Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                      Jan 21 2014, 10:16 am
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:

FREDERICK VAIANA                                    GREGORY F. ZOELLER
Voyles Zahn & Paul                                  Attorney General of Indiana
Indianapolis, Indiana
                                                    MONIKA PREKOPA TALBOT
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

CHRISTOPHER JETHROE,                                )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 49A05-1304-CR-155
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Steven R. Eichholtz, Judge
                            Cause No. 49G20-1105-FA-33644



                                         January 21, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Christopher Jethroe (“Jethroe”) was convicted following a jury trial of two counts

of dealing in cocaine,1 each as a Class A felony, dealing in a controlled substance within

one thousand feet of school property,2 a Class A felony, and dealing in marijuana within

one thousand feet of school property,3 a Class C felony. The trial court sentenced Jethroe

to thirty-two years for each of the Class A felonies, twenty years of which were executed,

and nine years for the Class C felony, two years of which were executed. The sentences

were ordered to be served concurrently, for a total executed sentence of twenty years.

Jethroe appeals his convictions and sentence raising the following restated issues:

       I.        Whether the trial court erred in denying Jethroe’s motion for a
                 mistrial;

       II.       Whether there was sufficient evidence to sustain Jethroe’s conviction
                 for dealing in a controlled substance as a Class A felony; and

       III.      Whether this case should be remanded to correct the nine-year
                 sentence imposed for Jethroe’s dealing in marijuana conviction
                 because it exceeds the maximum penalty allowed for a Class C felony.

       We affirm in part, reverse in part, and remand with instructions.

                           FACTS AND PROCEDURAL HISTORY

       In early May 2011, a confidential informant (“the CI”) advised Indianapolis

Metropolitan Police Department Detective Brad Nuetzman (“Detective Nuetzman”) that a

certain individual known as “Big” or “Big Guy” was illegally selling various quantities of



       1
           See Ind. Code § 35-48-4-1.

       2
           See Ind. Code § 35-48-4-2.
       3
           See Ind. Code § 35-48-4-10.


                                               2
controlled substances at 972 Edgemont Avenue in Indianapolis, Indiana (“the Edgemont

address”). Detective Nuetzman set up two controlled buys and, on May 9 and May 10,

2011, the CI and an undercover detective bought illegal drugs from “Big Guy” at the

Edgemont address.

        After the second transaction, Detective Nuetzman displayed a photo array to the CI

and the undercover detective, who each identified Jethroe as the one who had illegally sold

them drugs during the controlled buys. Detective Nuetzman secured a search warrant,

which he executed at the Edgemont address on May 12, 2011. During that search, the

police arrested Jethroe and charged him with nine counts.4 Jethroe sought to suppress

evidence obtained during the search, but was unsuccessful.

        A two-day jury trial was held on February 20 and 21, 2013. During the trial, the

State introduced5 the results of laboratory tests, revealing that three of the tablets sold by

Jethroe to the CI were N-Benylpiperazine. State’s Ex. 9 at 21.

        The jury found Jethroe guilty of two counts of dealing in cocaine (Counts I and V),

each as a Class A felony; two counts of possession of cocaine (Counts II and VI), each as

a Class A felony; one count of dealing in a controlled substance (Count III) as a Class A

felony; one count of possession of a controlled substance (Count IV) as a Class C felony;

one count of dealing in marijuana (Count VII) as a Class C felony; and one count of


        4
           Jethroe was charged with nine counts; however, at the conclusion of the State’s case-in-chief, the
trial court removed from the jury’s consideration Count IX of the charging information, i.e., possession of
marijuana, a Class A misdemeanor. The State also filed a habitual offender enhancement at a later date;
however, prior to sentencing, the State agreed to dismiss the habitual sentence enhancement.
        5
          This information was introduced when the State published Exhibit 9 by reading it to the jury.
Both parties stipulated to the laboratory results contained in Exhibit 9. State’s Ex. 9 at 21.

                                                     3
possession of marijuana (Count VIII) as a Class A misdemeanor. Each count, with the

exception of Count VIII, was alleged to have been committed within one thousand feet of

school property. After the jury returned its guilty verdicts, defense counsel polled each

juror to ask, “[A]re those your verdicts,” to which each juror answered, “Yes.” Tr. at 263-

65. During that process, however, Juror Two indicated that he had a question. Id. at 263-

64. The trial court asked Juror Two to approach the bench, and a very short exchange took

place. Id. at 263-64. In the transcript, Juror Two’s question was noted as “unintelligible,”

after which the trial judge stated, “[I]f that’s your verdict, you have to tell me yes or no.

Okay.” Id. at 264. The trial court then asked Juror Two if those were his verdicts, and the

juror said, “Yes, sir.” Id. After the trial judge ordered the jury to again retire to the

deliberation room, defense counsel voiced his concern “about what happened with” Juror

Two. Id. at 266. The trial judge explained that “it was kind of hard to understand” his

question, so I asked Juror Two again if that was his verdict. Id.

       Jethroe asked the trial court to set aside the verdict, arguing that Juror Two

expressed doubt, and therefore, it was an “improper jury verdict.” Id. The State responded,

“Judge, you asked specifically if that was the verdict and [Juror Two] answered yes. . . . I

don’t think there is any grounds [sic] to set aside the jury verdict.” Id. at 267. The trial

court denied the motion to set aside. Later, outside the presence of the jury, the parties

listened to the recording of the conference between the trial judge and Juror Two, but found




                                             4
it “inaudible.”6 Jethroe then sought a mistrial based upon this conversation, but that motion

was denied by the trial court. Id. at 272-73.

        The trial court sentenced Jethroe on four counts, finding that Counts II, IV, VI, and

VIII (pertaining to dealing) merged with Counts I, III, V, and VII (pertaining to

possession). Jethroe was sentenced to thirty-two years for each of the Class A felonies

(Counts I, III, and V), with twenty years executed and twelve years suspended, and nine

years for the Class C felony (Count VII), with two years executed and seven years

suspended. The sentences were ordered to be served concurrently, for a total executed

sentence of twenty years. Additional facts will be added where needed.

                                  DISCUSSION AND DECISION

                                      I.      Motion for Mistrial

        Jethroe contends that the trial court erred when it denied his motion for a mistrial

after the trial judge spoke with Juror Two. Specifically, he contends that he was denied his

constitutional right to a trial by jury because the trial court’s “ex parte” 7 communication

with Juror Two impinged on Jethroe’s right to a unanimous jury verdict. Appellant’s App.

at 7.

        Whether to grant or deny a motion for mistrial is a decision left to the sound

discretion of the trial court. Alvies v. State, 795 N.E.2d 493, 506 (Ind. Ct. App. 2003)


        6
          From the use of the word inaudible, it is not clear whether the parties could not hear what was
said on the recording because of technical problems or because Juror Two did not speak clearly.
        7
          The term “ex parte” means “on or from one side only.” In re Anonymous, 729 N.E.2d 566, 568
n.2 (Ind. 2000) (citing Black’s Law Dictionary 517 (5th ed. 1979)). A communication is ex parte if made
by a party outside the record without giving other parties notice or an opportunity to contest. Id. at 567-68.


                                                      5
(citing Lehman v. State, 777 N.E.2d 69, 72 (Ind. Ct. App. 2002)), trans. denied. “We will

reverse the trial court’s ruling only upon an abuse of that discretion.” Id. “We afford the

trial court such deference on appeal because the trial court is in the best position to evaluate

the relevant circumstances of an event and its impact on the jury.” Id. “To prevail on

appeal from the denial of a motion for mistrial, the appellant must demonstrate the

statement or conduct in question was so prejudicial and inflammatory that he was placed

in a position of grave peril to which he should not have been subjected.” Id. “We determine

the gravity of the peril based upon the probable persuasive effect of the misconduct on the

jury’s decision rather than upon the degree of impropriety of the conduct.” Id.

       At trial, Jethroe moved for a mistrial on the basis that Juror two had “dissent[ed]

from the verdict.” Tr. at 272. The trial court disagreed with Jethroe’s characterization that

Juror Two dissented, and it denied his motion for mistrial. Id. at 272. Based on the

following, we find that the trial court did not abuse its discretion. Here, the jury deliberated

and returned a unanimous verdict of guilty on all eight counts. Id. at 262. Jethroe requested

that the jury be polled. In the presence of Jethroe, his attorney, and the prosecutor, the trial

judge asked each juror whether the verdict was his or her verdict. When asked, Juror Two

stated that he had a question. At the trial judge’s request, and without objection by either

party, Juror Two approached the bench. A short, but inaudible, exchange occurred in open

court between the trial judge and Juror Two, after which the trial judge stated, “[I]f that’s

your verdict, you have to tell me yes or no. Okay. All Right [Juror Two], are those your

verdicts? Out loud please.” Id. at 264. Juror Two answered “Yes sir.” Id. The remaining

jurors individually agreed that the verdict read in open court was their verdict.

                                               6
       The jury reached a unanimous verdict and when polled with the question, “are those

your verdicts,” each juror answered yes. We find that Jethroe has failed to demonstrate

that the contact between the trial judge and Juror Two was so prejudicial and inflammatory

that he was placed in a position of grave peril to which he should not have been subjected.

Therefore, the trial court did not abuse its discretion in denying Jethroe’s motion for a

mistrial.

                            II.    Sufficiency of the Evidence

       Jethroe next contends that there was insufficient evidence to convict him of dealing

in a controlled substance as a Class A felony because the State failed to prove that the

alleged substance, benzylpiperazine, was in fact a controlled substance. Jethroe merely

argues, “None of the State’s parade of witnesses, multiple lab reports, or stipulations of

evidence, offered any proof this substance was controlled, let alone under Schedule I.

Appellant’s Br. at 12.

       Our standard of review with regard to sufficiency claims is well settled. In
       reviewing a sufficiency of the evidence claim, we neither reweigh the
       evidence nor judge the credibility of the witnesses. We will consider only
       the evidence most favorable to the judgment and the reasonable inferences
       drawn therefrom and will affirm if the evidence and those inferences
       constitute substantial evidence of probative value to support the judgment.
       A conviction may be based upon circumstantial evidence alone. Reversal is
       appropriate only when reasonable persons would not be able to form
       inferences as to each material element of the offense.

Naas v. State, 993 N.E.2d 1151, 1152 (Ind. Ct. App. 2013).

       “It is a well-settled principle of criminal law that a conviction will be reversed as a

matter of law if the State fails to prove an essential element of the crime.” Porod v. State,

878 N.E.2d 415, 417 (Ind. Ct. App. 2007) (citing Barnett v. State, 579 N.E.2d 84, 86 (Ind.

                                              7
Ct. App. 1991), trans. denied). “By example, with respect to offenses involving controlled

substances, the State must prove, as an essential element, the proscribed drug falls within

the applicable statutory provision.” Id. “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.

       Count III of the information alleged that Jethroe “did knowingly deliver to an

undercover police officer a controlled substance, that is: benzylpiperazine,[8] classified in

Schedule I of the Indiana Uniform Controlled Substances Act, and said delivery took place

within one thousand (1000) feet of a school.” Appellant’s App. at 43. The State’s evidence

showed that Jethroe sold Officer McCoy pills on May 9, 2011. Tr. at 62-63. Laboratory

testing revealed, and Jethroe stipulated to the fact, that three of the pills he sold to Officer

McCoy contained N-benzylpiperazine or BZP. State’s Ex. 9. The Indiana Code defines

N-benzylpiperazine or BZP as a Schedule I controlled substance. Ind. Code § 35-48-2-

4(a), (f). Final Instruction Number 6 informed the jury that benzylpiperazine is a controlled

substance. Appellant’s App. at 132. We conclude that the evidence was sufficient to

establish that Jethroe committed dealing in benzylpiperazine, a Schedule I controlled

substance. Because Jethroe does not contest the proof of the element that he was dealing

within one thousand feet of school property, we find substantial evidence of probative




       8
            Among other things, this drug is also called: Benzylpiperazine; N-benzylpiperazine; and 1-
benzylpiperazine. See http://www.chemicalbook.com/ChemicalProductProperty_EN_CB8365859.htm
(last visited Dec. 10, 2013).


                                                  8
value to support Jethroe’s conviction of Class A felony dealing in a controlled substance

within one thousand feet of school property.

                                    III.    Sentencing

       Jethroe was convicted of Class C felony dealing in marijuana under Indiana Code

section 35-48-4-10 and was sentenced to nine years. The maximum sentence for a Class

C felony is 8 years. Ind. Code § 35-50-2-6. Jethroe contends, and the State agrees, that a

nine-year sentence for a Class C felony conviction is not authorized by statute. Therefore,

as to Jethroe’s conviction for dealing in marijuana, we remand with instructions to the trial

court to revise the sentence on that offense downward to a term of imprisonment within

the range authorized by the Class C felony sentencing statute. See id. (sentencing range

for Class C felony is between two and eight years).

       Affirmed in part, reversed in part, and remanded with instructions.

FRIEDLANDER, J., and BAILEY, J., concur.




                                               9
