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Ephedrine database allowable under business record hearsay exception

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The Indiana Court of Appeals held Thursday that a National Precursor Log Exchange report documenting the purchases of ephedrine and pseudoephedrine by a defendant are allowed into evidence under the business record exception to the hearsay rule.

In Jeffrey Embrey v. State of Indiana, 82A01-1211-CR-494, Jeffrey Embrey was 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 after U.S. Marshal’s Fugitive Task Force executed a warrant on a person believed to be living where Embrey lived. The officers found evidence of meth manufacturing and that Embrey and his child lived in the home.

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. The report introduced at Embrey’s trial showed all his purchases of the drugs in the month prior to his arrest and noted that he had been refused sales several times.

The computerized NPLEx database is maintained by Appriss, Inc. Embrey argued that the NPLEx report shouldn’t have been admitted because James Acquisto, the custodian of records for Appriss, didn’t have firsthand knowledge of the recorded transactions.

“We conclude that the NPLEx report is imbued with an independent indicia of trustworthiness, and, as such, qualifies as a business record,” Judge Cale Bradford wrote for the court. “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.”

“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,” he continued.

The judges also found sufficient evidence supported that the child found in the home by the officers was Embrey’s child and affirmed his neglect of a dependent conviction.



 

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  • COA rewrites law
    Here we go again, the court of appeals, thinks, that they have the right to re write the law, to suit their fancy. Heresay is heresay, regardless of how reliable the source. Unless there is first hand knowledge, it is heresay and if heresay is inadmissable in one case it is inadmissable in all cases. But what are you going to do? The supreme court rules a law is unconstitutional, then later says it is constitutional. Then, you have justice scalia, saying, it is okay to execute an innocent person. I wonder how many people think he would say that if he was the innocent person facing execution!

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  1. Ah ha, so the architect of the ISC Commission to advance racial preferences and gender warfare, a commission that has no place at the inn for any suffering religious discrimination, see details http://www.theindianalawyer.com/nominees-selected-for-us-attorney-in-indiana/PARAMS/article/44263 ..... this grand architect of that institutionalized 14th amendment violation just cannot bring himself to utter the word religious discrimination, now can he: "Shepard noted two questions rise immediately from the decision. The first is how will trial courts handle allegations of racism during jury deliberations? The second is does this exception apply only to race? Shepard believes the exception to Rule 606 could also be applied to sexual orientation and gender." Thus barks the Shepard: "Race, gender, sexual orientation". But not religion, oh no, not that. YET CONSIDER ... http://www.pewforum.org/topics/restrictions-on-religion/ Of course the old dog's inability to see this post modern phenomena, but to instead myopically focus on the sexual orientation issues, again betrays one of his pet protects, see here http://www.in.gov/judiciary/admin/files/fair-pubs-summit-agenda.pdf Does such preference also reveal the mind of an anti-religious bigot? There can be no doubt that those on the front lines of the orientation battle often believe religion their enemy. That certainly could explain why the ISC kicked me in the face and down the proverbial crevice when I documented religious discrimination in its antechambers in 2009 .... years before the current turnover began that ended with a whole new court (hallelujah!) in 2017. Details on the kick to my face here http://www.wnd.com/2011/08/329933/ Friends and countrymen, harbor no doubt about it .... anti-religious bias is strong with this old dog, it is. One can only wonder what Hoosier WW2 hero and great jurist Justice Alfred Pivarnik would have made of all of this? Take this comment home for us, Gary Welsh (RIP): http://advanceindiana.blogspot.com/2005/05/sex-lies-and-supreme-court-justices.html

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