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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. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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