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Hall v. State

Court of Appeals of Indiana

December 5, 2019

Jennifer L. Hall, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the Washington Superior Court No. 88D01-1802-F4-173. The Honorable Frank Newkirk, Jr., Judge.

          Attorney for Appellant Ryan D. Bower Bower Law Office, LLC New Albany, Indiana

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

          MATHIAS, JUDGE.

         [¶1] Jennifer Hall ("Hall") was convicted in Washington Superior Court of Level 4 felony aiding the dealing of a narcotic drug. Hall appeals her conviction and argues that the evidence is insufficient to prove that she "manufactured" heroin, the enhancing circumstance that elevated her offense to a Level 4 felony. Hall also argues that the trial court committed fundamental error when it admitted evidence of her prior criminal history and drug use in violation of Evidence Rule 404(b).

         [¶2] Concluding that Hall has not established fundamental error, but that the evidence is insufficient to support her Level 4 felony conviction, we reverse and remand with instructions to vacate Hall's Level 4 felony conviction, enter a judgment of conviction for Level 5 felony dealing, and resentence Hall accordingly.

         Facts and Procedural History

         [¶3] On October 12, 2017, Special Agent Kristi Schumacher ("Agent Schumacher")[1] of the Bureau of Alcohol, Tobacco, Firearms, and Explosives worked with a confidential informant ("CI") to set up a controlled buy for heroin from John Losson ("Losson"). The CI arranged for Agent Schumacher to purchase one gram of heroin for $200.00.

         [¶4] Agent Schumacher and the CI arrived at the prearranged location of the buy, an alley near CVS in Salem, Indiana. Shortly thereafter, a silver vehicle drove into the alley, and Agent Schumacher recognized the driver, Losson. She also noticed a woman, later identified as Hall, sitting in the passenger seat.

         [¶5] Agent Schumacher and the CI walked up to Losson's vehicle on the passenger side. Losson handed a baggie containing heroin to Hall, and Hall handed it to Agent Schumacher. Because the baggie did not contain a gram of heroin, Agent Schumacher gave $140 to Hall. Hall then gave the money to Losson. The agent asked if "the product was good." Tr. p. 64. Losson replied, "oh yeah," and Hall looked at the agent and shook her head yes. Id. The CI then asked Losson if she could buy "go go," i.e. methamphetamine, and Losson replied that he was working on that. Id. The substance in the baggie was later confirmed to be .28 gram of heroin.

         [¶6] On February 23, 2018, Hall was charged with Level 4 felony aiding, inducing, or causing dealing in a narcotic drug. The State alleged that Hall was an accomplice to manufacturing heroin because Losson packaged the drug.

         [¶7] A two-day jury trial commenced on October 16, 2018. Agent Schumacher and Hall were the only witnesses at trial. Both Hall's counsel and the State elicited testimony concerning her prior criminal convictions and her history of drug use.

         [¶8] The jury was given an accomplice liability instruction, and in addition to an instruction on the Level 4 felony offense, the jury was instructed that it could find Hall guilty of the lesser-included Level 5 felony offense. Tr. pp. 140, 142. Hall was found guilty of the Level 4 felony as charged. On December 26, 2018, the trial court ordered her to serve six years in the Department of Correction. Hall appeals her conviction.[2]

         I. Sufficient Evidence of Manufacturing

         [¶9] First, Hall argues that the State failed to prove that she "manufactured" heroin, which elevated her offense from a Level 5 felony to a Level 4 felony. A person who knowingly or intentionally delivers heroin commits a Level 5 felony. See Ind. Code ยง 35-48-4-1(a)(1). However, the offense is a Level 4 felony if "the amount of the drug involved is ...


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