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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. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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