Bruce Ashby v. State of Indiana (mem. dec.) ( 2015 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    Dec 07 2015, 9:07 am
    this Memorandum Decision shall not be
    regarded as precedent or cited before any
    court except for the purpose of establishing
    the defense of res judicata, collateral
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
    James C. Spencer                                        Gregory F. Zoeller
    Dattilo Law Office                                      Attorney General of Indiana
    Madison, Indiana
    James B. Martin
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Bruce Ashby,                                            December 7, 2015
    Appellant-Defendant,                                    Court of Appeals Case No.
    39A04-1504-CR-156
    v.                                              Appeal from the Jefferson Superior
    Court
    State of Indiana,                                       The Honorable Michael J.
    Appellee-Plaintiff                                      Hensley, Judge
    Trial Court Cause No.
    39D01-1306-FD-542
    Robb, Judge.
    Court of Appeals of Indiana | Memorandum Decision 39A04-1504-CR-156 | December 7, 2015   Page 1 of 11
    Case Summary and Issue
    [1]   Following a jury trial, Bruce Ashby was convicted of possession of a controlled
    substance as a Class D felony. Ashby appeals, raising four issues for our
    review, one of which we find dispositive: whether the State presented sufficient
    evidence to support his conviction. Concluding the evidence was insufficient,
    we reverse and remand.
    Facts and Procedural History
    [2]   On May 24, 2013, officers of the Madison Police Department went to Ashby’s
    residence to execute an arrest warrant for Perry Gammons. The officers had
    received information that Gammons was staying with Ashby. Ashby told the
    officers he did not know Gammons and invited the officers inside “to take a
    look for [them]selves.” Transcript at 26. While inside Ashby’s residence, the
    officers observed a cellophane wrapper that contained a white powdery residue.
    The wrapper was in plain view on a coffee table in the living room. The officers
    asked Ashby if the wrapper contained methamphetamine. Ashby said it was
    “crushed Lortab,” not methamphetamine, and admitted he did not have a
    prescription for Lortab. Id. at 27.
    [3]   The officers seized the wrapper but did not arrest Ashby at that time. Several
    weeks later, Ashby was arrested and charged with possession of a controlled
    substance as a Class D felony. The charging information alleged,
    Court of Appeals of Indiana | Memorandum Decision 39A04-1504-CR-156 | December 7, 2015   Page 2 of 11
    On or about May 24, 2013, Bruce Ashby, knowingly or
    intentionally, without a valid prescription or order of a
    practitioner acting in his/her professional practice, possessed a
    controlled substance classified under schedule II under IC 35-48,
    that is: Lortab.
    Appendix of Appellant at 11. Lortab, a brand name prescription drug
    containing hydrocodone and acetaminophen, is not listed, by that name, in any
    schedule in the Indiana Code. See Tr. at 57; Drug Enforcement Administration,
    Hydrocodone (Oct. 2014), http://www.deadiversion.usdoj.gov/drug_chem_
    info/hydrocodone.pdf.
    [4]   At the time of Ashby’s arrest, the identity of the white powdery residue had not
    been confirmed by forensic testing. The Madison Police Department sent the
    wrapper to the Indiana State Police Laboratory for testing in August 2013.
    Forensic scientist Brandy Cline conducted the analysis. According to her
    Certificate of Analysis dated October 9, 2013, the wrapper contained
    “Dihydrocodeinone (Hydrocodone), a controlled substance,” as well as
    “Acetaminophen, a non-controlled substance.” State’s Exhibit 4. Cline was
    unable to determine the weight of the residue because the laboratory’s scale
    cannot detect a measurement that is less 0.01 grams.
    [5]   A jury trial was held in February 2015. On the first day of trial, between jury
    selection and opening statements, the State moved to amend the charging
    information. After speaking with Cline that morning, the State realized Cline
    could not testify the white powdery residue was Lortab “because it was in a
    Court of Appeals of Indiana | Memorandum Decision 39A04-1504-CR-156 | December 7, 2015   Page 3 of 11
    crushed form, so . . . there’s no markings.” Tr. at 13. In addition, the State
    explained,
    Hydrocodone is a Schedule II controlled substance, however, . . .
    I just learned from the chemist that because it has some
    acetaminophen in it, that probably puts it in Schedule III. . . . [I]t
    was charged as a Schedule II, and again, it is a Schedule II if it’s
    just hydrocodone, but because of the acetaminophen, it changes
    the character.
    Id. at 4-5.
    [6]   Prior to ruling on the State’s motion, the trial court heard testimony from Cline
    outside the presence of the jury:
    Q. [B]ased upon your analysis . . . your conclusion would be
    that it is a Schedule III substance as opposed to a Schedule II
    substance[?] . . .
    A. My understanding of the criminal code is that hydrocodone is
    listed as a Schedule II substance, but dihydrocodone [sic] or
    hydrocodone which it’s also known, mixed with a amount [sic]
    of a non-narcotic, which would include acetaminophen, is a
    Schedule III.
    ***
    Q. So what amount does it require to become . . . I mean in
    terms of proportion, is it required to become a Schedule III?
    A. I don’t know the amount off the top of my head. I just know
    when we deal with whole tablets that contain the mixture, they
    are a Schedule III in the State of Indiana. . . .
    Court of Appeals of Indiana | Memorandum Decision 39A04-1504-CR-156 | December 7, 2015   Page 4 of 11
    Q. So in your opinion, based upon what evidence you have, it’s
    a Schedule III, or is it?
    A. I guess I do not know whether it is a Schedule II or a
    Schedule III . . . . [L]ike I said the Schedule III is a certain
    amount of acetaminophen mixed with hydrocodone, I believe. I
    do not know that amount so I could not say for sure.
    Id. at 7, 10.
    [7]   At the conclusion of Cline’s testimony, the State requested the charging
    information be amended to allege Ashby possessed a controlled substance
    “classified as a Schedule II or III.” Id. at 13. The trial court granted the State’s
    motion to amend the charging information, and the trial commenced. The jury
    found Ashby guilty of “Possession of a Controlled Substance Classified Under
    Schedule II or III Under I.C. 35-48, a Class D Felony.” App. of Appellant at
    116 (Verdict Form).1 This appeal followed.
    Discussion and Decision
    I. Standard of Review
    [8]   When reviewing the sufficiency of the evidence to support a conviction, we
    consider only the probative evidence and reasonable inferences supporting the
    1
    The jury instructions stated the term “controlled substance” refers to a substance identified in Schedule I, II,
    III, IV, or V, and that hydrocodone is classified as a Schedule II controlled substance. App. of Appellant at
    114-15. The jury instructions did not reference which Schedule III controlled substance Ashby was alleged to
    have possessed.
    Court of Appeals of Indiana | Memorandum Decision 39A04-1504-CR-156 | December 7, 2015               Page 5 of 11
    verdict. Drane v. State, 
    867 N.E.2d 144
    , 146 (Ind. 2007). We neither reweigh
    the evidence nor assess the credibility of witnesses. 
    Id.
     Unless no reasonable
    fact-finder could conclude the elements of the crime were proven beyond a
    reasonable doubt, we will affirm the conviction. 
    Id.
    II. Possession of a Controlled Substance
    [9]    A conviction must be reversed if the State failed to prove an essential element of
    the offense. Porod v. State, 
    878 N.E.2d 415
    , 417 (Ind. Ct. App. 2007). With
    respect to offenses involving controlled substances, the State must prove, as an
    essential element, the substance falls within a particular statutory provision.
    Barnett v. State, 
    579 N.E.2d 84
    , 86 (Ind. Ct. App. 1991) (citing White v. State, 
    161 Ind. App. 568
    , 571, 
    316 N.E.2d 699
    , 701 (1974)), trans. denied. If, during trial,
    the substance is identified by a name specifically designated a controlled
    substance in the Indiana Code, the State has proven, as a matter of law, the
    substance is a controlled substance. 
    Id.
     If the substance is identified by a name
    that is not specifically designated a controlled substance, such as Lortab, the
    State must offer extrinsic evidence concerning the substance’s chemical
    properties to prove the substance falls within the Indiana Code’s definition of a
    controlled substance. 
    Id.
    [10]   Here, Ashby was convicted of possession of a “Schedule II or III” controlled
    substance. Indiana Code section 35-48-4-7(a) (2011) provides,
    A person who, without a valid prescription or order of a
    practitioner acting in the course of the practitioner’s professional
    practice, knowingly or intentionally possesses a controlled
    Court of Appeals of Indiana | Memorandum Decision 39A04-1504-CR-156 | December 7, 2015   Page 6 of 11
    substance (pure or adulterated) classified in schedule I, II, III, or
    IV, except marijuana, hashish, salvia, or a synthetic cannabinoid,
    commits possession of a controlled substance, a Class D felony.
    [11]   In Indiana, hydrocodone is a Schedule II controlled substance:
    (b) Any of the following substances, except those narcotic drugs
    listed in other schedules [are included in Schedule II]:
    (1) Opium and opiate, and any salt, compound, derivative,
    or preparation of opium or opiate . . . including:
    ***
    (K) hydrocodone . . . .
    
    Ind. Code § 35-48-2-6
    (b)(1)(K) (2008). But when combined with a certain
    quantity of a nonnarcotic, hydrocodone (also known as dihydrocodeinone) is a
    Schedule III controlled substance. Indiana Code section 35-48-2-8 (2008)
    provides,
    (e) Narcotic Drugs. Unless specifically excepted or unless listed
    in another schedule, any material, compound, mixture, or
    preparation containing any of the following narcotic drugs . . . in
    the following limited quantities [are included in Schedule III]:
    ***
    (4) Not more than 300 milligrams of dihydrocodeinone, per
    100 milliliters or not more than 15 milligrams per dosage
    unit, with one (1) or more active nonnarcotic ingredients in
    recognized therapeutic amounts . . . .
    ***
    (g) The board[2] shall except by rule any compound, mixture, or
    preparation containing any stimulant or depressant substance
    2
    The “board” refers to the Indiana Board of Pharmacy. 
    Ind. Code § 35-48-1-6
    .
    Court of Appeals of Indiana | Memorandum Decision 39A04-1504-CR-156 | December 7, 2015   Page 7 of 11
    listed in subsections (b) through (e) from the application of any
    part of this article if the compound, mixture, or preparation
    contains one (1) or more active medicinal ingredients not having
    a stimulant or depressant effect on the central nervous system,
    and if the admixtures are included therein in combinations,
    quantity, proportion, or concentration that vitiate the potential
    for abuse of the substances which have a stimulant or depressant
    effect on the central nervous system.
    [12]   During trial, Cline testified the wrapper “was found to contain
    dihydrocodonone [sic] or hydrocodone, a controlled substance” and that
    “[e]xamination also indicated the presence of acetaminophen a non-controlled
    substance.” Tr. at 55. Cline also stated she was unable to determine the weight
    of the residue because the laboratory’s scale cannot detect a measurement that
    is less than 0.01 grams. The only testimony regarding the amount of the
    hydrocodone versus acetaminophen was Cline agreeing there was relatively
    more acetaminophen in the sample.3 The State presented no evidence on
    whether the acetaminophen in the sample was in a “recognized therapeutic
    amount[].” 
    Ind. Code § 35-48-2-8
    (e)(4) (2008).
    [13]   Ashby argues the evidence was insufficient to support his conviction because
    the State failed to prove an essential element of the offense. He contends the
    3
    The instrument Cline uses to analyze samples provides the “relative abundance” of each substance. Tr. at
    59. Prior to trial, during the hearing on the State’s motion to amend the charging information, Cline stated
    she could not determine the exact quantities of hydrocodone and acetaminophen in the residue. Cline
    explained, “[A]t our lab we cannot quantitate to tell you exactly how much acetaminophen versus how much
    hydrocodone there is.” Id. at 11. Cline “would not feel comfortable saying the exact ratio” of hydrocodone
    to acetaminophen, but she agreed “there is more acetaminophen than there is hydrocodone.” Id.
    Court of Appeals of Indiana | Memorandum Decision 39A04-1504-CR-156 | December 7, 2015          Page 8 of 11
    State was required to prove the residue was a Schedule II or Schedule III
    controlled substance. We addressed a similar set of facts in Barnett, 
    579 N.E.2d 84
    , a case in which the defendant was convicted of possession of a Schedule III
    controlled substance with intent to deliver. Police executed a search warrant at
    Barnett’s house and seized nine white tablets that later tested positive for
    codeine and acetaminophen. Codeine is a Schedule II controlled substance.
    
    Ind. Code § 35-48-2-6
    (b)(1)(G). But similar to hydrocodone, when combined
    with a certain quantity of a nonnarcotic, codeine is a Schedule III controlled
    substance. 
    Ind. Code § 35-48-2-8
    (e)(2) (providing a mixture of “not more than
    90 milligrams [of codeine] per dosage unit, with one (1) or more active,
    nonnarcotic ingredients in recognized therapeutic amounts” is a Schedule III
    controlled substance). At trial, a chemist from the Indiana State Police
    Laboratory testified the tablets contained “Codeine, which is a controlled
    substance, and also present was a drug called Acetaminophen, which is not a
    controlled substance.” Barnett, 
    579 N.E.2d at 87
    .
    [14]   We reversed Barnett’s conviction for possession of a Schedule III controlled
    substance with intent to deliver because no testimony was given regarding the
    quantity of codeine present in each tablet or whether the codeine was mixed
    with a nonnarcotic in a “recognized therapeutic amount[]” as required by
    Indiana Code section 35-48-2-8(e)(2). 
    Id.
     We held the State’s failure to prove
    the tablets contained a mixture of codeine and acetaminophen classified by the
    Indiana Code as a Schedule III controlled substance “constitutes failure to
    prove an essential element of the offense.” 
    Id.
     In doing so, we noted the State
    Court of Appeals of Indiana | Memorandum Decision 39A04-1504-CR-156 | December 7, 2015   Page 9 of 11
    could not meet its evidentiary burden by relying on the chemist’s opinion as to
    whether the tablets were a Schedule III controlled substance; additional
    extrinsic evidence regarding the quantity of codeine by weight and the chemical
    properties of the mixture was required.4 In addition, we disagreed with the
    chemist’s “blanket classification” of codeine with acetaminophen as a Schedule
    III controlled substance, 
    id.,
     citing the provision of the statute permitting an
    exception for any mixture containing a narcotic drug and one or more
    nonnarcotic medicinal ingredients, provided the nonnarcotic is included in a
    quantity or proportion that “vitiate[s] the potential for abuse” of the narcotic
    drug. See 
    Ind. Code § 35-48-2-8
    (f) (1987); accord 
    Ind. Code § 35-48-2-8
    (g)
    (2008).
    [15]   In the present case, the chemist’s testimony was similarly lacking. Cline stated
    the residue contained hydrocodone and acetaminophen, with relatively more
    acetaminophen, but she was unable to offer further detail regarding the
    composition of the mixture.5 As in Barnett, we conclude the State failed to
    prove an essential element of the offense. The evidence was insufficient to
    4
    A chemist’s role in a case such as this is not to offer testimony on which schedule, if any, a particular
    substance belongs. That is a legal conclusion. See Ind. Evidence Rule 704(b); Kelly v. Levandoski, 
    825 N.E.2d 850
    , 864 (Ind. Ct. App. 2005), trans. denied. The chemist’s role, as an expert witness, is to identify the
    substance by its name or chemical properties. The burden is on the State to ensure the testimony proves the
    substance falls within a particular statutory provision. See Barnett, 
    579 N.E.2d at 86
    .
    5
    We acknowledge this issue arises in large part because the tablets in this case had been crushed. When
    prescription drugs are found in an unaltered state, with distinguishing markings, their identities can typically
    be proven by circumstantial evidence rather than chemical analysis. See Boggs v. State, 
    928 N.E.2d 855
    , 865-
    66 (Ind. Ct. App. 2010) (stating the detective identified pills as a decongestant containing pseudoephedrine
    based on “the marking ‘L054,’ which appears on the Equate brand of decongestant”), trans. denied.
    Court of Appeals of Indiana | Memorandum Decision 39A04-1504-CR-156 | December 7, 2015             Page 10 of 11
    support Ashby’s conviction for possession of controlled substance as a Class D
    felony.
    Conclusion
    [16]   The evidence in this case fell short of what our legislature has required to
    sustain a conviction for possession of a controlled substance. We therefore
    reverse and remand with instructions that Ashby’s conviction be vacated.
    [17]   Reversed and remanded.
    Vaidik, C.J., and Pyle, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 39A04-1504-CR-156 | December 7, 2015   Page 11 of 11
    

Document Info

Docket Number: 39A04-1504-CR-156

Filed Date: 12/7/2015

Precedential Status: Precedential

Modified Date: 12/7/2015