Jimmy Tyree Neal v. State of Indiana ( 2019 )


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  •                                                                          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
    Court of Appeals of Indiana | Opinion 19A-CR-174 | August 15, 2019         Page 2 of 12
    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
    Court of Appeals of Indiana | Opinion 19A-CR-174 | August 15, 2019          Page 3 of 12
    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
    Court of Appeals of Indiana | Opinion 19A-CR-174 | August 15, 2019          Page 4 of 12
    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. . . .
    Court of Appeals of Indiana | Opinion 19A-CR-174 | August 15, 2019                 Page 5 of 12
    (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:
    Court of Appeals of Indiana | Opinion 19A-CR-174 | August 15, 2019               Page 6 of 12
    (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.
    Court of Appeals of Indiana | Opinion 19A-CR-174 | August 15, 2019                Page 7 of 12
    [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:
    Court of Appeals of Indiana | Opinion 19A-CR-174 | August 15, 2019         Page 8 of 12
    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
    Court of Appeals of Indiana | Opinion 19A-CR-174 | August 15, 2019                 Page 9 of 12
    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.
    Court of Appeals of Indiana | Opinion 19A-CR-174 | August 15, 2019         Page 10 of 12
    [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
    Court of Appeals of Indiana | Opinion 19A-CR-174 | August 15, 2019       Page 11 of 12
    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.
    Court of Appeals of Indiana | Opinion 19A-CR-174 | August 15, 2019                               Page 12 of 12
    

Document Info

Docket Number: 19A-CR-174

Filed Date: 8/15/2019

Precedential Status: Precedential

Modified Date: 8/15/2019