Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

WILLIAM W. GOODEN                                   GREGORY F. ZOELLER
Mount Vernon, Indiana                               Attorney General of Indiana

                                                    LARRY D. ALLEN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana

                                                                           Jun 09 2014, 9:18 am

                               IN THE
                     COURT OF APPEALS OF INDIANA

JAROD G. ALLRED,                                    )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 65A01-1309-CR-393
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                       APPEAL FROM THE POSEY CIRCUIT COURT
                          The Honorable James M. Redwine, Judge
                              Cause No. 65C01-1210-FA-465



                                           June 9, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Following a bench trial, Jarod G. Allred appeals his two convictions for Class B

felony dealing in a Schedule III controlled substance,1 raising the following issue: whether

the State sufficiently proved that the substances Allred sold were Schedule III controlled

substances as defined by Indiana Code section 35-48-2-8(e)(4).

       We reverse.

                           FACTS AND PROCEDURAL HISTORY

       The facts most favorable to the judgment are that on May 2, 2012, a confidential

informant (“the CI”), who had been working with the multi-department Posey County

Narcotics Unit, received a text message on his cell phone from Allred, in which Allred

stated he had some “Lortabs” for sale. Tr. at 42. The CI contacted Detective Jeremy

Fortune of the Posey County Sheriff’s Department about the potential purchase from

Allred. A deal was arranged between the CI and Allred, and the CI then met with Detective

Fortune to prepare for the controlled drug buy. Law enforcement searched the CI’s vehicle

and provided him with fifty dollars to use for the purchase, and the CI wore audio and

video recording equipment during the meeting with Allred. The CI went to Allred’s

residence, where he lived with his parents, and Allred sold ten pills to the CI for fifty

dollars.

       At some point thereafter, Allred and the CI engaged in similar text messaging.

According to the CI, Allred “still had some that he was trying to get rid of” and wanted to

know if the CI had any marijuana to trade for the pills. Id. at 45-46. The CI told Allred



       1
           See Ind. Code § 35-48-4-2(a).


                                             2
that he did not but that he had cash, so they set up another deal. Following the same

protocol and procedure, the CI went to Allred’s house on May 15, 2012, and Allred sold

five pills to the CI for twenty-five dollars.

       After Allred was arrested, he agreed to an interview with police on October 19,

2012. Allred told Detective Thomas Rueger of the Mount Vernon Police Department that

the pills he sold on May 2 and May 15 were “Lortabs.” State’s Ex. 8 at 4. When asked if

those are also known as “Hydrocodones,” Allred replied, “I believe so, sir.” Id. Allred

explained that the pills had been prescribed to him and that he sold them because he needed

money.

       The State initially charged Allred with three counts. The first two charged Allred

with Class A felony dealing in a Schedule II controlled substance within one thousand feet

of a family housing complex, and the third charge was Class D felony maintaining a

common nuisance. The State amended the charges so that Count I and Count II charged

Class A felony dealing in a Schedule III controlled substance within one thousand feet of

a family housing complex; Count III was unchanged.

       At the August 2013 bench trial, the State called as a witness Detective Rueger, who

had interviewed Allred on October 19, 2012. He stated that Allred was very cooperative

and did not ask for an attorney. The videotape and transcript of the interview were admitted

as evidence. During the interview, Allred told Detective Rueger that he sold Lortab pills

on a couple of occasions, generally toward the end of a month, when he needed money.

Allred told Detective Rueger that he had been prescribed the medication as a result of

injuries he sustained while serving in the United States Army in Iraq. Allred said it was

                                                3
his recollection that the prescription bottle contained sixty pills and that of that sixty, he

sold approximately ten over the course of several months.

       The CI also testified for the State. He described arrangement of and the procedures

followed during the two May 2012 controlled drug buys from Allred. When he was asked

what he purchased from Allred, he replied, “Lortabs.” Tr. at 42. The CI stated that before

the CI became an informant, he and Allred had engaged in approximately ten prior

transactions, “mostly” trades, where Allred would provide methadone in exchange for the

CI providing marijuana. Id. at 51, 53.

       Indiana State Police forensic scientist Rebecca Nickless also testified for the State.

Nickless testified that the markings on the exterior of the pills indicated that they were

Lortab pills. Id. at 63, 66. She testified that she analyzed a sample of one of the ten pills

that the CI bought from Allred on May 2, 2012. It contained dihydrocodeinone, also known

as hydrocodone, a controlled substance, and acetaminophen, a non-narcotic substance. The

net weight of the ten pills was 6.51 grams. Nickless also analyzed a sample of one of the

five pills that the CI purchased from Allred on May 15, 2012. Like the other sample, it

contained dihydrocodeinone and acetaminophen. The net weight of that one pill was .64

grams and the net weight of the remaining pills was 2.60 grams. Nickless testified that

each tablet contained 7.5 milligrams of dihydrocodeinone. Id. at 69-70.

       Allred testified in his own defense. Contrary to what he had told Detective Rueger

in the police interview, Allred testified that the “pain killer” pills he sold on May 2 and 15

were not his own; rather, he had stolen them from his parents. Id. at 82. Allred also testified



                                              4
that when he was selling the pills to the CI in May 2012, he did not know the type of pain

pills that he was selling:

              Q:      [W]hat you actually sold him on May 2nd is what?
              A:      It was a pain killer.
              Q:      Did you know the type of pain killer?
              A:      Not at the time, I didn’t.

Id. at 82. His attorney questioned him about the next sale, occurring May 15:

              Q:      Okay. The second sale that you made, what drug did you
                      believe that you sold him?
              A:      The same as the first time. Lo lo, or pain killer.
              Q:      Did you know which specific pain killer it was?
              A:      Not at the time.

Id. at 84. When he was asked if he knew they were Lortab pills, Allred replied, “No. I

wasn’t for sure that they were. I just grabbed them.” Id. Upon cross examination, the State

asked Allred about a couple of Facebook messages that Allred sent to his female cousin a

few weeks before trial, asking her for “a big time favor/question,” namely, whether she

“would be willing to tell [his] attorney” that the CI had contacted her a number of times

and the type of pills that the CI wanted to purchase from Allred were “ritalin instead of

methadone.” Id. at 88. He continued, “[Y]ou can say u dont remember what the pill was

called but u can say it wasnt lortab[.]” State’s Ex. 11.

       Following the conclusion of evidence, the trial court found Allred guilty of lesser

included offenses on Counts I and II, dealing in a Schedule III controlled substance as a

Class B felony, and it found Allred not guilty of Count III. Following a subsequent

sentencing hearing, Allred now appeals.




                                              5
                            DISCUSSION AND DECISION

       Allred argues that there is insufficient evidence that the substances he sold on May

2 and May 15, 2012 were Schedule III controlled substances as defined by the Indiana

Code. When reviewing the sufficiency of the evidence, we consider only the probative

evidence and reasonable inferences supporting the verdict. Boggs v. State, 928 N.E.2d 855,

864 (Ind. Ct. App. 2010), trans. denied. We do not reweigh the evidence or assess witness

credibility. Id. We consider conflicting evidence most favorably to the trial court’s ruling.

Id. We will affirm the conviction unless no reasonable fact-finder could find the elements

of the crime proven beyond a reasonable doubt. Id. A conviction may be based upon

circumstantial evidence alone. Id.

       With respect to offenses involving controlled substances, the State must prove, as

an essential element, the proscribed drug falls within the applicable statutory provision.

Porod v. State, 878 N.E.2d 415, 417 (Ind. Ct. App. 2007) (citing Barnett v. State, 579

N.E.2d 84, 86 (Ind. Ct. App. 1991), trans. denied). If a drug is identified in court by a

name specifically designated as a controlled substance by the Indiana Code, then the State

has proven as a matter of law the drug is a controlled substance. Id. If, however, the

substance is not specifically enumerated by the Code as a controlled substance, the State

must offer extrinsic evidence to prove the substance falls within the Code’s definition. Id.

Our Supreme Court has held that “‘[t]he opinion of someone sufficiently experienced with

the drug may establish its identity, as may other circumstantial evidence,” but noted that

“chemical analysis is one way, and perhaps the best way, to establish the identity of a



                                             6
compound.’” Boggs, 928 N.E.2d at 864-65 (quoting Vasquez v. State, 741 N.E.2d 1214,

1216-17 (Ind. 2001)).

        Allred was convicted of two counts of knowingly or intentionally delivering a

Schedule III controlled substance, namely dihydrocodeinone.                       Ind. Code § 35-48-4-

2(a)(1)(C). Indiana Code section 35-48-2-8(e)(4) defines what may be considered a

Schedule III narcotic containing dihydrocodeinone. It reads:

        (e) Narcotic Drugs. Unless specifically excepted or unless listed in another
        schedule, any material, compound, mixture, or preparation containing any of
        the following narcotic drugs, or their salts calculated as the free anhydrous
        base or alkaloid, in the following limited quantities:

                   (4) Not more than 300 milligrams of dihydrocodeinone, per 100
                  milliliters2 or not more than 15 milligrams per dosage unit, with one
                  (1) or more active nonnarcotic ingredients in recognized therapeutic
                  amounts (9806).

        The question presented to us is not whether Allred sold drugs. There is sufficient

evidence that he did. The CI said that Allred sold him “Lortabs.”3 Tr. at 42. Detective

Fortune testified that, prior to the CI’s controlled drug purchases, law enforcement had

been receiving complaints about Allred “dealing Lortabs.” Id. at 28. Allred told Detective

Rueger in the October 2012 interview that he sold “Lortabs.”4 State’s Ex. 8 at 4. Allred

did not dispute that he had asked his cousin prior to trial if she would tell his attorney that


        2
          Because the substances sold by Allred were not in liquid form, the portion of the statute referring
to “not more than 300 milligrams of dihydrocodeinone per 100 milliliters” is not applicable here; the
relevant portion of the statute is the latter part stating, “not more than 15 milligrams per dosage unit, with
one (1) or more active nonnarcotic ingredients in recognized therapeutic amounts[.]”
        3
            We note that the Indiana Code does not identify Lortab by name as being a controlled substance.
        4
           Although Allred later testified that he did not know the identity of the pills he was selling to the
CI, the trial court as the fact finder was free to believe or disbelieve him. McClendon v. State, 671 N.E.2d
486, 488 (Ind. Ct. App. 1996).

                                                      7
the pills he sold were Ritalin, not Lortab. Rather, the question Allred presents to us is

whether the State presented sufficient evidence that the pills he sold were a Schedule III

controlled substance as defined by Indiana Code section 35-48-2-8(e)(4), which required

the State to prove that the pills Allred sold contained not more than 15 milligrams of

dihydrocodeinone per dosage unit, with one or more active nonnarcotic ingredients in

recognized therapeutic amounts. Allred concedes that the pills he sold were comprised of

dihydrocodeinone mixed with acetaminophen; he argues, however, the State failed to

establish that the acetaminophen contained in the tablets was in a “recognized therapeutic

amount” as required by the statute.

       In large part, Allred’s argument is based on the testimony of Nickless, who, when

asked on cross-examination if the acetaminophen was in a recognized therapeutic amount,

initially responded, “Yes. Because it was 500 milligrams.” Tr. at 71. However, when she

was further pressed to define the term “recognized therapeutic amount,” she stated, “I know

what I think it means,” namely that the drug was “used in a medicinal way,” but

acknowledged that that she did not know with certainty the definition of the term. Id. at

72. The cross-examination continued:

       Q:     Do you know what the therapeutic amounts would be for this non
              narcotic portion of this pill?

       A:     I’m not a pharmacist; I’m not a toxicologist, so I cannot answer that.
              I mean I don’t know the answer to that question.

Id. Allred’s counsel had Nickless confirm that the sample contained less than fifteen

milligrams of dihydrocodeinone per dosage unit and one or more nonnarcotic ingredients,

and then Allred’s counsel asked,

                                            8
       Q:     But, you can’t testify that that was in recognized therapeutic amounts?
              Is that fair to say?

       A:     I can say that there was 500 milligrams of acetaminophen in there but,
              what the words recognized therapeutic amounts means, I don’t know.

Id.; see also id. at 73 (stating that she could not testify whether ingredients were in

recognized therapeutic amounts).        Without that evidence concerning “recognized

therapeutic amounts,” Allred claims that the State failed to prove an essential element of

the crime, and, therefore, did not meet its burden of proving beyond a reasonable doubt

that he committed the crime charged.

       In support of his position, he relies upon Barnett, where a defendant appealed his

conviction for possession of a Schedule III controlled substance with intent to deliver. 579

N.E.2d at 85. One of the issues presented on appeal was whether the State had proven that

the substance involved was a Schedule III controlled substance. In Barnett, the State was

required to prove that the substance contained:

       (1) Not more than 1.8 grams of codeine, per 100 milliliters or not more than
       90 milligrams per dosage unit, with an equal or greater quantity of an
       isoquinoline alkaloid of opium.

       (2) Not more than 1.8 grams of codeine, per 100 milliliters or not more than
       90 milligrams per dosage unit, with one (1) or more active, nonnarcotic
       ingredients in recognized therapeutic amounts.

Ind. Code § 35-48-2-8(e)(2). The chemist testified that the substance was codeine, “a

controlled substance,” and acetaminophen. Barnett, 579 N.E.2d at 87. However, “[n]o

testimony was given . . . regarding the quantity of codeine present in each tablet as required

by [Indiana Code section] 35-48-2-8.” Id. Furthermore, the Barnett court noted, contrary

to the chemist’s testimony, codeine, by itself, is not designated as a Schedule III controlled

                                              9
substance. Id. Rather, “[t]o bring the drug within the Code’s provisions, therefore,

additional extrinsic evidence regarding the quantity of codeine by weight and chemical

properties of the compound or mixture is required.” Id. The court determined that the

State’s failure to establish that the codeine mixed with acetaminophen was a Schedule III

controlled substance constituted a failure to prove an essential element of the offense, and,

therefore, it reversed Barnett’s conviction. Id.

       Barnett is arguably distinguishable from the facts before us in a couple of respects

because, in Barnett, there was no testimony given regarding the quantity of codeine present

in each tablet. In contrast, here, Nickless testified that each tablet contained 7.5 milligrams

of dihydrocodeinone. Tr. at 69-71. Further, the Barnett case does not expressly state

whether the chemist testified to the amount of acetaminophen present, whereas Nickless

testified that each tablet contained 500 milligrams of acetaminophen. Id. at 69-71, 73.

       Despite those differences, we find Barnett relevant to our analysis. “With respect

to offenses involving controlled substances, the State must prove, as an essential element,

the proscribed drug falls within the applicable statutory provision.” Barnett, 579 N.E.2d

at 86. Like codeine in Barnett, dihydrocodeinone is not a controlled substance listed in

Schedule III; it is only a controlled substance if mixed with one or more active, nonnarcotic

ingredients in recognized therapeutic amounts. This is what the statute requires. “We

cannot . . . parse the definitional portion of the statute, picking and choosing to honor the

use of certain words and disregard others[.]” Hatcher v. State, 762 N.E.2d 170, 175 (Ind.

Ct. App. 2002) (J. Sullivan’s concurrence, discussing statutory definition of

“manufacture”), trans. denied. Although Nickless initially testified that the 500 milligrams

                                              10
was a recognized therapeutic amount, upon further questioning that asked her to explain or

define the term “recognized therapeutic amount,” she said what she assumed it meant and

eventually relented, “I don’t know.” Tr. at 72. “We cannot avoid the legislature’s

obviously conscious choice of words in drafting the statute,” and we conclude that the

State’s evidence in this case fell short of what our legislature has required the State to prove

under Indiana Code section 35-48-2-8(e)(4).5 Hatcher, 672 N.E.2d at 174.

        Reversed.

FRIEDLANDER, J., concurs.

BAILEY, J., dissents with separate opinion.




        5
          We note that our Supreme Court in Reemer v. State, 835 N.E.2d 1005, 1008-09 (Ind. 2005), held
that expert witnesses or laboratory results are not required to prove composition of over-the-counter or
prescription drugs when found in unaltered state and its weight and contents are described in required
labeling, which is admissible under hearsay exception. However, in this case, no prescription labeling was
offered or admitted.


                                                   11
                              IN THE
                    COURT OF APPEALS OF INDIANA

JAROD G. ALLRED,                                     )
                                                     )
       Appellant-Defendant,                          )
                                                     )
              vs.                                    )   No. 65A01-1309-CR-393
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


BAILEY, Judge, dissenting.

       The majority reverses Allred’s convictions for Dealing in a Schedule III Controlled

Substance, as a Class B felony, on the basis of insufficiency of the evidence presented at

trial. Because I disagree with the majority’s conclusion that the evidence was insufficient

to sustain the conviction, I respectfully dissent.

       Allred was convicted under Indiana Code subsection 35-48-4-2(a)(1)(C), which

makes it a Class B felony to knowingly or intentionally deliver a pure or adulterated

controlled substance, classified in schedule I, II, or III. Here, Allred was charged with

distributing dihydrocodeinone. Our statutes designate that drug as a schedule III narcotics

narcotic if it meets the following criteria:

       Unless specifically excepted or unless listed in another schedule, any
       material, compound, mixture, or preparation containing any of the following
       narcotic drugs, or their salts calculated as the free anhydrous base or alkaloid,
       in the following limited quantities:




                                               12
              (4) Not more than 300 milligrams of dihydrocodeinone, per 100
              milliliters or not more than 15 milligrams per dosage unit, with one
              (1) or more active nonnarcotic ingredients in recognized therapeutic
              amounts (9806).

Ind. Code Ann. § 35-48-2-8(e). To obtain a conviction under Section 35-48-4-2 as charged,

then, the State had to prove beyond a reasonable doubt that the Lortab pills Allred sold

satisfied the statutory requirements for a schedule III narcotic.

       The majority fixes on the statutory phrase, “one or more active nonnarcotic

ingredients in recognized therapeutic amounts,” id., and holds that because the State did

not provide testimony that the nonnarcotic portion (here, acetaminophen) of the tablets

Allred sold was a therapeutic amount, the State’s case fails for lack of proof. The majority

correctly notes that chemical analysis and testimony of someone sufficiently experienced

with a drug may be the best evidence that a drug belongs to a certain schedule, Boggs v.

State, 928 N.E.2d 855, 864-65 (Ind. Ct. App. 2010). Then the majority holds that testimony

of Nickless, the State’s expert witness, failed to establish that the acetaminophen in the

Lortab pills was present in a recognized therapeutic amount. And in a footnote, the

majority distinguishes this case from that of our supreme court’s holding in Reemer v.

State, noting that in Reemer there was hearsay evidence in the form of a pharmaceutical

label establishing the identity of the drug in question, whereas here no such labelling exists.

Slip Op. at 11 (citing Reemer, 835 N.E.2d 1005, 1007-10 (Ind. 2005)).

       Consistent with Reemer, expert testimony is not the only evidence that will suffice

to sustain a conviction. Boggs, 928 N.E.2d at 864-65. Nor, I think, is a pharmaceutical

label necessary in each case. Here, there was evidence in the form of both Allred’s post-


                                              13
Miranda statements to Detective Fortune that Allred possessed Lortab issued under a

prescription.   This supports the requirement of Subsection 35-48-2-8(e)(4) that the

nonnarcotic ingredients of the pills were in recognized therapeutic amounts. During his

post-Miranda statement to Detective Fortune, Allred indicated that he obtained Lortab pills

as the result of a prescription issued after he was injured during his military service, and

Allred does not now contest the admissibility of that statement. At trial, he testified that

he didn’t know what pills he was selling, but that he had obtained them from his parents’

medications.    And Nickless, the State’s chemist, testified that the pills contained

dihydrocodeinone and acetaminophen.

       Given this evidence—in particular Allred’s multiple statements indicating that he

knew he was selling a prescription drug of some kind, whether through his own prescription

or that of one of his parents—I think that there was sufficient evidence for a reasonable

fact-finder to infer that the Lortab pills Allred sold were proved to be schedule III narcotics.

Accordingly, I would affirm Allred’s convictions, and must therefore, respectfully, dissent.




                                              14
