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Judges disagree on chemical possession charge

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A panel of Indiana Court of Appeal judges disagreed as to whether a defendant who stole anhydrous ammonia with the intent of selling it to a third party in the future to make methamphetamine, but who never actually sold the chemical, could be charged with possession with intent to manufacture methamphetamine.

The majority of judges said no and affirmed the trial court grant of Dustin Prater's motion to correct error and vacation his conviction of illegal possession of anhydrous ammonia in State of Indiana v. Dustin Prater, No. 08A02-0904-CR-309. Judge Cale Bradford dissented because he believed anyone who possess the chemical for purposes of manufacturing methamphetamine, even if they intend for someone else to make it, is covered under Indiana Code Section 35-48-4-14.5(c).

I.C. Section 35-48-4-14.5(c) requires an individual in possession of anhydrous ammonia have the personal "intent to manufacture methamphetamine or amphetamine" in order to commit a Class D felony under that statute. Prater was charged and convicted under this statute.

The majority read the statute to mean the person who possesses the chemical must also personally have the intent to use the anhydrous ammonia to manufacture methamphetamine to be charged under subsection (c).

"Here, it is clear that the General Assembly sought a balance between not subjecting citizens who merely possess anhydrous ammonia to possible prosecution while, at the same time, seeking to prohibit the nefarious uses of that chemical," wrote Judge Edward Najam for the majority.

The majority found their reading of subsection (c) to be supported by subsection (g) of the statute, which says it is not the mere possession of the chemical that is criminal but the sale, transfer, distribution, or furnishing of it to another person with the knowledge or intent that the recipient will use the chemical "regent or precursor to manufacture" methamphetamine.

If the General Assembly had intended that mere possession of anhydrous ammonia is a crime, it wouldn't have included the words "with the intent to manufacture" in the statute, wrote Judge Najam. The General Assembly could have included the language "intend to," but did not.

Judge Bradford wrote in his dissent that he couldn't conclude that a person whose task it is to collect the chemical to make methamphetamine is somehow immunized from criminal liability if he doesn't personally involve himself in the manufacturing process.

"Given the obvious intent of the General Assembly to criminalize both the possession and the sale or transfer of ammonia for methamphetamine purposes, I am unwilling to permit Prater's actions to fall through the cracks," he wrote.

Judge Bradford would reverse the grant of Prater's motion to correct error and the vacation of his sentence.

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  1. Can I get this form on line,if not where can I obtain one. I am eligible.

  2. What a fine example of the best of the Hoosier tradition! How sad that the AP has to include partisan snark in the obit for this great American patriot and adventurer.

  3. Why are all these lawyers yakking to the media about pending matters? Trial by media? What the devil happened to not making extrajudicial statements? The system is falling apart.

  4. It is a sad story indeed as this couple has been only in survival mode, NOT found guilty with Ponzi, shaken down for 5 years and pursued by prosecution that has been ignited by a civil suit with very deep pockets wrenched in their bitterness...It has been said that many of us are breaking an average of 300 federal laws a day without even knowing it. Structuring laws, & civilForfeiture laws are among the scariest that need to be restructured or repealed . These laws were initially created for drug Lords and laundering money and now reach over that line. Here you have a couple that took out their own money, not drug money, not laundering. Yes...Many upset that they lost money...but how much did they make before it all fell apart? No one ask that question? A civil suit against Williams was awarded because he has no more money to fight...they pushed for a break in order...they took all his belongings...even underwear, shoes and clothes? who does that? What allows that? Maybe if you had the picture of him purchasing a jacket at the Goodwill just to go to court the next day...his enemy may be satisfied? But not likely...bitterness is a master. For happy ending lovers, you will be happy to know they have a faith that has changed their world and a solid love that many of us can only dream about. They will spend their time in federal jail for taking their money from their account, but at the end of the day they have loyal friends, a true love and a hope of a new life in time...and none of that can be bought or taken That is the real story.

  5. Could be his email did something especially heinous, really over the top like questioning Ind S.Ct. officials or accusing JLAP of being the political correctness police.

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