FILED
Aug 15 2019, 9:01 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Samuel J. Dayton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jimmy Tyree Neal, August 15, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-174
v. Appeal from the Marshall Superior
Court
State of Indiana, The Honorable Robert O. Bowen,
Appellee-Plaintiff. Judge
Trial Court Cause No.
50D01-1807-F2-13
Brown, Judge.
Court of Appeals of Indiana | Opinion 19A-CR-174 | August 15, 2019 Page 1 of 12
[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
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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
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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
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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,
advertise, or distribute;
a substance described in section 4.5 of this chapter commits a Level 5
felony.
(b) A person may be convicted of an offense under subsection (a)(5) only
if:
(1) there is evidence in addition to the weight of the substance
that the person intended to manufacture, finance the
manufacture of, advertise, or distribute the substance; or
(2) the amount of the substance involved is at least twenty-eight
(28) grams.
*****
(d) In any prosecution brought under this section it is not a defense that
the person believed the substance actually was a controlled
substance. . . .
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(Emphases added) (subsequently amended by Pub. L. No. 80-2019, § 27 (eff.
July 1, 2019)).
[7] Ind. Code § 35-48-4-4.5 provided:
(a) A person who knowingly or intentionally delivers or finances the
delivery of any substance, other than a controlled substance or a drug
for which a prescription is required under federal or state law, that:
(1) is expressly or impliedly represented to be a controlled
substance;
(2) is distributed under circumstances that would lead a
reasonable person to believe that the substance is a controlled
substance; or
(3) by overall dosage unit appearance, including shape, color,
size, markings, or lack of markings, taste, consistency, or any
other identifying physical characteristic of the substance,
would lead a reasonable person to believe the substance is a
controlled substance;
commits dealing in a substance represented to be a controlled
substance, a Level 6 felony.
(b) In determining whether representations have been made, subject to
subsection (a)(1), or whether circumstances of distribution exist,
subject to subsection (a)(2), the trier of fact may consider, in addition
to other relevant factors, the following:
(1) Statements made by the owner or other person in control of
the substance, concerning the substance’s nature, use, or
effect.
(2) Statements made by any person, to the buyer or recipient of
the substance, that the substance may be resold for profit.
(3) Whether the substance is packaged in a manner uniquely used
for the illegal distribution of controlled substances.
(4) Whether:
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(A) the distribution included an exchange of, or demand
for, money or other property as consideration; and
(B) the amount of the consideration was substantially
greater than the reasonable retail market value of the
substance.
(Emphases added) (repealed by Pub. L. No. 80-2019, § 26 (eff. July 1, 2019)).
[8] A person engages in conduct “intentionally” if, when he engages in the
conduct, it is his conscious objective to do so. Ind. Code § 35-41-2-2(a). A
person engages in conduct “knowingly” if, when he engages in the conduct, he
is aware of a high probability that he is doing so. Ind. Code § 35-41-2-2(b).
Intent is a mental state the trier of fact often must infer from the surrounding
circumstances. Vasquez v. State, 741 N.E.2d 1214, 1217 (Ind. 2001).
[9] The evidence most favorable to Neal’s conviction is that numerous pills were
recovered from the center console of his vehicle and that the pills were pink,
green, or orange in color, triangular in shape, and packaged individually into
small ziplock baggies, many of which had green leaf emblems on them.
Sergeant Stouder testified that he was in his seventeenth year with the Bremen
Police Department, had advanced roadside impaired driving enforcement
training pertaining to the use of different types of narcotics and effects, and had
interdiction training. Neal admitted to taking ecstasy daily. Officer Stouder
believed the pills were ecstasy, and he prepared a property record sheet dated
June 13, 2018, stating the evidence included sixty-three individually wrapped
baggies of ecstasy in addition to the bags of marijuana, numerous small plastic
baggies, and a scale.
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[10] In light of the shape, color, size, and overall unit appearance of the pills, and
the manner in which they were packaged as set forth in the record and shown in
the exhibits, we conclude that a reasonable finder of fact could determine that
the pills constituted a substance described in Ind. Code § 35-48-4-4.5. Also, we
presume the trial court knows the law, and we cannot say that, in referring to
“drugs,” the court did not consider the specific statutory elements of the
charged crime. Further, given the number of pills and their packaging,
numerous empty baggies, and scale, the finder of fact could reasonably infer
that Neal possessed the substance with intent to distribute. Based upon the
record, we conclude the State presented evidence of probative value from which
the trier of fact could find beyond a reasonable doubt that Neal committed the
crime charged under Count I. See M.Q.M. v. State, 840 N.E.2d 441, 445 (Ind.
Ct. App. 2006) (noting the respondent represented corn grits to be cocaine and
affirming the respondent’s adjudication under Ind. Code § 35-48-4-4.6); see also
Davis v. State, 791 N.E.2d 266, 270 (Ind. Ct. App. 2003) (“Circumstantial
evidence showing possession with intent to deliver may support a conviction.
Possessing a large amount of a narcotic substance is circumstantial evidence of
intent to deliver. The more narcotics a person possesses, the stronger the
inference that he intended to deliver it and not consume it personally.”), reh’g
denied, trans. denied.
B. Count II
[11] Neal next challenges his conviction for dealing in marijuana as a level 5 felony
under Count II. Ind. Code § 35-48-4-10 provides in part:
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a) A person who:
*****
(2) possesses, with intent to:
(A) manufacture;
(B) finance the manufacture of;
(C) deliver; or
(D) finance the delivery of;
marijuana, hash oil, hashish, or salvia, pure or adulterated;
commits dealing in marijuana, hash oil, hashish, or salvia, a Class A
misdemeanor, except as provided in subsections (b) through (d).
*****
(d) The offense is a Level 5 felony if:
(1) the person has a prior conviction for a drug dealing offense
and the amount of the drug involved is:
(A) at least thirty (30) grams but less than ten (10) pounds
of marijuana; . . . .
[12] Neal claims the State did not show that he had “a prior conviction for a drug
dealing offense” under Ind. Code § 35-48-4-10(d)(1). He argues the State failed
to present evidence that his convictions in Wisconsin are drug dealing offenses
under Indiana law. He argues that, at most, the State proved he is guilty of
dealing in marijuana as a level 6 felony. The State responds that Indiana
considers possession with intent to deliver to be dealing and it is reasonable to
conclude the legislature intended to treat out-of-state convictions similarly.
[13] To the extent we must interpret section (d)(1) of the statute, the primary rule in
statutory construction is to ascertain and give effect to the intent of the
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legislature. Hendrix v. State, 759 N.E.2d 1045, 1047 (Ind. 2001). Neal does not
challenge the evidence that the green plant material found in the vehicle was
marijuana and had a total weight of 73.02 grams. The State presented evidence
of judgments of conviction from Wisconsin showing that Neal was convicted in
April 2010 of “Possess w/Intent-Heroin” as a “Felony F” and of “Possess
w/Intent-Cocaine” as a “Felony G.” State’s Exhibit 22. The judgment and
attached criminal complaint indicate the crimes were violations of Wisc. Stat. §
961.41(1m). The State submitted a copy of Wisc. Stat. § 961.41 to the trial
court for its consideration. The criminal complaint alleged that Neal “did
possess with intent to deliver a controlled substance” with respect to both
charges. Id. Ind. Code § 35-48-4-10 provides that a person commits dealing in
marijuana when the person “possesses, with intent to . . . deliver . . .
marijuana,” and Ind. Code § 35-48-4-1 provides that a person commits dealing
in cocaine or a narcotic drug when the person “possesses, with intent to . . .
manufacture [or] deliver . . . cocaine or a narcotic drug . . . .” Similarly, the
relevant statute in Wisconsin provided that it was unlawful for any person “to
possess, with intent to manufacture, distribute or deliver, a controlled substance
. . . .” Based upon the record, we conclude the State presented evidence of
probative value from which the trial court could find that Neal’s Wisconsin
convictions constituted prior convictions for drug dealing offenses under Ind.
Code § 35-48-4-10(d)(1).
II.
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[14] The next issue is whether the trial court abused its discretion in ordering Neal to
pay public defender fees and medical expenses. As to medical expenses, Neal
argues the court did not give him notice before imposing the expenses, the court
is required to consider an inmate’s ability to pay, he reported no cash or other
assets at his initial hearing, and appellate counsel was appointed for him at
sentencing. The record does not indicate a total amount he is required to pay,
and Neal states has no idea what expenses are being sought. As to public
defender fees, he argues the court abused its discretion by imposing a fee
without a hearing, that he is indigent, and that the court imposed a $250 fee
without indicating the statutory basis for doing so. The State concedes that
there is uncertainty in the record regarding whether Neal is currently able to
pay these fees and requests that this Court remand for further proceedings to
determine his present ability to pay.
[15] The trial court’s order states that Neal shall reimburse Marshall County for all
medical care expenses incurred by the County under Ind. Code § 11-12-5-7, but
does not specify a reimbursement amount. Ind. Code § 11-12-5-7(b) provides
that “a court may order a county jail inmate to reimburse a county for all or a
portion of medical care expenses incurred by the county in providing medical
care to the inmate.” The statute expressly provides: “In determining the
amount of reimbursement that an inmate may be required to pay under
subsection (b), the court shall consider the inmate’s ability to pay.” Ind. Code §
11-12-5-7(d). It also provides that, if a court “orders a county jail inmate to
reimburse a county for medical care expenses under subsection (b), the amount
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of the medical care expenses shall be reduced by the amount of any copayment
the inmate was required to make,” Ind. Code § 11-12-5-7(e), and that, if a
county incurs medical care expenses which are not reimbursed, it shall attempt
to determine the amount that may be paid by a policy of insurance or Medicaid.
See Ind. Code § 11-12-5-7(f). Further, the trial court’s order does not state a
statutory basis for requiring Neal to pay a public defender fee. 1 The court’s
order did not indicate that it had inquired into or determined Neal’s ability to
pay.
[16] In light of the parties’ arguments and the record, we reverse the trial court’s
order that Neal pay a public defender fee of $250 and reimburse Marshall
County for medical expenses paid on his behalf and remand for hearing and
further proceedings.
[17] For the foregoing reasons, we affirm Neal’s convictions and remand for further
proceedings consistent with Part II above.
[18] Affirmed in part, reversed in part, and remanded.
May, J., and Mathias, J., concur.
1
Neal states: “Three statutory provisions – Ind. Code § 35-33-7-6, § 33-40-3-6, and § 33-37-2-3 – address the
imposition of public defender fees.” Appellant’s Brief at 25.
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