GOSHEN — While prosecutors proved Eldon Harmon made methamphetamine in 2009, they failed to give jurors enough information to convincingly show it was more than three grams, the Indiana Court of Appeals ruled Thursday.
The ruling means Harmon faces a shorter prison sentence than the 30 years he’s now serving for manufacturing the drug.
Harmon, 35, formerly of Elkhart, was convicted by a jury in a Goshen courtroom after an Indiana State Police officer testified about how much powdered meth amounts to three grams. While police only found about half that amount of powder — the level which makes producing the drug a class A felony, punishable by up to 50 years in prison — they found much more liquid which could’ve been turned to powder.
That liquid had to be destroyed because of its volatility and couldn’t be kept for the jury to see, according to the appeals court opinion, written by Judge Paul Mathias on behalf of himself and Judge Michael Barnes.
The problem, according to Mathias, is that the state police lab doesn’t measure drugs in liquid form and so jurors didn’t learn how much liquid meth base was there.
Even if they did, it might not be useful because “the more common practice is to measure liquids in units of volume,” and those aren’t covered in the meth laws, Mathias wrote. “Given the fact that reaction vessels containing liquid methamphetamine base, like those at issue in this case, are often found in methamphetamine laboratories, it may be prudent for our General Assembly to consider incorporating an alternative, volume-based measurement for such liquids into the methamphetamine manufacturing statutes.”
In this case, prosecutors had to show the exact weight of the drugs was more than three grams, or they had to show “that the amount of drugs is so large as to permit a reasonable inference that the weight element has been satisfied,” Mathias wrote. The state “presented insufficient evidence to satisfy either standard,” the judges ruled.
A trooper showed jurors the drug and then showed them a sweetener packet and estimated that the weight of the two was about equal, and that just wasn’t precise enough, the judges ruled.
Because of that, Harmon could only be found guilty of manufacturing the drug as a class B felony, which carries a maximum of 20 years in prison.
The judges sent the case back to Elkhart Superior Court 3, telling Judge George Biddlecome to sentence Harmon on the lesser felony.
The third member of the appeals court panel, Judge Nancy Vaidik, agreed with the other two judges on the result of Harmon’s case, but wrote that she thinks the liquid meth base shouldn’t count toward the weight of the drug because it’s not the finished drug.
“Using the word ‘grams’ as the unit of measurement in the statute indicates that it is the solid drug that is intended to be measured, not the liquid that is used to manufacture the drug,” she wrote. Using the liquid as part of the measurement would gut the lesser meth statute, since if police caught people manufacturing even tiny amounts of the drug, “there would never be an instance where the amount of methamphetamine would be less than three grams,” she said.
Vaidik suggested prosecutors should instead use expert witnesses to testify about how much meth would be produced with the ingredients put into the cooking process.