testified to the scheme of collecting pseudoephedrine

following the implementation of the tracking system. He also identified a known

methamphetamine manufacturer and the manufacturer’s affiliation with other

individuals who purchased pseudoephedrine.        He corroborated Burgdorf’s

involvement with the NPLEx records and Wal-Mart video recordings as well as

GPS tracking of the methamphetamine manufacturer’s vehicle. Additionally, two

coconspirators testified against Burgdorf.   While the testimony of one was
                                       10


severely impeached, credibility determinations are ultimately for the fact finder.

State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006).

      Considering the entire record, including the erroneously admitted

evidence, we discern substantial evidence to support the jury’s finding of guilt.

Accordingly, dismissal is not warranted.

IV.   Disposition

      The erroneous admission of the NPLEx records requires reversal and

remand for a new trial.

      REVERSED AND REMANDED.
