Mark A. Eason, Jr. v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jul 05 2019, 5:36 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Marielena Duerring Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Tiffany A. McCoy
Angela Sanchez
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mark A. Eason, Jr., July 5, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2323
v. Appeal from the Elkhart Circuit
Court
State of Indiana, The Honorable Michael A.
Appellee-Plaintiff. Christofeno, Judge
Trial Court Cause No.
20C01-1707-F2-21
Mathias, Judge.
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Case Summary and Issue
[1] Mark A. Eason, Jr. (“Eason”) appeals his convictions in the Elkhart Circuit
Court of Level 2 felony dealing in a controlled substance and Level 2 felony
dealing in a narcotic drug. Eason argues there is insufficient evidence to support
his convictions. We affirm.
Facts and Procedural History
[2] In April 2017, a confidential cooperating source informed the Elkhart County
Intelligence and Covert Enforcement Unit (“ICE”) that Eason was dealing
heroin in Elkhart County. Tr. Vol. II, p. 82. The source helped ICE arrange a
controlled buy from Eason on May 4, 2017. Id. at 86. The buy was audio and
video recorded. Id. at 169. Eason gave an undercover officer, UC 150, a bag
with brown powder in exchange for $1,900. Id. at 87, 175–76. The substance
field tested positive for heroin. Id. at 105.
[3] UC 150 arranged a second controlled buy with Eason on May 9, 2017 to
purchase one ounce of heroin. Id. at 181–83. This buy was also audio and video
recorded. Id. at 186. Eason informed UC 150 that the price for one ounce of
heroin was $3,625 and accepted $3,650 from UC 150 because Eason believed
the bag might be over an ounce. Id.
[4] Nicole Kay (“Kay”), a forensic scientist with the Indiana State Police,
conducted testing to identify the substances purchased on May 4 and 9, 2017.
Id. at 202. She conducted three tests on each substance: ultraviolet
spectrometry, gas chromatography-mass spectrometry (“GCMS”), and thin
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layer chromatography. Id. at 200–01. These tests are generally accepted and
relied on in forensic science and are used throughout Indiana to determine the
presence of drugs. Id. at 201–02.
[5] The substance from May 4, 2017 weighed 10.04 grams. Id. at 205. The first test,
ultraviolet spectrometry, was inconclusive. Id. at 206. Kay testified that
inconclusive ultraviolet spectrometry results commonly occur when a substance
is a mixture and clarified that an inconclusive result does not mean a substance
does not contain illegal substances. Id. at 206–07. Kay then ran GCMS. The
first run was weak, indicating but not confirming the presence of heroin. Id. at
233. A second run was strong enough to confirm the presence of heroin. Id. at
234. Finally, thin layer chromatography was positive for heroin. Id. at 212.
Kay testified the substance from the May 4, 2017 controlled buy contained
heroin. Id.
[6] Kay followed the same process for the substance obtained during the May 9,
2017 controlled buy. The substance weighed 29.28 grams. Id. at 216. The
ultraviolet spectrometry test was again inconclusive, and the first run of GCMS
was weak. Id. at 216, 233. The second run of GCMS was also faulty. Id. at 234.
Kay concentrated the substance and the third analysis positively confirmed the
presence of fentanyl, a Schedule II controlled substance. Id. at 234–35. Thin
layer chromatography was also positive for fentanyl. Id. at 217. Kay testified the
substance from May 9, 2017 contained fentanyl. Id. at 218.
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[7] The State charged Eason with Level 2 felony dealing in a controlled substance
and Level 2 felony dealing in a narcotic drug.1 Appellant’s Conf. App. p. 53.
The State also alleged Eason is an habitual offender. Id. at 54. At the April 16,
2018 bench trial, the trial court found Eason guilty of both counts, and Eason
admitted to being an habitual offender. Tr. Vol. III, pp. 25, 28. The court
sentenced Eason to an aggregate 45-year sentence, with 5 years suspended to
probation.2 Eason now appeals, arguing the State failed to present sufficient
evidence to support his convictions.
Standard of Review
[8] In examining the sufficiency of the evidence, the court will consider only the
evidence most favorable to the judgment and the reasonable inferences that can
be drawn therefrom. Morgan v. State, 22 N.E.3d 570, 573 (Ind. 2014). We will
not reweigh evidence or assess witness credibility. Id. We will affirm the
conviction unless no reasonable fact-finder could have found the elements of
the crime proved beyond a reasonable doubt. Jackson v. State, 50 N.E.3d 767,
770 (Ind. 2016).
1
Initially, the State also charged Eason with Level 3 felony dealing in a narcotic drug and Level 4 felony
dealing in a narcotic drug, but those charges were dropped prior to trial.
2
The trial court also revoked Eason’s probation in Cause No. 20C01-1606-F6-687 and Cause 20C01-1101-
FB-1 and re-imposed his previously suspended sentences, based on his conviction in this case. The trial court
ordered Eason’s sentences in those cases to be served consecutive with each other and with his sentences in
this case.
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Discussion
[9] To convict Eason of Level 2 dealing in a controlled substance, the State had to
prove that Eason knowingly or intentionally delivered a controlled substance,
pure or adulterated, classified in Schedule I, II, or III. See Ind. Code § 35-48-4-
2(a)(1)(C). The offense is a Level 2 felony if the controlled substance is at least
twenty-eight grams. See I.C. § 35-48-4-2(f)(1). To convict for Level 2 dealing in
a narcotic drug, the State had to show that Eason knowingly or intentionally
delivered a narcotic drug, pure or adulterated, classified in Schedule I or II. See
I.C. § 35-48-4-1(a)(1)(C). The offense is a Level 2 felony if the amount of the
drug involved is at least ten grams. See I.C. § 35-48-4-1(e)(1).
[10] Eason’s sole issue on appeal is the sufficiency of the evidence that the
substances he sold during the controlled buys contained heroin and fentanyl.
Eason argues the evidence is insufficient because Kay stated that two runs of
GCMS were “weak.” Appellant’s Br. at 9. Eason relies on Halferty v. State, 930
N.E.2d 1149 (Ind. Ct. App. 2010), trans. denied, wherein a trooper’s testimony
about the conversion ratio of ephedrine/pseudoephedrine to methamphetamine
was insufficient to sustain a conviction for manufacturing three or more grams
of methamphetamine based on the amount of ephedrine/pseudoephedrine
recovered at the scene. The trooper testified that “in general” the conversion
ratio between ephedrine/pseudoephedrine and methamphetamine is “usually”
about 70-80%, and one gram of ephedrine/pseudoephedrine would produce
“about” 0.7-0.8 gram[] of methamphetamine. The trooper’s use of imprecise
terms did not constitute proof beyond a reasonable doubt that 4.61 grams of
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ephedrine/pseudoephedrine would produce three or more grams of
methamphetamine. Eason argues that Kay’s “weak” runs of GCMS are
“likewise nebulous” and thus insufficient to prove beyond a reasonable doubt
that the substances contain heroin and fentanyl.
[11] Halferty is inapplicable to this case. Here, “weak” is a description of the results
of a single scientific test rather than a general description of Kay’s findings.
Both substances had one weak GCMS run; Kay then concentrated and retested
the substances, receiving positive results. Thin layer chromatography confirmed
the positive results. The fact finder was justified in crediting Kay’s testimony
about the nature of the substances. Eason’s argument is nothing more than a
request for us to reweigh the evidence and assess the credibility of the witness
on appeal, which we will not do. We therefore conclude that the State
presented sufficient evidence to support Eason’s convictions.
[12] Affirmed.
May, J., and Brown, J., concur.
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