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Neal v. State

Court of Appeals of Indiana

August 15, 2019

Jimmy Tyree Neal, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the Marshall Superior Court The Honorable Robert O. Bowen, Judge, Trial Court Cause No. 50D01-1807-F2-13

          Attorney for Appellant Kimberly A. Jackson Indianapolis, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana

          BROWN, JUDGE.

         [¶1] Jimmy Neal appeals and claims that the evidence is insufficient to sustain his convictions for dealing in or possessing a look-alike substance and dealing in marijuana as level 5 felonies, and that the trial court abused its discretion in ordering him to pay certain public defender fees and medical expenses. We affirm in part, reverse in part, and remand.

         Facts and Procedural History

         [¶2] At approximately 9:30 p.m. on June 13, 2018, Bremen Police Sergeant Trent Stouder was in an unmarked police vehicle and observed a GMC Jimmy which had an interim plate with a lightly-tinted cover over it. Sergeant Stouder could not read the plate, moved his police vehicle into a position so that he could see the plate number, and ran a check. The results identified the owner as Neal and indicated he did not have a valid license, and Sergeant Stouder activated his vehicle's overhead lights and initiated a traffic stop. Upon approach, Sergeant Stouder noticed an odor of marijuana and that Neal had glassy eyes and was slow of speech. At some point, Neal admitted to Sergeant Stouder that he had smoked marijuana before entering his vehicle. Other law enforcement arrived at the scene, and Neal and his female passenger exited the vehicle. Neal admitted smoking marijuana and taking ecstasy daily. Officers discovered two plastic bags in the center console of the vehicle which contained multiple individually-packaged pills. The pills were pink, green, or orange in color, were triangular in shape, and were packaged individually into small ziplock baggies. Many of the baggies had rows of green leaf emblems on them. Officer Stouder believed the pills were ecstasy. Officers further discovered marijuana, multiple cell phones, numerous plastic bags, a scale, and a portable safe. A laboratory report dated November 27, 2018, states that testing revealed that the green plant material was marijuana and that the total weight was 73.02 grams. The report further states that there were fifty-eight pink, three green, and two orange triangular shaped and scored tablets and that testing revealed that the pills contained caffeine.

         [¶3] The State charged Neal as amended with: Count I, dealing or possessing a look-alike substance as a level 5 felony; Count II, dealing in marijuana as a level 5 felony; Count III, operating a vehicle with a schedule I or II controlled substance or its metabolite in the body as a class C misdemeanor; Count IV, improper display of license plate as a class C infraction; and Count V, no operator's license in possession as a class C infraction. It also filed a notice of intent to seek an enhanced penalty on Count II to raise the offense to a level 5 felony based on prior convictions in Wisconsin. The court held a bench trial and found Neal guilty on Counts I, II, and III and that judgment would be entered against him on Counts IV and V. With respect to Count I, the court stated "there was a quantity of those pills that were found," they were "individually wrapped," "they are a look-alike drug," and "[m]aybe there weren't an[y] comparisons, but you don't have to take [] a leap of logic to assume that those are and were intended to be at one point passed off as drugs, so I'm going to find that you are guilty of Count I." Transcript Volume II at 94. The court sentenced him to six years on Count I, six years on Count II, and sixty days on Count III, to run concurrently. The court's written order states

          Neal is required to pay a public defender fee of $250 and that he "shall reimburse Marshall County for all medical care expenses incurred by the County in providing medical care to [him] pursuant to IC 11-12-5-7." Appellant's Appendix Volume II at 7.

         Discussion

         I.

         [¶4] The first issue is whether the evidence is sufficient to sustain Neal's convictions. When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the factfinder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. Id. Appellate courts, when confronted with conflicting evidence, must consider the evidence most favorable to the trial court's ruling. Id. We will affirm unless no reasonable factfinder could find the elements of the crime proven beyond a reasonable doubt. Id. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict. Id. at 147.

         A. Count I

         [¶5] Neal first challenges his conviction under Count I. He argues the State offered no proof the discovered pills met the requirements of a look-alike substance under Ind. Code § 35-48-4-4.5(a) and that any number of products are packaged for single use by individuals such as over-the-counter pain relievers, food, and vitamin packs. He argues the record contains no evidence of distribution of the pills. He also argues that the court's finding that the pills were intended to be passed off as drugs is troubling as the statute does not refer to drugs generically but to a controlled substance and that the court appears to have required a lesser standard of proof than required by statute. The State maintains that it demonstrated the caffeine pills qualified as a look-alike substance and that Neal intended to distribute them.

         [¶6] At the time of offense, Ind. Code § 35-48-4-4.6 provided in part:

(a) A person who knowingly or intentionally:
(1) manufactures;
(2) finances the manufacture of;
(3) advertises;
(4) distributes; or
(5) possesses with intent to manufacture, finance the manufacture of, ...

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