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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. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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