State of Iowa v. Brock McRey Burgdorf , 861 N.W.2d 273 ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 13-1827
Filed December 24, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
BROCK MCREY BURGDORF,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Warren County, Richard B. Clogg,
Judge.
The defendant appeals from a conviction of conspiracy to manufacture
methamphetamine. REVERSED AND REMANDED.
Patrick W. O’Bryan of O’Bryan Law Firm, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney
General, John Criswell, County Attorney, and Douglas A. Eichholz, Assistant
County Attorney, for appellee.
Heard by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
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VAITHESWARAN, J.
In this appeal from a judgment and sentence for conspiracy to
manufacture methamphetamine, the primary issue is whether the State
established a foundation for the admission of electronic pseudoephedrine
tracking records.
I. Background
Pseudoephedrine is the active ingredient in certain over-the-counter cold
medications. See State v. Heuser, 661 N.W.2d 157, 164 (Iowa 2003).
Pseudoephedrine also is a key ingredient in methamphetamine. See Iowa Code
§ 124.212(4)(c) (2013) (listing pseudoephedrine as a precursor to
methamphetamine).
In 2005, the legislature limited the amount of pseudoephedrine a person
could purchase within a twenty-four-hour period and within a thirty-day period.
See id. § 124.213. The legislature also restricted retailers from selling more than
the amounts set forth in section 124.213 and imposed notification and monitoring
requirements on the retailers. See id. § 126.23A. Later, the legislature
strengthened the monitoring requirements and authorized the Governor’s Office
of Drug Control Policy to create a “real-time electronic repository to monitor and
control the sale of . . . products containing any detectable amount of
pseudoephedrine.” See id. §§ 124.212B(1); .101(21); see also id. § 124.212A.
The legislature charged the office with adopting rules to administer the provision.
See id. § 124.212B(8).
The office promulgated rules, as directed. See Iowa Admin. Code rs.
657–100.1 to –100.5. The rules require all pharmacies dispensing
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pseudoephedrine without a prescription to participate in the electronic
pseudoephedrine tracking system. See Iowa Admin. Code r. 657–100.3. The
rules afford law enforcement officers access to the data but reaffirm the statutory
delegation of control over the repository to the Governor’s Office of Drug Control
Policy. See Iowa Admin. Code rs. 657–100.1, .4(2).
According to the State, Brock Burgdorf became involved in a scheme to
circumvent these laws and regulations. Under the scheme, a known
methamphetamine manufacturer enlisted a team of methamphetamine users to
purchase allowed quantities of pseudoephedrine in exchange for a portion of the
completed drug. The State charged Burgdorf and others with conspiracy to
manufacture methamphetamine. See Iowa Code §§ 124.401(1)(b)(7), .413.
Before trial, the prosecutor expressed an intent to introduce records
obtained from the electronic pseudoephedrine tracking system, also known as
the National Precursor Log Exchange System, or NPLEx. Burgdorf’s attorney
filed a motion in limine seeking to exclude the documents. The district court
overruled the motion, reasoning the documents would likely fall within the
business records exception to the rule prohibiting admission of hearsay
evidence. See Iowa Rs. Evid. 5.801, .802.
At trial, the State began by eliciting general testimony about NPLEx
records from a special agent with the Iowa Department of Public Safety. In the
midst of his testimony, the State moved to amend the minutes of evidence to add
a witness who would testify about specific NPLEx records pertaining to the
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involvement of Burgdorf and his claimed coconspirators. The district court
granted the belated motion.1
The State called a sergeant with the Army National Guard, who offered
thirteen NPLEx exhibits as well as a fourteenth “summary” exhibit. Burgdorf’s
attorney strenuously objected on several grounds, including lack of foundation
and hearsay. The district court overruled the objections. Following trial, a jury
found Burgdorf guilty of conspiracy to manufacture methamphetamine.
Burgdorf raises several issues on appeal, one of which we find dispositive:
the absence of proper authentication or foundation for admission of the NPLEx
records. Certain other issues will be addressed to the extent they bear on this
issue.
II. Authentication, Foundation of NPLEx Records
Iowa Rule of Evidence 5.901 requires authentication or identification of
documents as a condition precedent to admissibility. This requirement “is
satisfied by evidence sufficient to support a finding that the matter in question is
what its proponent claims.” Iowa R. Evid. 5.901. The rule sets forth several
examples of conforming evidence, including the following:
(1) Testimony of witness with knowledge. Testimony that a
matter is what it is claimed to be.
....
(7) Public records or reports. Evidence that a writing
authorized by law to be recorded or filed and in fact recorded or
filed in a public office, or a purported public record, report,
1
Burgdorf challenges the court’s ruling. Because Bergdorf knew of the records from the
outset, we conclude he was not prejudiced by the district court’s grant of the motion.
See State v. Wells, 522 N.W.2d 304, 307 (Iowa Ct. App. 1994) (“Prejudice does not
arise simply because an amendment to the minutes is allowed. Prejudice generally
looks to the existence of some legitimate surprise visited upon the defendant which
undermines an aspect of the defense to the charge or renders defendant’s evidence
inapplicable.”).
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statement, or data compilation, in any form, is from the public office
where items of this nature are kept.
Iowa R. Evid. 5.901(b) (emphasis added). Rule 5.902 enumerates certain self-
authenticating documents, such as “domestic public documents under seal,”
certified “domestic public documents not under seal,” “certified copies of public
records,” and “certified domestic records of regularly conducted activity.” See
Iowa R. Evid. 5.902(1), (2), (4), (11). Specifically, subsection 4 provides:
Certified copies of public records. A copy of an official record or
report or entry therein, or of a document authorized by law to be
recorded or filed and actually recorded or filed in a public office,
including data compilations in any form, certified as correct by the
custodian or other person authorized to make the certification, by
certificate complying with rule 5.902(1), (2), or (3) or complying with
any Act of Congress or rule prescribed by the United States
Supreme Court pursuant to statutory authority, or statutes of Iowa
or any other state or territory of the United States, or rule
prescribed by the Iowa Supreme Court.
Iowa R. Evid. 5.902(4). Subsection 11, pertaining to business records, requires
a written declaration of its custodian or other qualified person . . .
certifying that the record—
(A) was made at or near the time of the occurrence of the
matters set forth by, or from information transmitted by, a person
with knowledge of those matters;
(B) was kept in the course of the regularly conducted activity;
and
(C) was made by the regularly conducted activity as a
regular practice.
Iowa R. Evid. 5.902(11). The subsection further requires advance notice of the
declaration. See Iowa R. Evid. 5.902(11).
Burgdorf contends the NPLEx exhibits were not admitted “by anyone who
may have actually entered the data from which the logs were compiled, nor by
anyone who was an actual custodian of the records.” In his view, these records
lacked “proper authentication and foundation” generally or as business records.
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A ruling on a foundation objection usually is reviewed for an abuse of discretion.
See State v. Musser, 721 N.W.2d 734, 750 (Iowa 2006). The presence or
absence of a foundation for the admission of business records is reviewed for
errors of law. State v. Reynolds, 746 N.W.2d 837, 841 (Iowa 2008).
The State did not call anyone from the Governor’s Office of Drug Control
Policy to authenticate or lay a foundation for the NPLEx records. Nor did the
State obtain a certification from the office stating the proffered records were what
they purported to be. The two witnesses who were called admitted to lacking
foundational knowledge of the NPLEx records. The special agent essentially
conceded he had nothing to do with culling the NPLEx records. The sergeant
acknowledged he was not a custodian of the thirteen NPLEx exhibits nor were
they records he kept in the ordinary course of business. See id. at 842-43
(noting State failed to meet all requirements of business records exception
foundation where it failed to call anyone with knowledge of how Federal Reserve
reports were generated); State v. Warick, No. 13-1396, 2014 WL 3511875, at *1
(Iowa Ct. App. July 16, 2014) (noting foundation for NPLEx exhibits was partially
established through a records custodian attestation). The sergeant also admitted
the information contained in the records was input by someone other than him—
“a pharmacist, a pharmacist tech, or a person trained to operate the system in
various stores and pharmacies.” The State failed to call a pharmacist or retailer
to testify about this process or procedure. See Warick, 2014 WL 3511875, at *1
(noting the State called a pharmacist to testify “regarding the process and
procedure by which a covered retailer obtained and recorded identification
information and a signature at the point of sale and the process and procedure
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by which that information was placed into the electronic repository”); State v.
Quang, No. 12-0739, 2013 WL 4504934, at *3-4 (Iowa Ct. App. Aug. 21, 2013)
(concluding the State “presented sufficient evidence to show the exhibit was what
the State purported it to be” where the State offered the testimony of sixteen
pharmacists). Absent compliance with these “conditions precedent,” the
documents were inadmissible either generally or as business records. See Iowa
R. Evid. 5.901.
We turn to the prejudice component. See Reynolds, 746 N.W.2d at 843-
44. This component is drawn from rule 5.103(a), which states, “Error may not be
predicated upon a ruling which admits or excludes evidence unless a substantial
right of the party is affected.” Iowa R. Evid. 5.103(a). We presume prejudice and
reverse unless the record affirmatively establishes otherwise. State v. Sullivan,
679 N.W.2d 19, 30 (Iowa 2004). The record may affirmatively establish
otherwise if the properly admitted evidence is overwhelming. See id. at 30-31.
The record also may affirmatively establish otherwise if substantially the same
evidence is already in the record. State v. Brown, 656 N.W.2d 355, 361 (Iowa
2003).
This record does not affirmatively establish otherwise. The State heavily
relied on the NPLEx records to establish a pattern of sales in furtherance of a
conspiracy to manufacture methamphetamine. The pattern was not discernable
from other duly-admitted evidence. While coconspirators implicated Burgdorf in
the scheme, they did not replicate the precise times and amounts of
pseudoephedrine purchases contained in the NPLEx records. Nor did a GPS
tracking device placed on the methamphetamine manufacturer’s vehicle do more
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than identify possible players in the scheme and document stops outside retail
establishments.
We are left with video recordings showing Burgdorf purchasing
pseudoephedrine at Wal-Mart. These recordings were admitted through the
special agent, over defense counsel’s foundational objection. The admission of
these recordings is raised as a separate assignment of error. The recordings
were inadmissible without foundational testimony from a Wal-Mart
representative. See State v. Deering, 291 N.W.2d 38, 39 (Iowa 1980) (requiring
“preliminary proof that the picture projected from the film be an accurate
reproduction of the event which it depicts”). Accordingly, we decline to consider
the video recordings in determining whether Burgdorf was prejudiced by the
admission of the NPLEx records.
We conclude the NPLEx records were not cumulative of other evidence
contained in the record and the other evidence was far from overwhelming. In
other words, Burgdorf’s substantial rights were affected by the admission of the
NPLEx records and the summary. The erroneous admission of these exhibits
requires reversal.
The only remaining question is whether we reverse and remand for a new
trial or whether we reverse for dismissal. The answer to this question turns on
how we resolve Burgdorf’s additional challenge to the sufficiency of the evidence
supporting the jury’s finding of guilt. If Burgdorf’s challenge is successful,
double-jeopardy principles would preclude retrial. See State v. Dullard, 668
N.W.2d 585, 597 (Iowa 2003). Accordingly, we proceed to this issue.
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III. Sufficiency of the Evidence
“In determining whether retrial is permissible all the evidence admitted
during the trial, including erroneously admitted evidence, must be considered.”
Id. at 597. Our review is for substantial evidence. State v. Hennings, 791
N.W.2d 828, 832-33 (Iowa 2010).
The jury was instructed the State would have to prove the following
elements of conspiracy to manufacture methamphetamine:
1. Between August 7, 2010 and October 20, 2012, the
Defendant agreed with one or more persons that:
a. One or more of them would manufacture
methamphetamine; or
b. Attempt to manufacture methamphetamine.
2. The Defendant entered into the agreement with the intent
to promote or facilitate the manufacture of methamphetamine.
3. The Defendant or his coconspirators committed an overt
act.
4. The coconspirators were not law enforcement agents
investigating the manufacture of methamphetamine or assisting law
enforcement agents in the investigation when the conspiracy
began.
Burgdorf contends “there was never a showing [of] an agreement to engage in
the manufacture of methamphetamine by this defendant” or that he “intended to
participate in the actual manufacturing of methamphetamine.”
The special agent testified to the scheme of collecting pseudoephedrine
following the implementation of the tracking system. He also identified a known
methamphetamine manufacturer and the manufacturer’s affiliation with other
individuals who purchased pseudoephedrine. He corroborated Burgdorf’s
involvement with the NPLEx records and Wal-Mart video recordings as well as
GPS tracking of the methamphetamine manufacturer’s vehicle. Additionally, two
coconspirators testified against Burgdorf. While the testimony of one was
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severely impeached, credibility determinations are ultimately for the fact finder.
State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006).
Considering the entire record, including the erroneously admitted
evidence, we discern substantial evidence to support the jury’s finding of guilt.
Accordingly, dismissal is not warranted.
IV. Disposition
The erroneous admission of the NPLEx records requires reversal and
remand for a new trial.
REVERSED AND REMANDED.