                                                                                FILED
                                                                        Dec 05 2019, 5:37 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Ryan D. Bower                                             Curtis T. Hill, Jr.
      Bower Law Office, LLC                                     Attorney General of Indiana
      New Albany, Indiana                                       Samuel J. Dayton
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jennifer L. Hall,                                         December 5, 2019
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                19A-CR-203
              v.                                                Appeal from the Washington
                                                                Superior Court
      State of Indiana,                                         The Honorable Frank Newkirk,
      Appellee-Plaintiff.                                       Jr., Judge
                                                                Trial Court Cause No.
                                                                88D01-1802-F4-173



      Mathias, Judge.


[1]   Jennifer Hall (“Hall”) was convicted in Washington Superior Court of Level 4

      felony aiding the dealing of a narcotic drug. Hall appeals her conviction and

      argues that the evidence is insufficient to prove that she “manufactured” heroin,

      the enhancing circumstance that elevated her offense to a Level 4 felony. Hall

      also argues that the trial court committed fundamental error when it admitted
      Court of Appeals of Indiana | Opinion 19A-CR-203 | December 5, 2019                           Page 1 of 11
      evidence of her prior criminal history and drug use in violation of Evidence

      Rule 404(b).


[2]   Concluding that Hall has not established fundamental error, but that the

      evidence is insufficient to support her Level 4 felony conviction, we reverse and

      remand with instructions to vacate Hall’s Level 4 felony conviction, enter a

      judgment of conviction for Level 5 felony dealing, and resentence Hall

      accordingly.


                                    Facts and Procedural History
[3]   On October 12, 2017, Special Agent Kristi Schumacher (“Agent Schumacher”) 1

      of the Bureau of Alcohol, Tobacco, Firearms, and Explosives worked with a

      confidential informant (“CI”) to set up a controlled buy for heroin from John

      Losson (“Losson”). The CI arranged for Agent Schumacher to purchase one

      gram of heroin for $200.00.


[4]   Agent Schumacher and the CI arrived at the prearranged location of the buy, an

      alley near CVS in Salem, Indiana. Shortly thereafter, a silver vehicle drove into

      the alley, and Agent Schumacher recognized the driver, Losson. She also

      noticed a woman, later identified as Hall, sitting in the passenger seat.


[5]   Agent Schumacher and the CI walked up to Losson’s vehicle on the passenger

      side. Losson handed a baggie containing heroin to Hall, and Hall handed it to




      1
          Agent Schumacher was an Indiana State Trooper on the date of the controlled buy.


      Court of Appeals of Indiana | Opinion 19A-CR-203 | December 5, 2019                    Page 2 of 11
      Agent Schumacher. Because the baggie did not contain a gram of heroin, Agent

      Schumacher gave $140 to Hall. Hall then gave the money to Losson. The agent

      asked if “the product was good.” Tr. p. 64. Losson replied, “oh yeah,” and Hall

      looked at the agent and shook her head yes. Id. The CI then asked Losson if she

      could buy “go go,” i.e. methamphetamine, and Losson replied that he was

      working on that. Id. The substance in the baggie was later confirmed to be .28

      gram of heroin.


[6]   On February 23, 2018, Hall was charged with Level 4 felony aiding, inducing,

      or causing dealing in a narcotic drug. The State alleged that Hall was an

      accomplice to manufacturing heroin because Losson packaged the drug.


[7]   A two-day jury trial commenced on October 16, 2018. Agent Schumacher and

      Hall were the only witnesses at trial. Both Hall’s counsel and the State elicited

      testimony concerning her prior criminal convictions and her history of drug use.


[8]   The jury was given an accomplice liability instruction, and in addition to an

      instruction on the Level 4 felony offense, the jury was instructed that it could

      find Hall guilty of the lesser-included Level 5 felony offense. Tr. pp. 140, 142.

      Hall was found guilty of the Level 4 felony as charged. On December 26, 2018,




      Court of Appeals of Indiana | Opinion 19A-CR-203 | December 5, 2019       Page 3 of 11
       the trial court ordered her to serve six years in the Department of Correction.

       Hall appeals her conviction.2


                                  I. Sufficient Evidence of Manufacturing

[9]    First, Hall argues that the State failed to prove that she “manufactured” heroin,

       which elevated her offense from a Level 5 felony to a Level 4 felony. A person

       who knowingly or intentionally delivers heroin commits a Level 5 felony. See

       Ind. Code § 35-48-4-1(a)(1). However, the offense is a Level 4 felony if “the

       amount of the drug involved is less than one (1) gram and an enhancing

       circumstance applies[.]” I.C. 35-48-4-1(c)(2).


[10]   Enhancing circumstances are defined in Indiana Code section 35-48-1-16.5 and

       include that “the person manufactured or financed the manufacture of the

       drug.” And “manufacture” means,


               (1) For offenses not involving marijuana, hashish, or hash oil:

                        (A) the production, preparation, propagation,
                        compounding, conversion, or processing of a controlled
                        substance, either directly or indirectly by extraction from
                        substances of natural origin, independently by means of
                        chemical synthesis, or by a combination of extraction and
                        chemical synthesis, and includes any packaging or repackaging
                        of the substance or labeling or relabeling of its container. It does




       2
         We held oral argument in this case at Hamilton Southeastern High School in Fishers, Indiana, on
       November 25, 2019. We extend our gratitude to the students, faculty, and staff for their hospitality. We
       would like to specially acknowledge Mary Armstrong and Janet Chandler for their kind assistance. We also
       thank the attorneys for the quality of their written and oral advocacy.

       Court of Appeals of Indiana | Opinion 19A-CR-203 | December 5, 2019                           Page 4 of 11
                        not include the preparation, compounding, packaging, or
                        labeling of a controlled substance:

                                 (i) by a practitioner as an incident to administering
                                 or dispensing of a controlled substance in the course
                                 of a professional practice; or

                                 (ii) by a practitioner, or by the practitioner's
                                 authorized agent under the practitioner's
                                 supervision, for the purpose of, or as an incident to,
                                 research, teaching, or chemical analysis and not for
                                 sale; or

                        (B) the organizing or supervising of an activity described in
                        clause (A).

       Ind. Code § 35-48-1-18(1) (emphasis added).


[11]   Here, the State charged Hall as follows:


               on or about the 12th day of October, 2017, . . . Hall did then and
               there knowingly or intentionally aid, induce or cause JOHN J.
               LOSSON . . . in the commission of the offense of DEALING IN
               A NARCOTIC DRUG where the amount of the drug involved is
               less than one (1) gram and John J. Losson manufactured the drug
               by packaging, by participating in a hand to hand buy of heroin
               between John J. Losson and an undercover officer wherein
               Jennifer L. Hall was the front passenger in a vehicle driven by
               John J. Losson; Jennifer L. Hall received the suspected heroin
               from John J. Losson, accepted the pre-recorded enforcement aid
               money from the undercover officer, and handed said undercover
               officer the suspected heroin[.]


       Appellant’s App. p. 17.




       Court of Appeals of Indiana | Opinion 19A-CR-203 | December 5, 2019            Page 5 of 11
[12]   There is no question that Losson and Hall committed Level 5 felony dealing in

       heroin, and the parties stipulate to the propriety of that conviction. With regard

       to her claim of insufficient evidence, Hall only challenges the Level 4 felony

       enhancement and argues that the evidence was insufficient to establish that she

       aided Losson in packaging the heroin.


[13]   The State argues that Agent Schumacher’s testimony concerning the common

       practices of drug dealers in southern Indiana is sufficient evidence to support

       the Level 4 felony enhancement. The agent testified that in her “training and

       experience and working as an undercover officer in southern Indiana,” dealers

       typically sell small amounts of the drug in “either a cut off corner baggies [sic]

       or small Ziploc baggies.” Tr. p. 58. Dealers generally “buy what they can

       afford, usually an eight (8) ball, which is around, it’s approximately three point

       five (3.5) grams. They’ll take that back to their home or where ever they cut it,

       and then they divvy that up into the corner baggies, smaller packages and then

       push that out into the community.” Tr. p. 59.


[14]   The agent testified that the CI arranged for her to purchase approximately one

       gram of heroin for $200 from Losson, a suspected dealer in the area. The agent

       then described the drug deal that led to the charges in this case. During cross-

       examination, the agent was asked if she believed that Losson packaged the

       heroin, and she replied in the affirmative. Tr. p. 76.


[15]   Agent Schumacher’s testimony is too speculative to prove beyond a reasonable

       doubt that Losson packaged the heroin that was sold in this case. We agree


       Court of Appeals of Indiana | Opinion 19A-CR-203 | December 5, 2019       Page 6 of 11
       with the State that it is likely that he did package a larger amount of heroin into

       smaller baggies. But the mere likelihood that he did so based on common

       practices of drug dealers is not sufficient evidence to prove beyond a reasonable

       doubt that Losson packaged the heroin.


[16]   Importantly, even if the agent’s testimony was sufficient to prove that Losson

       packaged the heroin, there is no evidence that Losson packaged the heroin in

       Hall’s presence or that Hall had any knowledge of its packaging. The

       accomplice liability statute provides that “[a] person who knowingly or

       intentionally aids, induces, or causes another person to commit an offense”

       commits that offense. Ind. Code § 35-41-2-4. When we evaluate a defendant’s

       culpability as an accomplice, we consider the defendant’s: (1) presence at the

       crime scene; (2) companionship with another at the crime scene; (3) failure to

       oppose the commission of the crime; and (4) course of conduct before, during,

       and after the commission of the crime. Griffin v. State, 16 N.E.3d 997, 1004 (Ind.

       Ct. App. 2014).


[17]   Here, there was no evidence that Hall had any knowledge of how or when

       Losson packaged the heroin. There was no evidence that Losson had scales or

       baggies in Hall’s presence or in the vehicle. The State only proved that Hall

       knew that Losson was dealing heroin to Agent Schumacher, and Hall was

       present during the crime and assisted Losson. This evidence is sufficient to

       support a Level 5 felony dealing conviction, but not the Level 4 felony dealing

       conviction requiring additional proof of manufacturing. See I.C. §§ 35-48-4-1,

       35-48-1-16.5.

       Court of Appeals of Indiana | Opinion 19A-CR-203 | December 5, 2019       Page 7 of 11
[18]   For all of these reasons, we conclude that the evidence is insufficient to support

       Hall’s Level 4 felony dealing conviction. We reverse her conviction and remand

       this case to the trial court with instructions to vacate Hall’s Level 4 felony

       conviction, enter a judgment of conviction for Level 5 felony dealing and

       resentence Hall accordingly.3


                     II. Evidence of Hall’s Prior Criminal History and Drug Use

[19]   Hall also argues that her conviction should be reversed because the trial court

       admitted evidence of unrelated bad acts that prejudiced Hall and subjected her

       to grave peril. Initially, we observe that Indiana Evidence Rule 404(b) generally

       prohibits “[e]vidence of a crime, wrong, or other act . . . to prove a person’s

       character in order to show that on a particular occasion the person acted in

       accordance with the character.” But such evidence “may be admissible for

       another purpose, such as proving motive, opportunity, intent, preparation, plan,

       knowledge, identity, absence of mistake, or lack of accident.” Id. Moreover,


               Evidence Rule 404(b) is designed to prevent the jury from
               making the “forbidden inference” that prior wrongful conduct
               suggests present guilt. . . . [T]he purpose behind Evidence Rule
               404(b) is to prevent[ ] the State from punishing people for their
               character, and evidence of extrinsic offenses poses the danger
               that the jury will convict the defendant because ... he has a
               tendency to commit other crimes. In assessing the admissibility
               of evidence under Evidence Rule 404(b), the trial court must first
               determine that the evidence of other crimes, wrongs, or acts is



       3
        Because we reverse Hall’s Level 4 felony dealing conviction, we need not address her argument that the
       manufacturing statute is unconstitutionally vague and overbroad.

       Court of Appeals of Indiana | Opinion 19A-CR-203 | December 5, 2019                            Page 8 of 11
               relevant to a matter at issue other than the defendant's propensity
               to commit the charged act, and then balance the probative value
               of the evidence against its prejudicial effect pursuant to Evidence
               Rule 403. The effect of Rule 404(b) is that evidence is excluded
               only when it is introduced to prove the forbidden inference of
               demonstrating the defendant's propensity to commit the charged
               crime.


       Laird v. State, 103 N.E.3d 1171, 1176–77 (Ind. Ct. App. 2018) (citations and

       internal quotation marks omitted), trans. denied.


[20]   Hall mentions numerous instances wherein she claims evidence was admitted

       in violation of Evidence Rule 404(b). These include testimony that Hall’s

       deceased husband was a drug dealer who was shot and killed, that her two

       pregnancies resulted in still births, that she is addicted to methamphetamine,

       her association with drug dealers, her prior criminal history, and testimony that

       she lied in a prior plea hearing when she admitted to committing theft so that

       she could be released from jail. Importantly, Hall’s testimony concerning these

       prior acts was elicited during her direct examination. See Tr. pp. 83–85, 89–90.


[21]   We agree with the State that Hall has invited the alleged error of which she now

       complains. A party may not take advantage of an error that she invites.

       Brewington v. State, 7 N.E.3d 946, 975 (Ind. 2014); see also Durden v. State, 99

       N.E.3d 645, 651 (Ind. 2018) (stating that invited error forbids a party from

       “taking advantage of an error that she commits, invites, or which is the natural

       consequence of her own neglect or misconduct”). And “[i]nvited error

       precludes relief from counsel’s strategic decisions gone awry.” Brewington, 7


       Court of Appeals of Indiana | Opinion 19A-CR-203 | December 5, 2019        Page 9 of 11
       N.E.3d at 975. See also Batchelor v. State, 119 N.E.3d 550, 558 (Ind. 2019)

       (noting care must be taken to ensure the record demonstrates “the error resulted

       from the appellant's affirmative actions as part of a deliberate, well-informed

       trial strategy”) (internal quotation omitted).


[22]   Hall also challenges testimony that the State elicited without objection on cross-

       examination. During questioning relating to Hall’s prior drug use and how

       often she purchased drugs, the State asked her who her dealer was. Hall refused

       to give the State his name. The State repeatedly asked Hall for the name of her

       dealer and used Hall’s refusal to name the person to attack her credibility.


[23]   Because Hall’s counsel failed to object to the State’s questions, Hall must

       establish fundamental error. “An error is fundamental . . . if it ‘made a fair trial

       impossible or constituted a clearly blatant violation of basic and elementary

       principles of due process presenting an undeniable and substantial potential for

       harm.’” Durden, 99 N.E.3d at 652 (quoting Knapp v. State, 9 N.E.3d 1274, 1281

       (Ind. 2014)). “These errors create an exception to the general rule that a party’s

       failure to object at trial results in a waiver of the issue on appeal.” Durden, 99

       N.E.3d at 652 (citing Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002)). The

       exception is very narrow and “encompasses only errors so blatant that the trial

       judge should have acted independently to correct the situation.” Id.


[24]   Because Hall testified extensively concerning her prior drug use and criminal

       history, we cannot conclude that admission of the challenged evidence

       constitutes fundamental error. Moreover, the evidence overwhelmingly


       Court of Appeals of Indiana | Opinion 19A-CR-203 | December 5, 2019        Page 10 of 11
       establishes that Hall committed Level 5 dealing, a conclusion that Hall does not

       challenge on appeal. See Halliburton v. State, 1 N.E.3d 670, 683 n.7 (Ind. 2013)

       (“Where evidence of guilt is overwhelming any error in the admission of

       evidence is not fundamental.”).


                                                  Conclusion
[25]   The evidence is insufficient to support Hall’s Level 4 felony dealing conviction

       because the State failed to prove an enhancing circumstance as required by

       Indiana Code section 35-48-4-1(c)(2). We therefore reverse Hall’s Level 4 felony

       conviction and remand this case to the trial court with instructions to enter a

       judgment of conviction for Level 5 felony dealing and resentence Hall

       accordingly.


[26]   Reversed and remanded for proceedings consistent with this opinion.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-203 | December 5, 2019     Page 11 of 11
