MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be                                          Jul 05 2019, 5:36 am
regarded as precedent or cited before any
                                                                                   CLERK
court except for the purpose of establishing                                   Indiana Supreme Court
                                                                                  Court of Appeals
the defense of res judicata, collateral                                             and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Marielena Duerring                                        Curtis T. Hill, Jr.
South Bend, Indiana                                       Attorney General of Indiana
                                                          Tiffany A. McCoy
                                                          Angela Sanchez
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA
Mark A. Eason, Jr.,                                       July 5, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2323
        v.                                                Appeal from the Elkhart Circuit
                                                          Court
State of Indiana,                                         The Honorable Michael A.
Appellee-Plaintiff.                                       Christofeno, Judge
                                                          Trial Court Cause No.
                                                          20C01-1707-F2-21



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2323 | July 5, 2019                           Page 1 of 6
                                     Case Summary and Issue

[1]   Mark A. Eason, Jr. (“Eason”) appeals his convictions in the Elkhart Circuit

      Court of Level 2 felony dealing in a controlled substance and Level 2 felony

      dealing in a narcotic drug. Eason argues there is insufficient evidence to support

      his convictions. We affirm.


                                  Facts and Procedural History
[2]   In April 2017, a confidential cooperating source informed the Elkhart County

      Intelligence and Covert Enforcement Unit (“ICE”) that Eason was dealing

      heroin in Elkhart County. Tr. Vol. II, p. 82. The source helped ICE arrange a

      controlled buy from Eason on May 4, 2017. Id. at 86. The buy was audio and

      video recorded. Id. at 169. Eason gave an undercover officer, UC 150, a bag

      with brown powder in exchange for $1,900. Id. at 87, 175–76. The substance

      field tested positive for heroin. Id. at 105.


[3]   UC 150 arranged a second controlled buy with Eason on May 9, 2017 to

      purchase one ounce of heroin. Id. at 181–83. This buy was also audio and video

      recorded. Id. at 186. Eason informed UC 150 that the price for one ounce of

      heroin was $3,625 and accepted $3,650 from UC 150 because Eason believed

      the bag might be over an ounce. Id.


[4]   Nicole Kay (“Kay”), a forensic scientist with the Indiana State Police,

      conducted testing to identify the substances purchased on May 4 and 9, 2017.

      Id. at 202. She conducted three tests on each substance: ultraviolet

      spectrometry, gas chromatography-mass spectrometry (“GCMS”), and thin

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2323 | July 5, 2019   Page 2 of 6
      layer chromatography. Id. at 200–01. These tests are generally accepted and

      relied on in forensic science and are used throughout Indiana to determine the

      presence of drugs. Id. at 201–02.


[5]   The substance from May 4, 2017 weighed 10.04 grams. Id. at 205. The first test,

      ultraviolet spectrometry, was inconclusive. Id. at 206. Kay testified that

      inconclusive ultraviolet spectrometry results commonly occur when a substance

      is a mixture and clarified that an inconclusive result does not mean a substance

      does not contain illegal substances. Id. at 206–07. Kay then ran GCMS. The

      first run was weak, indicating but not confirming the presence of heroin. Id. at

      233. A second run was strong enough to confirm the presence of heroin. Id. at

      234. Finally, thin layer chromatography was positive for heroin. Id. at 212.

      Kay testified the substance from the May 4, 2017 controlled buy contained

      heroin. Id.


[6]   Kay followed the same process for the substance obtained during the May 9,

      2017 controlled buy. The substance weighed 29.28 grams. Id. at 216. The

      ultraviolet spectrometry test was again inconclusive, and the first run of GCMS

      was weak. Id. at 216, 233. The second run of GCMS was also faulty. Id. at 234.

      Kay concentrated the substance and the third analysis positively confirmed the

      presence of fentanyl, a Schedule II controlled substance. Id. at 234–35. Thin

      layer chromatography was also positive for fentanyl. Id. at 217. Kay testified the

      substance from May 9, 2017 contained fentanyl. Id. at 218.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2323 | July 5, 2019   Page 3 of 6
[7]   The State charged Eason with Level 2 felony dealing in a controlled substance

      and Level 2 felony dealing in a narcotic drug.1 Appellant’s Conf. App. p. 53.

      The State also alleged Eason is an habitual offender. Id. at 54. At the April 16,

      2018 bench trial, the trial court found Eason guilty of both counts, and Eason

      admitted to being an habitual offender. Tr. Vol. III, pp. 25, 28. The court

      sentenced Eason to an aggregate 45-year sentence, with 5 years suspended to

      probation.2 Eason now appeals, arguing the State failed to present sufficient

      evidence to support his convictions.


                                            Standard of Review

[8]   In examining the sufficiency of the evidence, the court will consider only the

      evidence most favorable to the judgment and the reasonable inferences that can

      be drawn therefrom. Morgan v. State, 22 N.E.3d 570, 573 (Ind. 2014). We will

      not reweigh evidence or assess witness credibility. Id. We will affirm the

      conviction unless no reasonable fact-finder could have found the elements of

      the crime proved beyond a reasonable doubt. Jackson v. State, 50 N.E.3d 767,

      770 (Ind. 2016).




      1
       Initially, the State also charged Eason with Level 3 felony dealing in a narcotic drug and Level 4 felony
      dealing in a narcotic drug, but those charges were dropped prior to trial.
      2
        The trial court also revoked Eason’s probation in Cause No. 20C01-1606-F6-687 and Cause 20C01-1101-
      FB-1 and re-imposed his previously suspended sentences, based on his conviction in this case. The trial court
      ordered Eason’s sentences in those cases to be served consecutive with each other and with his sentences in
      this case.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2323 | July 5, 2019                       Page 4 of 6
                                                  Discussion

[9]    To convict Eason of Level 2 dealing in a controlled substance, the State had to

       prove that Eason knowingly or intentionally delivered a controlled substance,

       pure or adulterated, classified in Schedule I, II, or III. See Ind. Code § 35-48-4-

       2(a)(1)(C). The offense is a Level 2 felony if the controlled substance is at least

       twenty-eight grams. See I.C. § 35-48-4-2(f)(1). To convict for Level 2 dealing in

       a narcotic drug, the State had to show that Eason knowingly or intentionally

       delivered a narcotic drug, pure or adulterated, classified in Schedule I or II. See

       I.C. § 35-48-4-1(a)(1)(C). The offense is a Level 2 felony if the amount of the

       drug involved is at least ten grams. See I.C. § 35-48-4-1(e)(1).


[10]   Eason’s sole issue on appeal is the sufficiency of the evidence that the

       substances he sold during the controlled buys contained heroin and fentanyl.

       Eason argues the evidence is insufficient because Kay stated that two runs of

       GCMS were “weak.” Appellant’s Br. at 9. Eason relies on Halferty v. State, 930

       N.E.2d 1149 (Ind. Ct. App. 2010), trans. denied, wherein a trooper’s testimony

       about the conversion ratio of ephedrine/pseudoephedrine to methamphetamine

       was insufficient to sustain a conviction for manufacturing three or more grams

       of methamphetamine based on the amount of ephedrine/pseudoephedrine

       recovered at the scene. The trooper testified that “in general” the conversion

       ratio between ephedrine/pseudoephedrine and methamphetamine is “usually”

       about 70-80%, and one gram of ephedrine/pseudoephedrine would produce

       “about” 0.7-0.8 gram[] of methamphetamine. The trooper’s use of imprecise

       terms did not constitute proof beyond a reasonable doubt that 4.61 grams of

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2323 | July 5, 2019   Page 5 of 6
       ephedrine/pseudoephedrine would produce three or more grams of

       methamphetamine. Eason argues that Kay’s “weak” runs of GCMS are

       “likewise nebulous” and thus insufficient to prove beyond a reasonable doubt

       that the substances contain heroin and fentanyl.

[11]   Halferty is inapplicable to this case. Here, “weak” is a description of the results

       of a single scientific test rather than a general description of Kay’s findings.

       Both substances had one weak GCMS run; Kay then concentrated and retested

       the substances, receiving positive results. Thin layer chromatography confirmed

       the positive results. The fact finder was justified in crediting Kay’s testimony

       about the nature of the substances. Eason’s argument is nothing more than a

       request for us to reweigh the evidence and assess the credibility of the witness

       on appeal, which we will not do. We therefore conclude that the State

       presented sufficient evidence to support Eason’s convictions.

[12]   Affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2323 | July 5, 2019   Page 6 of 6
