      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this
                                                                         FILED
      Memorandum Decision shall not be regarded as                  Aug 07 2017, 8:40 am
      precedent or cited before any court except for the                 CLERK
      purpose of establishing the defense of res judicata,           Indiana Supreme Court
                                                                        Court of Appeals
      collateral estoppel, or the law of the case.                        and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Brian A. Karle                                           Curtis T. Hill, Jr.
      Ball Eggleston, P.C.                                     Attorney General of Indiana
      Lafayette, Indiana
                                                               Monika P. Talbot
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
             COURT OF APPEALS OF INDIANA

      Mitchell R. Fontaine,                                    August 7, 2017

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               79A05-1612-CR-2851
                 v.                                            Appeal from the Tippecanoe
                                                               Superior Court.
                                                               The Honorable Laura W. Zeman,
      State of Indiana,                                        Judge.
      Appellee-Plaintiff.                                      Trial Court Cause No.
                                                               79D04-1607-F6-625




      Shepard, Senior Judge

[1]   Appellant Mitchell R. Fontaine was found guilty of possession of paraphernalia
                                                                                             1
      with intent to introduce a controlled substance into his body, among other



      1
          Ind. Code § 35-48-4-8.3(b)(1) (2015).

      Court of Appeals of Indiana | Memorandum Decision 79A05-1612-CR-2851 | August 7, 2017      Page 1 of 7
      charges. Concluding the evidence was sufficient to support Fontaine’s

      conviction of possession of paraphernalia, we affirm it. On the other hand, his

      sentence is longer than the law permits. We therefore reverse his sentence and

      remand so that the trial court can fashion a new sentence.


                                   Facts and Procedural History
[2]   Fontaine and fourteen-year-old A.H. were found by sheriff’s deputies asleep in

      a vehicle at the end of a dead-end road. In A.H.’s purse were marijuana and a

      metal pipe, both of which A.H. admitted belonged to her. Her purse also

      contained pills and a bag containing drug paraphernalia, all of which Fontaine

      had asked her to hold for him.


[3]   Based upon this incident, Fontaine was charged with maintaining a common
                                             2
      nuisance, a Level 6 felony; possession of a controlled substance, a Level 6
                 3
      felony; possession of paraphernalia, a Class A misdemeanor; and contributing
                                                                             4
      to the delinquency of a minor, a Class A misdemeanor. A jury found Fontaine

      guilty as charged, and the court sentenced him to an aggregate sentence of six

      years.




      2
          Ind. Code § 35-45-1-5(c) (2016).
      3
          Ind. Code § 35-48-4-7(a) (2014).
      4
          Ind. Code § 35-46-1-8(a) (2014).

      Court of Appeals of Indiana | Memorandum Decision 79A05-1612-CR-2851 | August 7, 2017   Page 2 of 7
                                   Discussion and Decision
                                 I. Sufficiency of the Evidence
[4]   Fontaine challenges the sufficiency of the evidence about his conviction for

      possession of paraphernalia. In reviewing such challenges, we neither reweigh

      the evidence nor judge the credibility of the witnesses. Sandleben v. State, 29

      N.E.3d 126 (Ind. Ct. App. 2015), trans. denied. Instead, we consider only the

      evidence most favorable to the verdict and any reasonable inferences drawn

      therefrom. Id. If there is substantial evidence of probative value from which a

      reasonable fact-finder could have found the defendant guilty beyond a

      reasonable doubt, the verdict will not be disturbed. Labarr v. State, 36 N.E.3d

      501 (Ind. Ct. App. 2015).


[5]   To convict Fontaine of possession of paraphernalia, the State must have proved

      beyond a reasonable doubt that (1) Fontaine knowingly or intentionally (2)

      possessed an instrument, a device, or another object (3) that he intended to use

      for introducing a controlled substance into his body. See Ind. Code § 35-48-4-

      8.3(b)(1). Fontaine challenges the evidence about his intent to introduce a

      controlled substance into his body.


[6]   Fontaine cites Taylor v. State, 256 Ind. 170, 267 N.E.2d 383 (1971), Bradley v.

      State, 153 Ind. App. 421, 287 N.E.2d 759 (1972), and Sluder v. State, 997 N.E.2d

      1178 (Ind. Ct. App. 2013). In Taylor, a search of the defendant’s purse revealed

      a hypodermic type needle, an eye dropper covered with an unknown sticky

      substance, a bottle cap that had been burned on the bottom, and an empty

      Court of Appeals of Indiana | Memorandum Decision 79A05-1612-CR-2851 | August 7, 2017   Page 3 of 7
      Excedrin bottle. Noting there was no evidence of flight or other behavior

      indicating consciousness of guilt, previous convictions related to narcotic drug

      use, or current narcotics use by the defendant, our Supreme Court held the

      evidence was insufficient to show intent to administer narcotic drugs.


[7]   The defendant in Bradley argued the State’s evidence showed only that he

      possessed instruments adapted for the injection of narcotics into the body

      without proof of his intent to do so. Bradley initially fled from police and, in

      doing so, threw an object to the ground. In the discarded object, police found

      an eye dropper with a needle attached. A search of Bradley produced a bottle

      cap with burns on the bottom. This Court reversed, saying that Bradley’s flight,

      possession of the adapted instruments, and attempted concealment were no

      more than consciousness of guilt or a suspicious circumstance.


[8]   Fontaine also relies on Sluder, a more recent decision in which we reversed for

      lack of evidence of intent to use the syringe found in his back pocket to

      introduce a controlled substance into his body. The panel stated that although

      intent to introduce a controlled substance may be inferred from circumstantial

      evidence – – like track marks on the defendant’s arms, past drug use, previous

      drug convictions, or the presence of drugs – – the State had presented no such

      evidence.


[9]   Here, A.H. testified that Fontaine gave her his pills and told her to keep them in

      her purse. He also gave her a bag that contained lighters, a spoon, hypodermic

      needles, razor blades, and a belt. One of the officers testified that, based on his


      Court of Appeals of Indiana | Memorandum Decision 79A05-1612-CR-2851 | August 7, 2017   Page 4 of 7
       training and experience, a spoon and lighters are used to cook drugs, the belt is

       used as a tourniquet on the arm to restrict the blood flow and make it easier to

       see the veins, and needles are used for injecting drugs into the veins. The officer

       also testified that Fontaine identified the pills as being Klonopin, a brand name

       for the generic drug clonazepam. In addition, the parties entered an Agreed

       Stipulation at trial showing that the pills tested positive as clonazepam, a

       controlled substance. Another officer testified at trial that when A.H. was being

       questioned about the items in the bag Fontaine had given her, Fontaine

       commented, “I thought you guys couldn’t search juveniles.” Tr. p. 92.


[10]   In Perkins v. State, 57 N.E.3d 861 (Ind. Ct. App. 2016), the defendant was found

       to have syringe needles and a bottle cap containing heroin residue hidden in a

       cigarette pack. He fled from officers and, when apprehended, stated, “[I]t’s not

       mine, it’s not mine.” Id. at 863. A panel of this Court determined that the

       evidence of intent, consisting of possession of narcotics and instruments with

       which to introduce a controlled substance into his body, was sufficient to

       sustain Perkins’ conviction. The Court also held that his flight and statement to

       police were evidence of consciousness of guilt.


[11]   The assemblage of facts in this case pointing toward intent to inject are, if

       anything, more comprehensive than those in Perkins, and much more

       compelling than the evidence in Taylor, Bradley, and Sluder. Fontaine had in his

       possession instruments used to introduce drugs into the body as well as a

       controlled substance. Whereas Perkins had merely residue, a trace amount of

       narcotics, Fontaine had the actual controlled substance contained in the pills.

       Court of Appeals of Indiana | Memorandum Decision 79A05-1612-CR-2851 | August 7, 2017   Page 5 of 7
       He also had needles, lighters, a spoon, and a belt — everything needed to cook

       the drugs and introduce them into the body. In addition, the State presented

       clear evidence of Fontaine’s consciousness of guilt in his attempt to conceal

       both the paraphernalia and the drugs with A.H. because he believed the police

       could not search juveniles.


                                                II. Sentence
[12]   Fontaine also argues that his aggregate six-year sentence violates Indiana Code

       section 35-50-1-2 (2016), which provides, in pertinent part:


               (b) As used in this section, “episode of criminal conduct” means
               offenses or a connected series of offenses that are closely related
               in time, place, and circumstance.
               ...
               (d) Except [in circumstances not relevant here], the total of the
               consecutive terms of imprisonment to which the defendant is
               sentenced for felony convictions arising out of an episode of
               criminal conduct may not exceed the following:
                     (1) If the most serious crime for which the defendant is
               sentenced is a Level 6 felony, the total of the consecutive terms of
               imprisonment may not exceed four (4) years.
[13]   Fontaine was sentenced to two years on each of his two Level 6 felony

       convictions and to one year on each of his two Class A misdemeanor

       convictions, all of which the court ordered to be served consecutively for an

       aggregate sentence of six years. As this statute applies to consecutive sentences

       that involve misdemeanor convictions as well as sentences that include

       suspended time in the calculation, Fontaine’s sentence violates the limits in

       Indiana Code section 35-50-1-2(d). See Purdy v. State, 727 N.E.2d 1091 (Ind. Ct.
       Court of Appeals of Indiana | Memorandum Decision 79A05-1612-CR-2851 | August 7, 2017   Page 6 of 7
       App. 2000) (determining that consecutive sentencing limitation applies to

       misdemeanors), trans. denied; Mask v. State, 829 N.E.2d 932 (Ind. 2005) (holding

       that period of suspended sentence must be included when calculating maximum

       aggregate sentence under section 35-50-1-2).


                                                Conclusion
[14]   For the reasons stated, we conclude the State presented evidence sufficient to

       support Fontaine’s conviction of possession of paraphernalia. We further

       conclude that Fontaine’s sentence violates Indiana Code section 35-50-1-

       2(d)(1).


[15]   Affirmed in part, and reversed and remanded in part with instructions to

       resentence Fontaine within the statutory limits.


       Baker, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A05-1612-CR-2851 | August 7, 2017   Page 7 of 7
