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,
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Samuel J. Dayton Deputy Attorney General
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.
and Procedural History
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.
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
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.
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.
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
At the time of offense, Ind. Code § 35-48-4-4.6 provided
(a) A person who knowingly or intentionally:
(2) finances the manufacture of;
(4) distributes; or
(5) possesses with intent to manufacture, finance
the manufacture of, ...