Montgomery v. State
| Decision Date | 11 December 2014 |
| Docket Number | No. 82A01–1404–CR–163.,82A01–1404–CR–163. |
| Citation | 22 N.E.3d 768 |
| Parties | Robin Eugene MONTGOMERY, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Matthew J. McGovern, Anderson, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Between June 25, 2013 and August 24, 2013, Appellant–Defendant Robin Eugene Montgomery purchased a ten-count box of pseudoephedrine every ten days. At some point, officers from the Warrick County Sheriff's Office initiated an investigation into Montgomery's actions, during which the officers came to believe that Montgomery was operating a mobile methamphetamine laboratory. As part of their investigation, officers approached Montgomery at a storage unit located in Vanderburgh County on August 25, 2013. Montgomery attempted to flee from the officers in his vehicle, striking one officer and forcing another to have to dive out of the path of the vehicle. A chasing officer observed Montgomery throw a smoking yellow bag out of the window of his vehicle before Montgomery stopped the vehicle and was apprehended. Officers also discovered numerous items used during the course of the manufacture of methamphetamine in the storage unit, which was rented by Montgomery.
On August 27, 2013, Appellee–Plaintiff the State of Indiana (the “State”) charged Montgomery with numerous crimes, including Class B felony dealing in methamphetamine and Class D felony resisting law enforcement. Following a jury trial, Montgomery was found guilty of these charges. The trial court subsequently sentenced Montgomery to an aggregate twelve-year sentence. On appeal, Montgomery contends that the trial court abused its discretion in admitting certain evidence at trial. Montgomery also contends that the evidence is insufficient to sustain his conviction for Class B felony dealing in methamphetamine. Concluding that the trial court did not abuse its discretion in admitting the challenged evidence and that the evidence is sufficient to sustain Montgomery's conviction, we affirm.
Between June 25, 2013 and August 24, 2013, Montgomery purchased a ten-count box of pseudoephedrine every ten days. At some point, Warrick County Sheriff's officers initiated an investigation into Montgomery's actions and, on August 15, 2013, placed a Global Positioning System (“GPS”) tracker on Montgomery's vehicle. Based on the information learned during the course of their investigation, the officers started to suspect that Montgomery was operating a mobile methamphetamine laboratory.
On August 25, 2013, Warrick County Detective Timothy Pierce received an alert from the GPS tracker that Montgomery's vehicle had left the specific “zone” that Detective Pierce had set for the tracker and had entered Vanderburgh County. Detective Pierce learned that upon entering Vanderburgh County, Montgomery's vehicle went to a storage unit that was rented by Montgomery, left the storage unit, and returned to the storage unit shortly thereafter. Suspecting that Montgomery had transferred the methamphetamine laboratory to the storage unit, Detective Pierce requested assistance from the Evansville Police Department to confront Montgomery. Officers from the two departments met at a local store, drove to Montgomery's storage unit, parked, and began walking toward the storage unit.
While the officers were walking towards the storage unit, Montgomery slowly drove his vehicle out of the storage unit area. Montgomery's vehicle window was down. The officers shined their flashlights at Montgomery's vehicle and instructed him to stop the vehicle. Specifically, Sergeant Richard Bennett of the Warrick County Sherriff's Department made eye-contact with Montgomery and instructed him to stop. Montgomery slowed his vehicle to a near stop. Believing that Montgomery was in the process of complying with the officer's orders, Evansville Police Officer Mark Saltzman crossed in front of Montgomery's vehicle. Montgomery, however, looked at the officers, re-gripped the vehicle's steering wheel, and accelerated “very hard.” Tr. p. 153. Montgomery veered the vehicle towards the officers, striking Evansville Police Officer Shawn Smith in the thigh, causing a bruise, and forcing Officer Saltzman to have to dive out of the path of the van.
Detective Pierce returned to his police vehicle, initiated his lights and siren, and drove after Montgomery. Montgomery sped through a turn, crossing through an oncoming lane of traffic. While pursuing Montgomery, Detective Pierce smelled a chemical odor emanating from Montgomery's vehicle, which he knew, from his training and experience as a police officer, was associated with the manufacture of methamphetamine. Montgomery made another turn and threw a yellow plastic bag out of the driver's side window of his vehicle. Detective Pierce had to swerve to miss the bag, which had smoke coming out of it. Montgomery eventually stopped his vehicle and was apprehended.
Detective Pierce returned to the location where Montgomery had thrown the yellow plastic bag out of his window and found that the bag contained a plastic bottle that still had hydrochloric acid gas smoking from it. Detective Pierce could also hear the gas escaping from the bottle. Evansville Police Detective Patrick McDonald, a member of the Joint Drug Task Force within the Methamphetamine Suppression Unit, was dispatched to the location of the plastic bag. After donning personal protective gear, Detective McDonald opened the bag and discovered a smoking HCL gas generator. Detective McDonald later explained that an HCL generator is “very dangerous,” “extremely hazardous,” and has no legitimate purpose. Tr. pp. 257, 329.
Detective McDonald subsequently conducted a search of Montgomery's storage unit, for which another officer had obtained a search warrant. Detective McDonald discovered various items used in the manufacture of methamphetamine in the storage unit, including: a smoking HCL generator, lye, sulfuric acid, two open instant cold packs containing ammonium nitrate, two one-pound containers of salt, a twenty-ounce soda bottle with a bi-layer liquid—meaning that one level was water and the other was an organic solvent—that strongly smelled of ether, several pieces of burnt foil, an open package of coffee filters, a pipe cutter, and a plastic funnel with white residue. The bi-layer liquid was later tested and found not to contain any controlled substances.
On August 27, 2013, the State charged Montgomery with two counts of Class A felony attempted murder, one count of Class B felony dealing in methamphetamine, and one count of Class D felony resisting law enforcement. Following a three-day trial, a jury found Montgomery guilty of the Class B felony dealing in methamphetamine and Class D felony resisting law enforcement charges. With regard to the Class A felony attempted murder charges, the jury found Montgomery guilty of the lesser-included offenses of Class A misdemeanor criminal recklessness. The trial court subsequently merged the Class A misdemeanor criminal recklessness convictions with Montgomery's conviction for Class D felony resisting law enforcement. The trial court sentenced Montgomery to a ten-year term for the Class B felony dealing in methamphetamine conviction and a two-year term for the Class D felony resisting law enforcement conviction. The trial court ordered that the sentences be served consecutively, for an aggregate term of twelve years, all of which would be served in the Department of Correction. This appeal follows.
Montgomery contends that the trial court abused its discretion in admitting certain evidence at trial.
The admission or exclusion of evidence is entrusted to the discretion of the trial court. Collins v. State, 966 N.E.2d 96, 104 (Ind.Ct.App.2012) (citing Farris v. State, 818 N.E.2d 63, 67 (Ind.Ct.App.2004) ).
Montgomery challenges the admission of the NPLEx records, claiming that the admission of the NPLEx records violated his rights under the Confrontation Clause. For its part, the State argues that the admission of the NPLEx records did not violate Montgomery's rights under the Confrontation Clause. We agree with the State.
Indiana Code section 34–48–4–14.7(e) provides that “[a] person may not purchase drugs containing more than:
In order to enforce these limitations, Indiana Code section 35–48–4–14.7(d) sets forth certain requirements that a retailer must meet if the...
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