ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
WILLIAM W. GOODEN STEVE CARTER
Mt.Vernon, Indiana Attorney General of Indiana
DANIEL JASON KOPP
Deputy Attorney General
COURT OF APPEALS OF INDIANA
STEPHEN JOHN WEST, )
vs. ) No. 65A04-0309-CR-435
STATE OF INDIANA, )
APPEAL FROM THE POSEY SUPERIOR COURT
The Honorable S. Brent Almon, Judge
Cause No. 65D01-0302-FD-97
April 8, 2004
OPINION - FOR PUBLICATION
Stephen John West appeals his conviction for Illegal Possession of Anhydrous Ammonia or
Ammonia Solution. In particular, he argues that during his bench trial the
trial court improperly admitted evidence regarding the use of a scientific test without
first establishing the tests reliability. Additionally, West claims that the evidence is
insufficient to support his conviction. We agree that the test results were
improperly admitted. However, because we find that the evidence is sufficient to
support Wests conviction even without considering the improperly admitted test results, we find
this error to be harmless and affirm.
Facts and Procedural History
At approximately 2:00 a.m. on February 14, 2003, Posey County Sheriffs Deputy Thomas
Latham observed a speeding pickup truck that did not have its license plate
illuminated as required by law. Deputy Latham stopped the truck, which was
being driven by Joni Mattingly and in which West was the sole passenger.
Mattingly informed Deputy Latham that her registration was in the bed of
the truck and asked West to retrieve it for her. As West
was searching the trucks bed for the registration, Deputy Latham observed a two-liter
Mountain Dew bottle with a garden hose attached to it with black electrical
tape. From previous experience, Deputy Latham knew that this type of makeshift
device was used in stealing anhydrous ammonia, which is a precursor in the
manufacture of methamphetamine. Deputy Latham also observed a fire extinguisher on the
ground approximately five feet from the passenger side of the pickup truck.
Because of his involvement with theft of anhydrous ammonia investigations in the past,
Deputy Latham knew that fire extinguishers are often used to transport stolen anhydrous
ammonia. When Deputy Latham asked West about the fire extinguisher, West replied
that he did not know what was in it or from where it
came. The video-recording system in Deputy Lathams patrol car, however, had captured
West throwing the fire extinguisher out the passenger-side window. When Deputy Latham
discharged the fire extinguisher, it emitted a fog similar to what that of
anhydrous ammonia would be if it reacted to the atmosphere. [He] then
picked the nozzle up and brought it close to [his] face and smelled
the odor of what [he] would recognize as anhydrous ammonia. Tr. p.
11. Additionally, a can of starting fluid was found on the seat
in the cab of the truck.
Based on these initial observations, Deputy Latham called Deputy Jimmie Reeves of the
Posey County Narcotics Unit to the scene to perform a Draeger test on
the contents of the fire extinguisher.
The fire extinguisher tested positive for
the presence of anhydrous ammonia. After determining that the fire extinguisher contained
anhydrous ammonia, Deputy Reeves disposed of the fire extinguisher by shooting it.
When Deputy Reeves shot the fire extinguisher, a white cloud appeared above it,
which was consistent with what had happened in the past when Deputy Reeves
disposed of canisters that he knew contained anhydrous ammonia.
The State charged West with Count I, Illegal Possession of Anhydrous Ammonia or
Ammonia Solution as a Class D felony;See footnote and Count II, Storage or Transportation
of Anhydrous Ammonia Illegally as a Class A misdemeanor.See footnote West waived his
right to a trial by jury. At Wests bench trial, Deputy Reeves
testified regarding the Draeger test he performed. West objected, questioning the reliability
of the Draeger test. The trial court reserved ruling on the objection.
Throughout the course of his testimony, Deputy Reeves provided a basic overview
of how the Draeger test works and the training he received concerning the
use of the test. He did not offer any testimony regarding whether
the Draeger test has been or can be empirically assessed; whether the Draeger
test has been subjected to peer review and publication; the known or potential
rate of error; the existence and maintenance of standards controlling the tests operation;
or its general acceptance within the relevant scientific community. Deputy Reeves did
testify, however, that the Drug Enforcement Agency (DEA) utilizes the Draeger test and,
in fact, had trained him on how to use the Draeger testing system.
Deputy Reeves also reported that an environmental clean-up agency provided him with
training as well and that the agency uses the Draeger test to identify
potential chemical hazards. Following the submission of post-trial briefs, the trial court
convicted West of illegal possession of anhydrous ammonia or ammonia solution. This
Discussion and Decision
West raises two issues on appeal. First, he claims that the trial
court erred by admitting evidence of a scientific test without first establishing its
reliability. Second, he alleges that the evidence is insufficient to support his
conviction. We address each issue in turn.
I. Admission of Draeger Test Results
West asserts that the trial court erred by admitting the Draeger test results
because the State failed to establish the tests reliability. Initially, we note
that we review the trial courts decision to admit evidence based on a
scientific process under an abuse of discretion standard. Troxell v. State, 778
N.E.2d 811, 815 (Ind. 2002). In determining whether scientific evidence is reliable,
the trial court must determine whether such evidence appears sufficiently valid or,
in other words, trustworthy to assist the trier of fact. Ford
Motor Co. v. Ammerman, 705 N.E.2d 539, 551 (Ind. Ct. App. 1999) (citing
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590 n.9 (1993)), trans.
denied. In so doing, the trial court must make a preliminary assessment
of whether the reasoning or methodology underlying the testimony is scientifically valid and
whether that reasoning or methodology properly can be applied to the facts in
Though not presuming to set out a definitive checklist or test regarding factors
that bear on the reliability inquiry, the Daubert court outlined five key considerations:
(1) whether the theory or technique at issue can be and has
been tested; (2) whether the theory or technique has been subjected to
peer review and publication; (3) the known or potential rate of error;
(4) the existence and maintenance of standards controlling the techniques operation; and
(5) whether the technique is generally accepted within the relevant scientific community.
Id. Although these considerations are useful, our supreme court has opined, there
is no specific test or set of prongs which must be considered in
order to satisfy Indiana Evidence Rule 702(b). McGrew v. State, 682 N.E.2d
1289, 1292 (Ind. 1997). Rather, reliability may be established by judicial notice
or by sufficient foundation to convince the trial court that the relevant scientific
principles are reliable. Ammerman, 705 N.E.2d at 551. When laying a
sufficient foundation, the focus must be on the principles and methodology behind the
science rather than the conclusions generated. Id.
Based on our review of the record, we are not convinced that the
State met its burden of establishing the reliability of the Draeger test.
First, we note that the trial court did not take judicial notice of
the Draeger test, and could not have, as the reliability of the Draeger
test has not been established under Indiana law. In the absence of
judicial notice, the State must establish a sufficient foundation to convince the trial
court that the relevant scientific principles are reliable. See McGrew, 673 N.E.2d
at 798. The only information elicited from Deputy Reeves regarding the test
concerned his training by an environmental clean-up agency and the DEA and general
information about how he performed the test. While we have previously opined
that the Daubert factors are not controlling, we have recognized their utility in
deciding whether scientific evidence is reliable as required by Indiana Evidence Rule 702(b).
See id. Due to the dearth of evidence regarding (1) the
testing of the Draeger test; (2) whether the Draeger test has been subjected
to peer review and publication; (3) the known or potential error rate of
the Draeger test; (4) the existence and maintenance of standards controlling the Draeger
tests operation; and (5) its general acceptance in the relevant scientific community, we
find that the trial court erred by considering the Draeger test results.
Because the contents of the fire extinguisher were identified as anhydrous ammonia by
means other than just the Draeger test, as explained below, we deem this
error to be harmless.
II. Sufficiency of the Evidence
West next challenges the sufficiency of the evidence in support of his conviction.
To convict a person of illegal possession of anhydrous ammonia or ammonia
solution as a Class D felony, the State must prove that the person
possessed either anhydrous ammonia or ammonia solution and had the intent to manufacture
methamphetamine. I.C. § 35-48-4-14.5(c). In reviewing a sufficiency of the evidence
claim, we neither reweigh the evidence nor assess the credibility of the witnesses.
Iddings v. State, 772 N.E.2d 1006, 1015 (Ind. Ct. App. 2002), trans.
denied. We look to the evidence most favorable to the judgment and
the reasonable inferences to be drawn therefrom. Id. We will affirm
the conviction if there is probative evidence from which a reasonable trier of
fact could have found the defendant guilty beyond a reasonable doubt. Id.
A. Possession of Anhydrous Ammonia
West first attacks the sufficiency of the evidence in support of his possession
of anhydrous ammonia or ammonia solution. In particular, West contends that without
the Draeger test results, the evidence is insufficient to prove that the contents
of the container were anhydrous ammonia. Additionally, he claims that the State
failed to prove that West possessed anhydrous ammonia in its liquid form.
West directs our attention to Livermore v. State, 777 N.E.2d 1154 (Ind. Ct.
App. 2002), to bolster his contention that the evidence in support of his
conviction is insufficient. Livermore, however, is readily distinguishable. Livermore was convicted
of possession of precursors, and we reversed. We reached this decision because
the State failed to proffer any evidence that Livermore actually possessed ether.
Instead, the State merely presented testimony that the arresting officers smelled ether and
recovered four empty cans of starting fluid, which contains ether. Consequently, we
found the evidence to be insufficient to support Livermores conviction.
Conversely, here the deputies recovered a fire extinguisher that was not empty but
instead contained what was determined to be anhydrous ammonia. Drawing on his
experience with the investigation of methamphetamine labs, Deputy Latham identified the substance in
the fire extinguisher as anhydrous ammonia based on its distinctive smell and reaction
with the atmosphere when he partially discharged the fire extinguisher. See Kenner
v. State, 703 N.E.2d 1122, 1126 (Ind. Ct. App. 1999) (recognizing the ability
of trained or experienced law enforcement personnel to detect distinctive odors such as
marijuana). Deputy Lathams conclusion was made independent of and prior to the
performance of the Draeger test. Deputy Latham also recovered a makeshift funnel
from the bed of the truck, which he identified as the type of
instrument that is used to steal anhydrous ammonia.
Additionally, contrary to Wests claim that there was no testimony to allow the
trier of fact to conclude that he possessed anything more than anhydrous ammonia
vapors, Deputy Reeves explained that anhydrous ammonia is a liquid that vaporizes when
exposed to air. Deputy Reeves further indicated that on numerous occasions he
had seen individuals use fire extinguishers for the illegal storage and transport of
anhydrous ammonia. Deputy Reeves also testified that when he went to dispose
of the fire extinguisher by shooting the canister, a white cloud formed, which
was consistent with others he had seen when he disposed of anhydrous ammonia
in a like manner. Although Deputy Reeves did not observe any liquid
spew out when he shot the fire extinguisher, it is reasonable to infer
that the fire extinguisher contained liquid anhydrous ammonia and not just vapors as
West invites us to believe. This inference is based on the cloud
that formed over the canister after Deputy Reeves shot it. Had there
been no liquid anhydrous ammonia inside the fire extinguisher, no cloud would have
formed. We therefore reject Wests attack on his conviction on this ground.
Based on the deputies testimony, we conclude that the State sustained its
burden of proving that West possessed anhydrous ammonia in its liquid form.
B. Intent to Manufacture Methamphetamine
West also argues that the State failed to prove that he intended to
manufacture methamphetamine. Intent is a mental function.
Lush v. State, 783
N.E.2d 1191, 1196 (Ind. Ct. App. 2003), trans. denied. Absent an admission
by the defendant, intent must be determined from a consideration of the defendants
conduct and the natural and usual consequences thereof. Id. The trier of
fact must resort to reasonable inferences based upon an examination of the surrounding
circumstances to determine whether, from the persons conduct and the natural consequences of
what might be expected from that conduct, a showing or inference of the
intent to commit that conduct exists. Id.
As Deputy Latham approached the driver of the pickup truck he had
just stopped, West threw the fire extinguisher out the passenger side of the
vehicle. When Deputy Latham recovered the fire extinguisher from the side of
the road, West denied having any knowledge of what it was or from
where it came. The video-recording system in Deputy Lathams patrol car, however,
had captured West in the act as he attempted to dispose of the
fire extinguisher. The fire extinguisher contained anhydrous ammonia. Anhydrous ammonia is
basically used for two things: fertilizing farm operations and manufacturing methamphetamine. A
can of starting fluid, another precursor in the manufacture of methamphetamine, was also
recovered from the truck. These two precursors, combined with Wests guilty knowledge
as displayed through his attempt to conceal the fire extinguisher containing anhydrous ammonia
and his outright denial of any knowledge of the fire extinguisher even though
he had just thrown it out the trucks window, are sufficient to establish
that West intended to manufacture methamphetamine.
Because we find that there is probative evidence from which a reasonable trier
of fact could have found that West possessed anhydrous ammonia with an intent
to manufacture methamphetamine, we affirm.
SHARPNACK, J., and MATHIAS, J., concur.
Draeger is the manufacturer of the brand of the gas detection
kit utilized by the Posey County Sheriffs Department in this case. The
Draeger test is used to detect the presence of certain chemicals, including anhydrous
ammonia. To conduct the test, the following four steps should be followed:
1. Select the appropriate Draeger Tube for chemical hazard and expected concentration.
2. Open tube and insert in pump.
3. Pull sample through tube.
4. Read concentration directly from the color band on the scale.
If the designated air contaminant is present, it reacts with the chemical reagent
in the tube, producing a color change.
See http://www.afcintl.com/tubemain.htm (last visited Mar.
11, 2004). See also Draeger-Tubes
Pump Brochure, available at http://www.draeger.com/ST/internet/pdf/US/detection/
Ind. Code § 35-48-4-14.5(c)
Ind. Code § 22-11-20-6(b).
Moreover, we note that the deputies observations are admissible as lay
testimony by skilled witnesses because the subject matter of their testimony is not
a matter of scientific principles governed by Indiana Evidence Rule 702(b); rather, it
is a matter of the observations of persons with specialized knowledge. See
Cansler v. Mills, 765 N.E.2d 698, 703 (Ind. Ct. App. 2002), trans. denied;
see also Ind. Evidence Rule 701. As skilled witnesses, the deputies are
permitted not only to testify about their observations, but also testify as to
opinions or inferences that are based solely on facts within their own personal
knowledge. See Cansler, 765 N.E.2d at 703; see also 13 Robert Lowell
Miller, Jr., Indiana Practice § 701.105 at 319-20 (2d 1995). In order
to be admissible under Evidence Rule 701, opinion testimony of a skilled witness
or lay observer must be (a) rationally based on the perception of the
witness and (b) helpful to a clear understanding of the witnesss testimony or
the determination of a fact in issue. Evid. R. 701. Because
the deputies testimony regarding their observations is rationally based on their perception and
is determinative of a fact in issue namely, whether West possessed anhydrous
ammonia we find this testimony is admissible as lay testimony by skilled
witnesses under Indiana Evidence Rule 701.