Jennifer L. Hall, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
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
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).
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
and Procedural History
On October 12, 2017, Special Agent Kristi Schumacher
("Agent Schumacher") 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
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
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.
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.
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
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
Sufficient Evidence of Manufacturing
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 § 35-48-4-1(a)(1).
However, the offense is a Level 4 felony if "the amount
of the drug involved is ...