Here, the State presented no forensic evidence establishing the actual, measured weight of Exhibits 15, 16, or 17, or the remaining contents of the three vessels. Instead, the State relied on Trooper Cambpell’s in-court demonstration, in which Trooper Campbell compared the weight of Exhibit 39A, a vial holding the contents of three packets of artificial sweetener, to the weights of Exhibits 15, 16, and 17. Trooper Campbell testified that he believed each vial containing liquid methamphetamine base weighed approximately the same as the vial containing the sweetener, and the members of the jury were permitted to handle the vials and conduct their own comparisons.
This evidence was inadequate to establish the “actual, measured weight” of the vials. See Halsema, 823 N.E.2d at 674. First, as Harmon points out, although the labels on the sweetener packets apparently indicated that their contents weighed one gram, the State presented no evidence to establish the accuracy of the labels. And even if we assume that the sweetener packets were accurately labeled, we cannot conclude that either Trooper Campbell or the members of the jury were physically able to gauge the weight of the vial containing the sweetener versus the weight of the vials containing liquid methamphetamine base with sufficient accuracy to constitute proof beyond a reasonable doubt. As Harmon notes, Trooper Campbell and the jury were essentially permitted to act as “human scales” to determine the weight of the samples of liquid methamphetamine base—and there is simply no way to assess the accuracy of their conclusions. Moreover, Trooper Campbell was unable to testify that Exhibits 15, 16, and 17 each weighed precisely the same as Exhibit 39A. Rather, he indicated that Exhibit 15 weighed “probably close to the same” as Exhibit 39A, that Exhibits 16 and 39A were “approximately” the same weight, and Exhibits 17 and 39A “compared in weight.” Tr. p. 492. For all of these reasons, we hold that the State presented insufficient evidence to constitute proof beyond a reasonable doubt of the “actual, measured weight” of the liquid methamphetamine base. See Halsema, 823 N.E.2d at 674.
Nor can we conclude that the State introduced sufficient evidence to establish that the quantity of liquid methamphetamine base was so large as to permit a reasonable inference that the weight element of the charge had been established. See id. We acknowledge that Trooper Campbell testified that the vessels recovered from the trunk of Fisher’s car contained far more liquid methamphetamine base than that contained in xhibits 15, 16, and 17—indeed, Trooper Campbell indicated that the sample taken from the thermos was only a “small portion” of the liquid it contained, and that he could have taken ten to twenty more samples from each of the two plastic bottles before draining them. Tr. pp. 489-91. But it should be noted that the samples contained in Exhibits 15, 16, and 17 are quite small; photographs of the exhibits show that each vial is less than half full. Accordingly, the fact that Trooper Campbell could have taken many more samples of comparable size does not necessarily establish that the vessels contained an especially large amount of methamphetamine base.
Nor do the photographs of the vessels introduced into evidence at trial support a conclusion that the amount of liquid methamphetamine was so great as to permit a reasonable inference that the weight element of the offense had been satisfied. State’s Exhibit 38 depicts the two plastic bottles recovered from the trunk of Fisher’s car. The bottles are the same size, and appear to be beverage containers. Both bottles are approximately half-full. The contents of both bottles consist of roughly equal portions of white or off-white powdery sludge and clear or blue liquid. State’s Exhibit 39 depicts the thermos. The thermos is opaque, and part of a plastic freezer bag can be seen protruding from its top. However, due to the angle of the photograph, it is impossible to tell how much (if any) liquid the thermos and/or bag contains.
We acknowledge that in Halsema, our supreme court gave virtually no guidance as to just how much of a drug is required to establish that the quantity is large enough to permit a reasonable inference that the weight element of a drug offense has been satisfied absent evidence of the drug’s actual, measured weight. Although we decline to set forth a general rule concerning the threshold amount required to permit such an inference, we are not satisfied that the threshold was met here. Because the State failed to present evidence of the actual, measured weight of the liquid methamphetamine base or to demonstrate that the quantity of the liquid was so large as to permit a reasonable inference that the weight element of the offense had been met, pursuant to our supreme court’s decision in Halsema, we conclude that the evidence is insufficient to support Harmon’s Class A felony conviction.
The sole basis for elevating Harmon’s offense from a Class B felony to a Class A felony was the weight of the drug. That is, to support the elevation, the State was required to prove beyond a reasonable doubt that Harmon manufactured at least three grams of methamphetamine. The General Assembly’s insertion of a weight requirement into the Class A felony methamphetamine manufacturing statute requires the State to prove the weight of the drug with precision. But here, the State used an unreliable method to establish the weight element of the Class A felony offense. We acknowledge that, for reasons that are not readily apparent, the State Police Laboratory has a policy against weighing liquids. [Footnote omitted.] But there were other, scientific ways the State could have established the actual, measured weight of the samples of liquid methamphetamine base, such as conducting a courtroom demonstration using a balance or scale. Allowing Trooper Campbell and the jury to act as “human scales” was simply not good enough to constitute proof beyond a reasonable doubt.
BARNES, J., concurs.
VAIDIK, J., concurs in result with opinion:
I write separately to address the issues with determining generally the amount of methamphetamine that is involved in the manufacturing in a particular case. When the manufacturing process is complete and the methamphetamine is in either a pure or adulterated state, there is not an issue in determining the weight; the methamphetamine is in its final form and the drug can easily be weighed.
Issues arise, however, when the manufacturing process has not been completed and the methamphetamine is still mixed in with liquid ingredients. Varying methods have been used to determine the actual weight of the methamphetamine produced in this situation; one of those methods is weighing the solid methamphetamine and the liquid ingredients used in the manufacturing process together. . . . Another method is determining the amount of methamphetamine that will be produced using a conversion ratio based on the amount of ephedrine or pseudoephedrine that is present. [Footnote omitted.] . . . .
The majority assumes, but does not hold, that the entire weight of the liquid can be considered when determining the weight of the methamphetamine that Harmon manufactured. Slip op. p. 7 n.2. I find the method of measuring the weight of the methamphetamine and the liquid together to be inherently problematic and to require ascertaining the legislative intent behind the manufacturing-of-methamphetamine statute.
I conclude that the legislature did not intend for the liquid byproduct of the manufacturing process to be included in the measurement of the weight of methamphetamine involved.