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FOR PUBLICATION
ATTORNEY FOR APPELLANT: BETH McFADIN HIGGINS Mt. Vernon, Indiana ATTORNEYS FOR APPELLEE: STEPHEN R. CARTER Attorney General of Indiana Indianapolis, Indiana ARTURO RODRIGUEZ, II Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
CHARLES ROBERTSON, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 65A01-0703-CR-158

APPEAL FROM THE POSEY CIRCUIT COURT The Honorable James M. Redwine, Judge Cause No. 65C01-0605-FB-00034

DECEMBER 10, 2007 OPINION - FOR PUBLICATION ROBERTSON, Senior Judge

STATEMENT OF THE CASE Appellant-Defendant Charles Robertson appeals his convictions for dealing in methamphetamine, a Class B felony, and possession of chemical reagents or precursors with intent to manufacture, a Class D felony. We affirm in part, reverse in part, and remand. ISSUES Robertson raises three issues, which we restate as: I. Whether the trial court's admission of photographs of opened containers and their labels into evidence was harmless error; Whether the evidence is sufficient to support Robertson's convictions; and Whether Robertson's convictions violate the prohibition against double jeopardy. FACTS AND PROCEDURAL HISTORY On May 12, 2006, Posey County Sheriff's Deputies John Montgomery and Mark Saltzman responded to a dispatch of two people hunting artifacts on a farm without permission. Upon his arrival, Deputy Montgomery discovered an unattended black

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Toyota truck parked in the middle of the roadway. The deputy decided to have the truck towed, and Deputies Saltzman and Kenneth Rose conducted an inventory search of the truck. During the inventory, the deputies found items associated with the red

phosphorous method of manufacturing methamphetamine, as well as items associated with the packaging and ingestion of methamphetamine. Specifically, the deputies found over 500 matchbook covers that contained the matches but had the strike plates, which 2

contain red phosphorous, removed; matchbook covers that had the matches and strike plates removed; three heat source canisters--one of which was opened and the other two still sealed and in shrink wrap; a used coffee filter; baggies with the corners cut; a butane lighter; and aluminum paper with burn mark residue. The deputies also found an

application for title for the vehicle that listed Robertson and Joseph Wright as the owners and the address as 9625 Smith Diamond Road in Mount Vernon. The deputies ran a title search of the truck, which indicated that truck was registered to Robertson and Wright and showed their address as 9625 Smith Diamond Road. The deputies went to the Smith Diamond Road house, which was an elevated river camp, and upon approaching the front door, noticed an opened trash bag containing boxes of ephedrine and a hydrochloric gas ("HCL") generator. The deputies then

obtained a search warrant for the house. Upon execution of the search warrant, the deputies discovered various items associated with the red phosphorus method of manufacturing methamphetamine, including several HCL generators; cases of unopened matchbooks; matchbook covers that had no matches stapled to them but contained strike plates; two bags of matchbooks with the strike plates missing; two unopened boxes of nasal decongestant containing pseudoephedrine hydrochloride, several opened boxes of nasal decongestant and empty blister packs; an unopened bottle of hydrogen peroxide; an empty bottle of hydrogen peroxide; an unopened gallon can of acetone; new campingsized tanks of propane fuel; an opened gallon can of camping fuel; an unopened heat source canister; a full aerosol can of De-Icer, which contained methyl alcohol; an empty bottle of Heet; an opened container of tincture of iodine; an opened container of drain 3

cleaner; two opened or empty gallon bottles of muriatic acid; an opened container of salt; electric hot plates; used coffee filters; a glass condenser tube with plastic tubing; boxes of baggies; baggies with the corners cut; digital scales; a butane torch; gloves; glass tubes; glass drug paraphernalia pipes; and numerous glass Pyrex dishes and jars, some of which contained various colors of liquids that were not tested. Hanging on the kitchen wall, the deputies also saw a sign that read: DANGER KEEP LIGHTS AND FIRES AWAY ANHYDROUS AMMONIA State's Exhibit 106. The deputies did not find any finished methamphetamine at the house, but they did recover Robertson's fingerprints on some of the glass jars found in the house. Three days later, on May 19, 2006, Deputy Montgomery returned to the Smith Diamond Road residence after receiving information that Robertson and Wright were there. The deputy arrested Robertson, who told the deputy that "he was tired of running and . . ."glad he got caught" and that he "wanted to take a bath." Transcript at 38. The State charged Robertson with Count 1, dealing in methamphetamine, a Class B felony; Count 2, possession of chemical reagents or precursors--specifically, pseudoephedrine hydrochloride, iodine, sodium hydroxide, and hydrogen peroxide--with intent to manufacture a controlled substance, a Class D felony; Count 3, maintaining a common nuisance, a Class D felony; and Count 4, using private land without consent, a Class C misdemeanor. 4

A jury trial was held in February 2007. Prior to trial, Robertson filed a motion in limine to exclude photographs of any empty or opened containers and argued that they were hearsay and should be excluded from evidence. On the morning of trial, the trial court denied Robertson's motion to exclude the photographs. During trial, Robertson objected to the following State's exhibits: Exhibit 17, the one opened and two unopened, shrink-wrapped heat source canisters; Exhibit 47, a photograph of a label from an opened container of salt; Exhibit 54, a photograph of a label from an opened container of tincture of iodine; Exhibit 55, a photograph of a label from an opened container of drain cleaner, which showed that it contained sodium hydroxide; Exhibits 67 and 67A, photographs of a label from an opened container of muriatic acid, which showed that it contained hydrogen chloride; Exhibit 77, a photograph of an empty bottle of hydrogen peroxide; Exhibit 78 and 79, photographs of a label from an unopened container of hydrogen peroxide; Exhibit 91, a photograph of a label from an opened container of camping fuel; Exhibits 103, 115, 116, 117, 119, and 120, several opened boxes of nasal decongestant containing pseudoephedrine hydrochloride and empty blister packs; Exhibits 123 and 123A, photographs of a label from an opened container of muriatic acid, which showed that it contained hydrochloric acid; and Exhibits 127 and 128, photographs of a label of an empty bottle of Heet, which showed that it contained methyl alcohol. Robertson argued that these exhibits were

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hearsay and did not meet the hearsay exception under Indiana Evidence Rule 803(17). 1 The trial court overruled Robertson's objections to each of these exhibits and admitted them into evidence. Also during the trial, Deputy Rose testified that based on his training and experience, the items recovered from Robertson's truck and house indicated an "active clandestine methamphetamine laboratory" using the red phosphorus method. Transcript at 109. Deputy Saltzman also opined that methamphetamine was actively being

manufactured at the Smith Diamond Road house based on the items found in the house associated with the different steps of manufacturing, including the HCL generators and glass jars that contained bi-level liquids. When Deputy Saltzman testified, he explained the various steps of the red phosphorus method of manufacturing methamphetamine and used a Power Point presentation as a demonstrative exhibit to explain the steps. Robertson objected to Deputy Saltzman's use of the Power Point because it contained photographs of exhibits to which he had already objected to as hearsay. Robertson also argued that it was misleading and not relevant. The trial court overruled Robertson's objection. Robertson then asked the trial court to instruct the jury that they were not to consider the Power Point photographs as substantive evidence of manufacturing, and the trial court denied Robertson's request.

Robertson also raised a hearsay objection to Exhibit 56, a photograph of a full can of acetone, and Exhibit 134, a manufacturing data sheet from the manufacturer of the matchbooks that showed that the strike plates contained red phosphorous, but he does not challenge these exhibits on appeal. See Appellant's Brief at 8 n.2.

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Following the State's presentation of evidence, Robertson moved for directed verdict on Counts 1 through 3. The trial court granted a directed verdict on Count 3--the maintaining a common nuisance charge--and denied Robertson's motion on the dealing in methamphetamine and possession of precursors charges. The jury found Robertson guilty of dealing in methamphetamine and possession of chemical reagents or precursors with intent to manufacture but not guilty of using private land without consent. The trial court sentenced Robertson to an aggregate term of ten years. Robertson now appeals his convictions. DISCUSSION AND DECISION Robertson first argues that the trial court abused its discretion by admitting photographs of opened containers and their labels into evidence. Specifically, Robertson contends that Exhibits 17, 47, 54, 55, 67, 67A, 77, 78, 79, 91, 103, 115, 116, 117, 119, 120, 123, 123A, 127, and 128 constituted inadmissible hearsay and that they did not meet the "Market Reports, Commercial Publications" hearsay exception under Indiana Evidence Rule 803(17). The admission and exclusion of evidence falls within the sound discretion of the trial court, and we review the admission of evidence only for abuse of discretion. Hill v. State, 825 N.E.2d 432, 435 (Ind. Ct. App. 2005). An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances. Id. Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ind. Evidence Rule 801(c). Hearsay is not admissible at trial unless it fits within some 7

exception to the hearsay rule. Ind. Evidence Rules 801 and 802. The hearsay exception at issue in this case, Indiana Evidence Rule 803(17), provides the following are not excluded by the hearsay rule: "Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations." Our Indiana Supreme Court addressed this hearsay exception in Reemer v. State, 835 N.E.2d 1005 (Ind. 2005), and our Court addressed the exception in Forler v. State, 846 N.E.2d 266 (Ind. Ct. App. 2006). In Reemer, the State sought to prove that the defendant possessed pseudoephedrine by introducing labels on empty boxes of nasal decongestant that listed pseudoephedrine hydrochloride as an ingredient as well as the unopened blister packs that were originally in these boxes. The Reemer Court noted that federal and state regulations require that drug labels be accurate and that the general public routinely relies upon the mandatory labeling to assure that the drugs are as they are represented to be by the label. Reemer, 835 N.E.2d at 1008-09. Accordingly, the Court held that "labels of commercially marketed drugs are properly admitted into evidence under the exception provided by Evidence Rule 803(17) to prove the composition of the drug." Id. at 1009. The Reemer Court also explained that the fact that the nasal

decongestant tablets were in the original unopened blister packs was "sufficient to establish that the contents remained as the manufacturer packaged them[,]" thereby proving that the defendant possessed pseudoephedrine hydrochloride by possessing the nasal decongestant blister packs. Id.

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In Forler, we explained that Reemer holding and the Court's discussion of the hearsay exception in Evidence Rule 803(17) applied to other types of product labels in addition to commercially marketed pharmaceuticals. Forler, 846 N.E.2d at 265. In Forler, the State sought to prove that the defendant possessed methamphetamine precursors--ether and sulfuric acid--by introducing labels on a starting fluid can and a Liquid Fire bottle, respectively. Id. at 267. We noted that both the starting fluid can and the Liquid Fire bottle contained warnings regarding the danger associated with those products, and we concluded that "is permissible to assume that where a product label warns consumers that it contains dangerous ingredients, the general public reasonably relies upon the accuracy of such warnings." Id. at 270. Accordingly, we determined that the first foundational requirement of Reemer had been met. We then noted that the Reemer Court "seem[ed] to have placed a second foundational requirement for the admissibility of a product label as evidence that the defendant possessed an ingredient listed on the label." Id. We explained that this second requirement was that there needed to be "some evidence that the contents of the product remained as the manufacturer packaged them" or "[s]tated another way, there must be some evidence that at the time the police seized a container, the contents of the package or container where the label is placed are the original contents." Id. We commented that this foundational requirement "ma[de] sense, because it is conceivable that the contents could be altered or replaced after opening of the package or container." Id. In reviewing this second requirement, we noted that both the starting fluid can and the Liquid Fire bottle were neither new nor unused when seized by the police. We 9

determined that because the starting fluid can, which was an aerosol-type can, could not be readily opened or readily replaced with other contents, there was a "sufficient foundational basis for concluding that the starting fluid can still contained the original contents as packaged by the manufacturer at the time it was seized by law enforcement." Id. We explained that the Liquid Fire bottle, which was only half-full when seized by police and had a screw-off top, "present[ed] a more difficult issue" because the contents could have easily been replaced with another substance. Id. at 270-71. We did not, however, determine if there was a sufficient foundational basis for the admission of the Liquid Fire label as proof that the defendant possessed sulfuric acid because any possible error in the admission of such evidence was harmless error. Id. at 271. We explained that based on the fact that the defendant did not challenge the evidence that she possessed pseudoephedrine and based on the proper admission of the starting fluid can label that showed that she possessed ether, any error in the admission of the Liquid Fire bottle did not affect the defendant's substantial rights because there was evidence to support her conviction of possessing two methamphetamine precursors with intent to manufacture. Id. The State concedes that labels constituted hearsay because they were admitted to prove the truth of the matter asserted, i.e., to prove that the various containers contained the ingredients listed. The State also seemingly concedes that all but two of the

challenged exhibits do not meet the hearsay exception under Indiana Evidence Rule 803(17) because they were opened and do not meet the second foundational requirement of Reemer, which requires some evidence that the contents of the product remained as the 10

manufacturer packaged them. 2 The State correctly contends that the photographs of the unopened bottle of hydrogen peroxide (Exhibits 78 and 79) and the two unopened, shrink-wrapped heat source canisters (Exhibit 17) were properly admitted under the exception in Rule 803(17) because they were in the same condition as when the manufacturer packaged them. The State, however, asserts that even if the remaining exhibits were erroneously admitted, such error was harmless. Errors in the admission of evidence, including hearsay, are to be disregarded as harmless unless they affect the substantial rights of a party. Ind. Trial Rule 61; Sparkman v. State, 722 N.E.2d 1259, 1263 (Ind. Ct. App. 2000). In determining whether error in the introduction of evidence affected a defendant's substantial rights, we must assess the probable impact of the improperly admitted evidence upon the jury. Id. When there is substantial independent evidence of guilt such that it is unlikely that the erroneously admitted evidence played a role in the conviction or where the offending evidence is merely cumulative of other properly admitted evidence, the substantial rights of the party have not been affected, and we deem the error harmless. Smith v. State, 839 N.E.2d 780, 784 (Ind. Ct. App. 2005). Assuming without deciding that the remaining exhibits did not meet Reemer's second foundational requirement, 3 we agree with the State that any error in the admission

Robertson did not challenge the first foundational requirement of Reemer at trial and does not do so on appeal. We question whether Reemer's second foundational requirement applies to evidence that is introduced to prove a charge other than a possession of a precursor charge, such as dealing methamphetamine by manufacturing. In Forler, we noted that the Reemer Court "seem[ed] to have
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of these exhibits was harmless. First, in regard to the possession of precursors charge, the State charged Robertson with possession of the following precursors: pseudoephedrine hydrochloride, hydrogen peroxide, iodine, and sodium hydroxide. Robertson does not challenge the evidence that he possessed pseudoephedrine hydrochloride, 4 and we have concluded that the trial court properly admitted the unopened bottle of hydrogen peroxide. Indeed, in his reply brief, Robertson acknowledges that these two precursors are sufficient to overcome the harmless error test. See Appellant's Reply Brief at 2. Thus, even when excluding any evidence regarding Robertson's possession of iodine and sodium hydroxide, there was substantial evidence that he possessed two precursors with intent to manufacture. Next, in regard to the dealing in methamphetamine charge that was based on manufacturing, we also conclude that any error in the admission of the challenged exhibits was harmless. Even without the challenged exhibits, the State introduced

evidence that deputies found numerous items associated with the red phosphorous

placed a second foundational requirement for the admissibility of a product label as evidence that the defendant possessed an ingredient listed on the label." Forler, 846 N.E.2d at 270 (emphasis added). To be sure, in both Reemer and Forler, the defendants were convicted only of possession of precursors, and the Courts in those cases reviewed the hearsay exception under Rule 803(17) against the backdrop of such a possession of precursors conviction. In Forler, we commented that this second foundational requirement "ma[de] sense, because it is conceivable that the contents could be altered or replaced after opening of the package or container." Id.. Indeed, the second foundational requirement does make sense when the State seeks to admit an exhibit intended to prove that a defendant possessed a precursor indicated on a label. However, for a dealing in methamphetamine by manufacturing charge, where the State is required to prove that a defendant manufactured methamphetamine or was in the process of manufacturing methamphetamine, it does not seem to make sense because the State is trying to prove that the defendant already used the precursors or other items associated with the manufacturing process. The State showed that Robertson possessed pseudoephedrine hydrochloride by introducing Exhibits 86 and 87--a photograph of two unopened boxes of nasal decongestant and the actual boxes themselves, respectively--and Robertson did not object to the admission of these exhibits.
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method of manufacturing methamphetamine, as well as items associated with the packaging and ingestion of methamphetamine, in Robertson's truck and house, and two deputies testified that the items found indicated that Robertson was actively manufacturing methamphetamine. The items found by the deputies include: a copious amount of matchbook covers that contained the matches but had the strike plates, which contain red phosphorous, removed; unopened boxes of nasal decongestant containing pseudoephedrine hydrochloride; hydrogen peroxide; HCL generators; an unopened gallon can of acetone; new camping-sized tanks of propane fuel; an unopened heat source canister; a full aerosol can of De-Icer, which contained methyl alcohol; electric hot plates; used coffee filters; a glass condenser tube with plastic tubing; boxes of baggies; baggies with the corners cut; digital scales; a butane torch; gloves; glass tubes; glass drug paraphernalia pipes; and numerous glass Pyrex dishes and jars, some of which contained various colors of liquids. Furthermore, many of the challenged exhibits were merely cumulative of the above properly admitted evidence. Accordingly, we conclude that any error in the admission of the challenged exhibits was harmless error. Robertson next argues that the evidence was insufficient to support his convictions for dealing in methamphetamine and possession of chemical reagents or precursors with intent to manufacture. We will review each in turn. When reviewing claims of insufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh'g denied. Rather, we look to the evidence and the reasonable inferences therefrom that support the verdict. Id. We will affirm the conviction if there exists 13

evidence of probative value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Id. At the time of Robertson's crimes, Indiana Code

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