dissenting.
A curious passage in the record recounts the State's attempt to introduce a photograph depicting defendant-appellant James Conner, one of his acquaintances, and an unidentified man holding a sizeable, recently-caught largemouth bass. Over objection, the trial court admitted the photo, prompting this exchange:
Ronald T. Urdahl [Defense counsel]: James, what does this fish have to do with this case? Can you figure that out?
Allen Demkovich [Prosecutor]: Judge, I'm gonna object. Again, I think that was the basis for Mr. Urdahl's previous objection just previously, and I think again, that the court's made a ruling on that. He's not in a position to be the judge of what relevancy this thing has. That's for the court to determine.
Judge: But what, restate your question Mr. Urdahl.
Mr. Urdahl: Well, I was trying to ask Jimmy what this fish had to do with the charge that he's charged with.
Judge: I think I'll allow him to answer the question.
[Conner]: I [sic] has none that I know of.
Record at 485-486. When Conner opined the fish had nothing to do with the case, he was mistaken. Like the fish, Conner's conviction under IND.CODE 85-48-4-4.6 is malodorous.
I
On May 7, 1991, a confidential informant reported to Detective McQuinley of the Connersville Police Department that Conner had offered to sell the informant one pound of marijuana for $1,600.00. Detective McQuinley immediately wired the informant with a transmitter and gave him the buy money. When Conner and the informant met, Conner produced a brown paper bag, which, according to the informant, contained "at least 20" individual *495"sandwich baggies ... all rolled up with appeared [sic] to be marijuana inside." Record at 280-81. After collecting the goods and handing over the money, the informant left to give the bag and its contents to Detective McQuinley.
After the lab results came back negative, the State charged Conner with violating section 4.6(a) of Indiana's version of the Uniform Controlled Substances Act,2 which, paraphrasing, makes it a Class C felony to sell a substance represented to be an illegal drug but which really is not. In other words, our General Assembly has chosen-rightly so, in my opinion-to prohibit individuals not just from selling controlled substances, but also from selling substances represented to be controlled when in fact the substances sold are not controlled. This section, however, arbitrarily abandons the General Assembly's explicit insistence that offenses involving marijuana be punished less severely than offenses involving all other schedule I drugs.
That the General Assembly intended to treat marijuana offenses differently than "hard" drugs like cocaine, heroin, and LSD is beyond dispute. Although marijuana is a schedule I drug, IND.CODE 85-48-2-4(d)(14), it is specifically excluded from IND.CODE 35-48-4-7(a), which punishes the unauthorized possession of schedule I, II, IH, and IV drugs as a Class D felony3 Similarly, IND.CODE 85-48-4-2(a), which makes dealing a schedule I, II, or III controlled substance a Class B felony punishable by up to twenty years' imprisonment, also specifically excludes marijuana from its purview.4
In stark contrast, the General Assembly chose to make the simple possession of marijuana a Class A misdemeanor, punishable by no more than one year of imprisonment. IND.CODE 85-48-4-11.5 Even dealing marijuana is only a Class A misdemeanor. IND.CODE 35-48-4-10.6 We all *496know why the General Assembly has chosen to treat offenses involving marijuana more leniently: marijuana simply is not considered to be as "bad" as the other schedule I controlled substances.
By enacting this particular statutory scheme, then, the General Assembly explicitly gave substance to its intent to punish offenses involving marijuana less severely than other, more harmful drugs like cocaine. Given this legislative treatment, I am at a loss to justify the punishment meted out by IND.CODE 35-48-4-4.6, under which Conner was convicted and sentenced to six years' imprisonment. The section completely ignores the separate classification and milder treatment previously afforded marijuana offenses, and creates absurd results. Had Conner sold an ounce of real marijuana, he would have committed a Class A misdemeanor and could not have served more than one year in jail. In disturbing contrast, had he sold a pinch of oregano but claimed it was marijuana, he would have committed a Class C felony and could have been sentenced to eight years in jail. Compared to other schedule I, II, or III controlled substances, the marijuana result is both irrational and smelly.
Although I recognize the General Assembly may legitimately punish a person who sneakily sells "fake" marijuana, 1 find it impossible to reconcile the disproportionate punishment imposed for that offense with the punishment imposed for the sale of real marijuana, given the legislature's explicit separate and more lenient treatment of offenses involving marijuana, hash oil, and hashish. Even if, as the majority states, it is acceptable to punish a "dishonest" marijuana dealer more severely than an "honest" marijuana dealer, why is a "dishonest" cocaine or other schedule I, II, or III dealer treated less severely than an "honest" one? A person who sells one ounce of marijuana commits a Class A misdemeanor and faces a maximum penalty of one year of jail, but if he represents the substance to be marijuana when in fact it is not, the sentence skyrockets to a possible eight years' imprisonment. A person who sells one gram of cocaine commits a Class B felony and faces a possible penalty of twenty years' imprisonment; if he sells one gram of baking soda but says it is cocaine, the penalty drops to no more than eight years' imprisonment.
In sum, while it is a good idea to punish those individuals who sell substances represented to be controlled but which in reality are not controlled, IND.CODE 85-48-4-4.6 ignores the more lenient treatment the rest of the Act bestows upon marijuana offenses. Although penal statutes should be given an interpretation that brings efficient operation to the expressed intent of the legislature, should not be overly narrowed so as to exclude cases fairly covered, and "[ilf possible ... should be allowed to perform their intended mission as shown by the existing evils intended to be remedied[,]"' Barger v. State (1992), Ind., 587 N.E.2d 1304, 1306, when this is not possible they must be construed strictly against the State. Further,
As a general principle a statute should grant equal protection to those upon whom it acts. But if a statute should create and define several classes and dis-similarly assign burdens and benefits of the same type between the classes, the statute is not necessarily repugnant to the equal protection clause. If there is a reasonable basis for treating the classes dissimilarly then the statute may pass muster. Lindsey v. Natural Carbonic *497Gas Co. (1911), 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369.
Martin v. State (1974), 262 Ind. 232, 247, 317 N.E.2d 430, 431, cert. denied, 420 U.S. 911, 95 S.Ct. 833, 42 L.Ed.2d 841 (1975). IND.CODE 35-48-4-4.6 does not pass muster. It smells like aged fish. After creating separate classes for martjuana offenses and for other schedule I offenses, Section 4.6 ignores the classifications and punishes the "dishonest" marijuana dealer more severely than the "honest" one, but punishes the dishonest cocaine or other schedule I, II, or III dealer less severely than his honest counterpart. And even if false representation of, say, oregano as marijuana is really not a crime "involving marijuana" because no marijuana was transferred, what reason can possibly justify making the punishment for dealing the fake stuff up to eight times stiffer than for dealing the real stuff? Certainly not all non-violent crimes of dishonesty are punished as Class C felonies, as the majority seems to suggest.
Because I can find no reasonable basis for the dissimilar treatment, I find the statutory scheme violative of Conner's equal protection rights under both article I, see. 28 of the Indiana Constitution and the United States Constitution's fourteenth amendment.
II
Conner's conviction is fishy for another reason, too. In my judgment, the State failed to prove beyond a reasonable doubt that the substance Conner sold to the confidential informant was not marijuana.
After receiving the brown paper sack and its contents from the confidential informant, Detective McQuinley promptly put the evidence in the police evidence locker. Two days later, Detective McQuinley took one baggie out and examined it. At trial, he commented that this one sample "sure didn't look like marijuanal.]7 " Record at 303. His field test on the one baggie was negative. Because the sample was wet, Detective MceQuinley emptied out all the baggies onto two trays to dry.
Three months later, he took the contents of one tray to the state police lab in Indianapolis for thorough testing. On the "Request for Laboratory Examination" form the state police provide, Detective MeQuin-ley indicated the evidence was part of a drug investigation and asked the laboratory to "weigh and identify tobacco-like substance." Record at 816. A month later, the results came in: "No scheduled controlled substances were identified in item 1. The weight of plant material in item 1 was 78.8 grams." Record at 320.
In early October, 1991, Detective McQuinley remembered the second tray. He forwarded the second half of the substance Conner sold to the police laboratory, together with . the same instructions. Again, the lab reported identifying no controlled substances in the batch and that the plant material weighed 71.6 grams.
The majority concludes the State sufficiently met its burden of proof based on the Detective McQuinley's statement that the contents of the single baggie "sure didn't look like marijuana" and the fact that the state police lab results indicated the two samples tested did not contain mar-iuana. I disagree. To my mind, neither the detective's remark nor the lab results, whether considered separately or together, proved beyond a reasonable doubt the substance Conner sold to the confidential informant was not controlled.
I am aware that when reviewing a challenge to the sufficiency of the evidence this court will not reweigh evidence or reweigh the credibility of witnesses. Grayson v. State (1992), Ind.App., 593 N.E.2d 1200, 1203. This court will consider only that evidence most favorable to the verdict, together with all reasonable and logical inferences flowing from that evidence. Id. If there is substantial evidence of probative value supporting the verdict, the sufficiency challenge fails. Id. °
*498The laboratory testing was done by chemist George Smith. After giving the standard chain of eustody testimony, Mr. Smith was asked how he knew the substance Conner sold contained no marijuana. Mr. Smith's answer and the remainder of his testimony is as follows:
I took a representative specimen from the plant material from each item, and I ran a microscopic visual examination on the plant material. I run Deugonoy-Levine test on extractions of any active ingredients, if present, in the plant material, and I ran a thin layer chromatography test of pretrolemethur extracts of any possible controlled substance that would be present in the plant material.
Q. Are these the typical test that performed on such substances?
A. On plant material, yes sir.
Q. And your opinion with regard to the substances that you conducted tests on, is that it was not marijuana. Is that correct?
A. The material that I examined contained no marijuana.
Q. Were there any other controlled substances present?
A. No, sir. No other controlled substances were identified.
Mr. Kuntz: The State has no further questions at this time.
Judge: Mr. Urdahl?
CROSS-EXAMINATION OF GEORGE SMITH, QUESTIONS BY RONALD T. URDAHL, ESQ.
Q. Mr. Smith, you said the material I tested contained no marijuana?
A. Yes, sir.
Q. Is that right?
A. Yes.
Q. And you, the part that you tested was what you called representative specimen in your words. Is that right?
A. Yes, sir.
Q. It means the rest of the stuff that was given to you, you didn't test?
A. That is correct, sir.
Q. So you don't know what that contains. Right?
A. That is correct, sir.
Q. Thank you.
A. I took a representative sample.
Q. Thank you. No further questions. RE-DIRECT EXAMINATION OF GEORGE SMITH, QUESTIONS BY WILLIAM KUNTZ, DEPUTY PA.:
Q. Could you please explain for the jury, Mr. Smith, what you mean by representative sample and why is that procedure used?
A. Well, in a representative sample, especially with plant material, I take specimens, a small portion of the specimens throughout the plant material and take that out as a sample. That is what I call my representative sample.
Q. So it has to do with the probability involved?
A. Yes, sir. It's the probability of whether I'll pick up everything that's represented.
MR. KUNTZ: I have no further questions at this time.
MR. URDAHL: No further questions.
JUDGE: You may step aside.
MKR. SMITH: May I leave for Indianapolis?
Record at 424-427,
In the typical drug case, the State has a relatively easy time proving that the substance sold is controlled. If any portion of the sample, no matter how small or insignificant, tests positive, the issue is practically foreclosed. In contrast, IND.CODE 85-48-4-4.6 requires proof that the substance sold is not controlled. If any portion of the material sold is martjuana, IND. CODE 35-48-4-4.6 is inapplicable. By choosing to charge Conner under IND. CODE 35-48-4-4.6 the State willingly undertook the difficult task of proving a negative: that the entire substance Conner distributed was neither marijuana nor any other controlled substance. In addition, the State had to do so beyond a reasonable doubt. The fact that the difficulty level of such an endeavor is higher does not, of course, relieve the State of its obligations.
Without question, Mr. Smith's testimony conclusively established beyond a reasonable doubt that the two "small" representa*499tive samples tested contained no marijuana. The testimony also unequivocally established that Smith did not test the remainder and did not know whether it contained marijuana or not. (Recall that Mr. Smith acknowledged he did not test the remainder of the material and did not know what it contained.) Thus, the question is whether the State's proof that a "small" "representative" sample contained no marijuana satisfied its burden of showing beyond a reasonable doubt that the whole contained none. For me, that reasonable doubt remains.
Mr. Smith did not testify that the samples he took were truly representative of the entire lot. Rather, he testified that a representative sample was the probability of whether he would pick everything that was represented. But what is that probability? Where is the description of the plant material such that one could reasonably conclude the two small samples drawn proved the remainder contained no marijuana? There was no testimony that the plant material was, for example, uniform in texture, color, or shape, such that a small sample might well represent the whole. Cf. Woodson v. State (1986), Ind., 501 N.E.2d 409 (evidence sufficient to support conviction for possession of more than three grams of heroin when police emptied the contents of 100 bindles "uniform in size and appearance" and then "thoroughly mixed" them to determine total heroin content). In fact, other than the "tobacco-like substance" label given on the two requests for examination, the record contains absolutely no description of the plant material Conner sold.
If there really was no marijuana in the batch he sold, Conner committed a Class C felony. If, however, there was the slightest bit of marijuana present, Conner committed only a Class D felony at most. When the State chooses to undertake a prosecution under IND.CODE 85-48-4-4.6, it takes on an extra evidentiary burden: proving beyond a reasonable doubt that the entirety of the material represented to be controlled lacks the presence of a controlled substance. To meet its burden, the State will have to ask its chemist a few questions about precisely how he or she determined the entirety contained no controlled substances. In the face of Mr. Smith's acknowledgement that the vast portion of the material was unidentified one way or the other, and absent a reasonably particularized showing that the two small representative samples Mr. Smith took and tested were adequate to achieve the desired end of demonstrating the entirety lacked marijuana, I am unconvinced the State proved beyond a reasonable doubt that the entirety of the plant material Conner sold lacked any controlled substances. I would reverse the conviction.
For the reasons given above, I dissent.
. IND.CODE 35-48-1-1 et seq.
. IND.CODE 35-48-4-7(a) reads as follows:
A person who, without a valid prescription or order of a practitioner in the course of his professional practice, knowingly or intentionally possesses a controlled substance (pure or adulterated) classified in schedule I, II, III, or IV, except marijuana or hashish, commits possession of a controlled substance, a Class D felony.
(Emphasis added.) The offense is a Class C felony, punishable by up to eight years' imprisonment, if committed within 1000 feet of school property or on a school bus. IND.CODE 35-48-4-7(b).
. IND.CODE 35-48-4-2(a) reads as follows:
A person who:
(1) knowingly or intentionally:
(A) manufactures;
(B) finances the manufacture of;
(C) delivers; or
(D) finances the delivery of;
a controlled substance, pure or adulterated, classified in schedule I, II, or III, except marijuana, hash oil, or hashish; or
(2) possesses, with intent to:
(A) manufacture;
(B) finance the manufacture of;
(C) deliver; or
(D) finance the delivery of;
a controlled substance, pure or adulterated, classified in schedule I, II, or III, except marijuana, hash oil, or hashish;
commits dealing in a schedule I, II, or III controlled substance, a Class B felony....
(Emphasis added.) The offense may become a Class A felony (punishable by up to fifty years' imprisonment) depending on the amount involved, the age of the parties to the transaction, and proximity to school property or a school bus. IND.CODE 35-48-4-2(b).
. IND.CODE 35-48-4-11 reads as follows:
A person who:
(1) knowingly or intentionally possesses (pure or adulterated) marijuana, hash oil, or hashish;
(2) knowingly or intentionally grows or cultivates marijuana; or
(3) knowing that marijuana is growing on his premises, fails to destroy the marijuana plants;
commits possession of marijuana, hash oil, or hashish, a Class A misdemeanor. However, the offense is a Class D felony (i) if the amount involved is more than thirty (30) grams of marijuana or two (2) grams of hash oil or hashish, or (ii) if the person has a prior conviction of an offense involving marijuana, hash oil, or hashish.
. IND.CODE 35-48-4-10(a) reads as follows:
A person who:
(1) knowingly or intentionally:
(A) manufactures;
(B) finances the manufacture;
(C) delivers; or
(D) finances the delivery of;
*496marijuana, hash oil, or hashish, pure or adulterated; or
(2) possesses, with intent to:
(A) manufacture;
(B) finances [sic] the manufacture of;
(C) deliver; or
(D) finances [sic] the delivery of;
marijuana, hash oil, or hashish, pure or adulterated;
commits dealing in marijuana, a Class A misdemeanor....
The offense is a Class D felony if the marijuana involved is more than thirty grams but less than ten pounds, if the recipient is under eighteen years old, or if the person has a prior conviction involving marijuana. IND.CODE 35-48-4-10(b)(1). If the amount involved is more than ten pounds or is transferred within 1000 feet of a school or on a school bus, the offense becomes a Class C felony. IND.CODE 35-48-4-10(b)(2).
. In contrast to the confidential informant, who testified he was familiar with marijuana's appearance and that the material Conner sold looked like marijuana, Detective McQuinley did not specifically testify he was familiar with the drug's appearance.