Dylan R. Smart v. State of Indiana , 2015 Ind. App. LEXIS 546 ( 2015 )

Aug 04 2015, 9:20 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Richard Ranucci Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dylan R. Smart, August 4, 2015
Appellant-Defendant, Court of Appeals Cause No.
29A02-1412-CR-887
v. Appeal from the Hamilton Superior
Court
Cause No. 29D05-1404-FD-3118
State of Indiana,
Appellee-Plaintiff. The Honorable Wayne A. Sturtevant,
Judge
Barnes, Judge.
Case Summary
[1] Dylan Smart appeals his convictions for Class D felony possession of
methamphetamine and Class D felony unlawful possession of a syringe. We
affirm in part and reverse in part.
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Issues
[2] Smart raises three issues, which we consolidate and restate as:
I. whether the trial court properly admitted the
results of a field test into evidence; and
II. whether the evidence is sufficient to sustain his
convictions.
Facts
[3] On the evening of April 18, 2014, Smart, Janelle King, and Christina Perry
drove around in a vehicle owned by Perry’s husband. Perry did not have a
driver’s license, so King drove the vehicle. Smart was sitting in the front
passenger seat. According to King, all three used narcotics in the vehicle that
day. Everyone injected themselves with syringes filled with drugs provided by
King. King threw her syringe away at a gas station.
[4] In the early morning hours of April 19, 2014, Sergeant Mike Janes of the
Fishers Police Department initiated a traffic stop of the vehicle, and a police
canine alerted to the presence of drugs in the vehicle. During the traffic stop,
Smart was “moving around excessively,” he was not “able to hold still,” and
his eyes were “twitching . . . constantly.” Tr. p. 108. During a search of the
vehicle, officers discovered a spoon on the front passenger floorboard, a capped
syringe on the floorboard behind the driver’s seat, and a capped syringe in a
backpack behind the driver’s seat. Both syringes contained a brown fluid. King
told an officer that there was a syringe in the vehicle and that the syringe
belonged to “him.” Id. at 92. Smart was the only male occupant of the vehicle.
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[5] Smart denied that the backpack belonged to him, but he admitted to Sergeant
Janes that he had used drugs by injecting them earlier in the vehicle. Smart had
fresh “track marks” on his wrist. Id. at 126. Smart also admitted to Sergeant
Janes that he had used “speed” by injecting it. Id. at 127. Speed is a street
name for methamphetamine. Sergeant Janes later performed a field test on the
fluid in one of the syringes, and it tested positive for either methamphetamine
or MDMA, which is ecstasy.
[6] The State charged Smart with Class D felony possession of methamphetamine,
Class D felony unlawful possession of a syringe, and Class D felony possession
of a controlled substance. The controlled substance charge was later dismissed.
[7] At Smart’s bench trial, Audra Yovanovich, a chemist for the Indiana State
Police laboratory, testified that the laboratory was unable to analyze the
substance in the syringes because the fluid was contaminated with blood or
bodily fluids. Bodily fluids can damage the laboratory’s instruments and
degrade controlled substances, and the laboratory is not equipped to identify
metabolites of controlled substances. When questioned regarding the field test
performed by Sergeant Janes, Yovanovich testified that the field test is not
confirmatory but gives a general idea of what kind of drug may be present in a
sample. It is a “widely used test” but would “never be used alone to identify a
controlled substance.” Id. at 99.
[8] Smart later objected to Sergeant Janes’s testimony regarding the results of the
field test on the fluid found in one of the syringes. Smart argued that there was
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not a proper foundation to use the field test, that Sergeant Janes was not an
expert, and that the field test was not a “final test for narcotics.” Id. at 121.
The trial court overruled the objection and stated:
The officer has testified how a test is conducted. The State Police
witness testified that is a valid test, although not conclusive by itself
and the Officer’s testified that the - - if it turns blue, that’s a positive
result for methamphetamine or MDMA. Everything else goes to the
weight of that testimony, will be assigned to me to make that
determination, so the objection is overruled.
[9] Id. Sergeant Janes then testified that the field test indicated a positive result for
methamphetamine or MDMA.
[10] At the trial, Smart testified that King had offered him “some speed, crystal” that
was already loaded in a syringe. Id. at 143. Smart then testified that King had
helped him inject it into his arm and that she kept the needle. Smart then
admitted to using methamphetamine. Perry also testified and admitted to
injecting methamphetamine provided by King.
[11] The trial court found Smart guilty as charged and sentenced him to three years
with one year suspended to probation. Smart now appeals.
Analysis
I. Admission of Evidence
[12] Smart first argues that the trial court abused its discretion by admitting evidence
of the field test results. We review the admission of evidence for an abuse of
discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of
discretion occurs “where the decision is clearly against the logic and effect of
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the facts and circumstances.” Smith v. State, 754 N.E.2d 502, 504 (Ind. 2001).
The admission of evidence is harmless and is not grounds for reversal where the
evidence is merely cumulative of other evidence properly admitted. Gaines v.
State, 999 N.E.2d 999, 1005 (Ind. Ct. App. 2013).
[13] According to Smart, the trial court erred by admitting evidence of the field test
results because the State failed to present a sufficient foundation for the
scientific reliability of the field test. However, we need not address that
argument because there was substantial evidence other than the field test result
that the syringes contained methamphetamine. Most importantly, King, Perry,
and Smart all admitted that they had injected methamphetamine earlier in the
evening. Smart testified that King provided syringes already loaded with
methamphetamine and that she helped him inject the methamphetamine into
his arm. The positive field test result is merely cumulative of other evidence
presented that the syringes contained methamphetamine. Any error in the
admission of the field test result was harmless.
II. Sufficiency of the Evidence
[14] Smart argues that the evidence is insufficient to sustain his convictions. When
reviewing the sufficiency of the evidence needed to support a criminal
conviction, we neither reweigh evidence nor judge witness credibility. Bailey v.
State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence
supporting the judgment and any reasonable inferences that can be drawn from
such evidence.” Id. We will affirm if there is substantial evidence of probative
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value such that a reasonable trier of fact could have concluded the defendant
was guilty beyond a reasonable doubt. Id.A. Possession of Methamphetamine
[15] Smart was found guilty of Class D felony possession of methamphetamine
pursuant to Indiana Code Section 35-48-4.6-1(a), which at the time provided:
“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 methamphetamine (pure or adulterated) commits possession of
methamphetamine, a Class D felony.”
[16] Smart argues that the evidence is insufficient to sustain his conviction because
the State failed to prove the identity of the substance in the syringes. In support
of his argument, Smart relies on State v. Vorm, 570 N.E.2d 109 (Ind. Ct. App.
1991). In Vorm, we addressed whether the presence of cocaine metabolites in
urine was prima facie evidence of possession of cocaine. We held that,
although “the presence of metabolites in urine may be viewed as circumstantial
evidence of possession of cocaine,” that circumstantial evidence, alone, did not
constitute prima facie evidence of possession of cocaine. Vorm, 570 N.E.2d at
110. We rejected “both the State’s contention the mere presence is prima facie
evidence of prior possession and its contention presence in a person’s bodily
systems amounts to a knowledgeable possession of the substance.” Id.[17] We find Vorm distinguishable. Here, even if we do not consider the results of
the field test, we conclude that the evidence is sufficient to show that Smart
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possessed methamphetamine. Unlike in Vorm, Smart, King, and Perry all
admitted to injecting methamphetamine on the evening in question. Smart had
fresh track marks on his arm and was exhibiting symptoms of
methamphetamine use. Our supreme court has recently held that “[t]he State is
not required to introduce the subject contraband to obtain a conviction for
dealing or possession.” Helton v. State, 907 N.E.2d 1020, 1024 (Ind. 2009).
“The identity and quantity of a controlled substance, and the defendant’s
possession of or dealing in narcotics, may all be established through witness
testimony and circumstantial evidence.” Id. Given the circumstantial evidence
and the witness testimony here, we conclude that the evidence is sufficient to
sustain Smart’s conviction for Class D felony possession of methamphetamine.
B. Unlawful Possession of a Syringe
[18] Next, Smart argues that the evidence is insufficient to sustain his conviction for
Class D felony unlawful possession of a syringe. The offense is governed by
Indiana Code Section 16-42-19-18, which at the time of the offense provided:
“A person may not possess or have under control with intent to violate this
chapter [the Legend Drug Act] a hypodermic syringe or needle or an instrument
adapted for the use of a legend drug by injection in a human being.”
[19] Smart argues that, pursuant to Bookwalter v. State, 22 N.E.3d 735 (Ind. Ct. App.
2014), trans. denied, the State was required to show that methamphetamine is a
Legend Drug. In Bookwalter, which was handed down shortly after Smart’s
trial, the defendant was convicted of unlawful possession of a syringe and
admitted that he possessed the syringes to inject himself with heroin. However,
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he argued that heroin was not a legend drug and that there was insufficient
evidence to show that he possessed the syringes with intent to violate the terms
of the Legend Drug Act. This court held that the statute was ambiguous as to
whether the possession of a syringe without a valid prescription for a legend
drug, insulin, or anabolic steroids, with intent to inject a non-legend drug, was
sufficient to violate Indiana Code Section 16-42-19-18. Bookwalter, 22 N.E.3d at
740-41. Consequently, under the rule of lenity, we construed the statute in
favor of the defendant and concluded that intent to inject heroin was not
covered by the Legend Drug Act’s definition of the offense possession of a
syringe.
[20] Following Bookwalter, the State was required to demonstrate that
methamphetamine, which Smart admitted to injecting, was covered by the
Legend Drug Act. Smart concedes that “methamphetamine hydrochloride” is
a legend drug but argues that “methamphetamine” is not listed as a legend
drug. According to Smart, the State failed to present any evidence that the
methamphetamine that he admitted to injecting is the same substance as
methamphetamine hydrochloride. The trial court took “judicial notice” that
methamphetamine is a legend drug. Tr. p. 210. However, Indiana Evidence
Rule 201(a) provides:
The court may judicially notice:
1. a fact that:
(A) is not subject to reasonable dispute because it is
generally known within the trial court’s territorial
jurisdiction, or
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(B) can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.
2. the existence of:
(A) published regulations of governmental agencies;
(B) ordinances of municipalities; or
(C) records of a court of this state.
[21] We cannot say that whether the methamphetamine injected by Smart qualifies
as methamphetamine hydrochloride is a fact “not subject to reasonable dispute”
or a fact that “can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.”1 Evid. R. 201(a). On appeal,
without citing any authority, the State merely argues that “it is apparent that
‘methamphetamine hydrochloride’ is simply the formal name for the drug.”
Appellee’s Br. p. 15. We simply cannot make that connection based on the
evidence presented. Consequently, we conclude that the State failed to present
evidence that Smart possessed a syringe with the intent to violate the Legend
Drug Act. The evidence is not sufficient to sustain this conviction.
1
We acknowledge our supreme court’s opinion in Reemer v. State, 835 N.E.2d 1005 (Ind. 2005). There, the
State was required to show that the defendant possessed salts, isomers, or salts of isomers of ephedrine or
pseudoephedrine in the context of a prosecution for possession of a precursor to methamphetamine. The
State proved that the defendant had possessed pseudoephedrine hydrochloride. We reversed the defendant’s
conviction on appeal because the State had failed to demonstrate that pseudoephedrine hydrochloride was a
salt, isomer, or salt of isomer of pseudoephedrine. Our supreme court took notice of a medical dictionary
definition that pseudoephedrine hydrochloride is “the naturally occurring isomer of ephedrine.” Reemer, 835
N.E.2d at 1010. Consequently, our supreme court found that the evidence was sufficient to sustain the
defendant’s conviction for possession of a precursor to methamphetamine. This case is distinguishable from
Reemer. Here, there was no evidence presented that the methamphetamine that Smart injected is the same as
methamphetamine hydrochloride, and medical dictionary definitions are not helpful in resolving this issue.
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Conclusion
[22] Any error in the admission of the field test results was harmless. We conclude
that the evidence is sufficient to sustain Smart’s conviction for Class D felony
possession of methamphetamine, but the evidence is insufficient to sustain his
conviction for Class D felony unlawful possession of a syringe. We affirm in
part and reverse in part.
[23] Affirmed in part and reversed in part.
[24] Riley, J., and Bailey, J., concur.
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