                                                                   May 26 2015, 8:54 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Leanna Weissmann                                          Gregory F. Zoeller
Lawrenceburg, Indiana                                     Attorney General of Indiana

                                                          George P. Sherman
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

William Bowman,                                           May 26, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          21A04-1404-CR-180
        v.                                                Appeal from the Fayette Circuit
                                                          Court; The Honorable Beth A.
                                                          Butsch, Judge;
State of Indiana,                                         21C01-1310-FA-768
Appellee-Plaintiff.




May, Judge.




Court of Appeals of Indiana | Opinion 21A04-1404-CR-180 | May 26, 2015                      Page 1 of 6
[1]   William Bowman appeals his conviction of and sentence for Class A felony

      dealing in a narcotic within 1,000 feet of a school1 and his adjudication as an

      habitual offender.2 As the State did not prove Bowman committed Class A

      felony dealing in a narcotic within 1,000 feet of a school, we reverse.


                                     Facts and Procedural History
[2]   On October 29, 2012, Ciji Angel, who had previously agreed to be a

      confidential informant, contacted Detective Scott Phillips. She claimed she had

      just purchased heroin from Bowman, with whom she periodically lived. She

      offered to complete a controlled buy of heroin from Bowman. Detective

      Phillips agreed and met Angel in the parking lot of an elementary school

      located not far from where Angel and Bowman lived.


[3]   When Detective Phillips arrived, Angel gave him heroin that she claimed

      Bowman had sold to her earlier that day. Detective Phillips then searched

      Angel’s purse and pockets, performed a pat down, and placed an audio/video

      recording device in Angel’s purse. He did not search inside Angel’s clothes

      because a female officer was not present. He gave Angel $160.00 in unmarked

      money and directed her to complete the controlled buy.


[4]   Angel went to Bowman’s apartment and came back with a substance in a

      baggie. Angel gave it to Detective Phillips, who did not field test it but testified



      1
          Ind. Code § 35-48-4-1 (2006).
      2
          Ind. Code § 35-50-2-8 (2005).


      Court of Appeals of Indiana | Opinion 21A04-1404-CR-180 | May 26, 2015      Page 2 of 6
      it “look[ed] like heroin.” (Tr. at 157.) The substance was not tested by the

      crime laboratory. The State charged Bowman with Class A felony dealing in a

      narcotic within 1,000 feet of a school, and it alleged Bowman was an habitual

      offender.


[5]   On March 18, 2014, a jury found Bowman guilty as charged and adjudicated

      him an habitual offender. On April 11, the trial court sentenced Bowman to

      forty-five years.


                                      Discussion and Decision
[6]   When reviewing sufficiency of evidence to support a conviction, we consider

      only the probative evidence and reasonable inferences supporting the fact-

      finder’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the fact-

      finder’s role, and not ours, to assess witness credibility and weigh the evidence

      to determine whether it is sufficient to support a conviction. Id. To preserve

      this structure, when we are confronted with conflicting evidence, we consider it

      most favorably to the fact-finder’s verdict. Id. We affirm a conviction unless no

      reasonable fact-finder could find the elements of the crime proven beyond a

      reasonable doubt. Id. It is therefore not necessary that the evidence overcome

      every reasonable hypothesis of innocence; rather, the evidence is sufficient if an

      inference reasonably may be drawn from it to support the fact-finder’s decision.

      Id. at 147.


[7]   To prove Bowman committed Class A felony dealing in a narcotic within 1,000

      feet of a school, the State was required to prove he knowingly or intentionally

      Court of Appeals of Indiana | Opinion 21A04-1404-CR-180 | May 26, 2015     Page 3 of 6
      possessed a narcotic, in this case heroin, with the intent to deliver that narcotic

      within 1,000 feet of a school. Ind. Code § 35-48-4-1 (2006). The State did not

      prove the substance Angel gave Detective Phillips was heroin, as Detective

      Phillips did not field test the substance and the crime laboratory did not test it.


[8]   The identity of a drug may be determined based on field testing or chemical lab

      testing. Bellamy v. State, 259 Ind. 254, 256, 286 N.E.2d 401, 403 (1972). In

      some instances, the identification of an illegal substance can be established

      based on the witness’ experience with the substance if the circumstances of the

      identification support the conclusion the witness’ identification is reliable.

      Vasquez v. State, 741 N.E.2d 1214, 1216-17 (Ind. 2001). Other circumstantial

      evidence may be sufficient to prove the identity of a substance without chemical

      lab testing. Smalley v. State, 732 N.E.2d 1231, 1234 (Ind. Ct. App. 2000). There

      was, however, no such evidence in this case.


[9]   Detective Phillips did not field test the substance that was obtained as a result of

      the “controlled” buy.3 In Vasquez, our Indiana Supreme Court upheld

      Vasquez’s conviction of Class B misdemeanor inhaling toxic vapors. Police

      testified the substance they discovered in Vasquez’s possession smelled and




      3
       While we find dispositive the insufficiency of the evidence against Bowman, we note there existed multiple
      peculiarities with the procedure preceding and following Angel’s controlled buy. Angel was not searched
      under her clothes, which Detective Phillips implied was normal procedure when a female officer is present.
      Angel and Detective Phillips testified Angel often kept her personal stash of drugs in her bra. Detective
      Phillips did not mark the money he gave Angel, and he testified regarding why he did not do so, “I know the
      money’s not coming back; we’re not going to do an arrest that night. If we were going to do an arrest I
      would mark it and uh take copies of it.” (Tr. at 157.) Finally, there existed no clear audio recording of a
      drug-related transaction.

      Court of Appeals of Indiana | Opinion 21A04-1404-CR-180 | May 26, 2015                          Page 4 of 6
       looked like toluene, a substance listed under Ind. Code § 35-46-6-2(2)(A) as a

       prohibited inhalant.


[10]   The Court held: “Although chemical analysis is one way, and perhaps the best

       way, to establish the identity of a compound, persons experienced in the area

       may be able to identify cigarette smoke, marijuana, and even toluene. This is

       true even if every citizen may not be up to that task.” Vasquez, 741 N.E.2d at

       1216-17. Unlike toluene, heroin does not have a distinct smell. Officer Phillips

       did not field test the substance Angel claimed she obtained from Bowman

       during the “controlled” buy, and he testified only that it “look[ed] like heroin.”

       (Tr. at 157.)


[11]   In Smalley, we upheld Smalley’s conviction of dealing in cocaine even though

       the confidential informant had ingested it. We held the circumstantial evidence

       presented by the State was sufficient to prove Smalley dealt in cocaine. Smalley

       himself testified the substance was cocaine and the confidential informant

       bought two baggies of cocaine within minutes of each other. In Smalley, we

       relied on Clifton v. State, 499 N.E.2d 256, 258 (Ind. 1986), in which

       circumstantial evidence supported Clifton’s conviction of dealing in heroin.

       Clifton was in possession of seven packages similar to those sold to a

       confidential informant, and all of those packages were tested at a chemical lab

       and were determined to be heroin. Id. None of the circumstances in Smalley or

       Clifton exist in the instant case.




       Court of Appeals of Indiana | Opinion 21A04-1404-CR-180 | May 26, 2015    Page 5 of 6
[12]   Because the State did not prove the product of the “controlled” buy was heroin,

       there was not sufficient evidence Bowman committed Class A felony dealing in

       a narcotic within 1,000 feet of a school. Accordingly, we reverse.                         4




[13]   Reversed.


       Barnes, J., and Pyle, J., concur.




       4
         As we reverse Bowman’s conviction, his adjudication as a habitual offender must also be reversed. See
       Whaley v. State, 843 N.E.2d 1, 10 n.8 (Ind. Ct. App. 2006) (a habitual offender adjudication is rendered
       invalid by the reversal of the crime to which it is attached), trans. denied.

       Court of Appeals of Indiana | Opinion 21A04-1404-CR-180 | May 26, 2015                            Page 6 of 6
