MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                  May 06 2019, 11:10 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
Mark Small                                               Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Samantha M. Sumcad
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brenda Conley,                                           May 6, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1402
        v.                                               Appeal from the Pulaski Superior
                                                         Court
State of Indiana,                                        The Honorable Crystal A. Kocher,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         66D01-1801-F6-19



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1402 | May 6, 2019                      Page 1 of 7
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Brenda Conley (Conley), appeals her conviction for

      possession of a synthetic drug or synthetic drug lookalike substance, Class A

      misdemeanor, Ind. Code § 35-48-4-11.5(c), and obstruction of justice, a Level 6

      felony, I.C. § 35-44.1-2-2(a)(3).


[2]   We affirm.


                                                   ISSUE
[3]   Conley presents one issue on appeal, which we restate as: Whether the State

      presented sufficient evidence beyond a reasonable doubt to support Conley’s

      convictions.


                      FACTS AND PROCEDURAL HISTORY
[4]   On August 6, 2017, Officer Cody Foust (Officer Foust) of the Pulaski County

      Sheriff’s Department was on patrol in his fully-marked police vehicle around

      the 200 block of East Maple Street in Medaryville, Indiana. As he passed a

      residence on East Maple Street, he saw a man and woman seated on the front

      porch. The woman, who was later identified as Conley, appeared to be “dozing

      off on the porch.” (Transcript Vol. II, p. 103). Because Officer Foust found

      that unusual, he parked his vehicle and conducted a “welfare check on

      [Conley].” (Tr. Vol. II, p. 107).


[5]   As Officer Foust walked toward the porch, he could smell the distinct “smell of

      [] spice or synthetic marijuana” based on his training and experience. (Tr. Vol.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1402 | May 6, 2019   Page 2 of 7
      II, p. 117). Officer Foust then “observed [Conley] holding what appeared to be

      a roach or a small hand-rolled cigarette that has already been smoked.” (Tr.

      Vol. II, p. 108). When Officer Foust awakened Conley and asked what she had

      in her hand, Conley quickly concealed it. At that point, Officer Foust ordered

      Conley to drop the concealed item onto the porch, but Conley tossed the item

      into a “heavily [] uncut grassy area.” (Tr. Vol. II, p. 108). Officer Foust

      observed that Conley’s eyes were dilated, and when he questioned Conley why

      she had thrown the cigarette into the bushes, Conley’s sole excuse was that she

      was “fucking poor.” (Tr. Vol. II, p. 13). Officer Foust’s body camera captured

      all of these events.


[6]   On August 16, 2017, the State filed an Information, charging Conley with Class

      A misdemeanor possession of a synthetic drug or synthetic drug lookalike

      substance. On January 28, 2018, the State added a second Count, obstruction

      of justice, a Level 6 felony. On April 24, 2018, a jury trial was conducted. At

      the close of the evidence, the jury found Conley guilty as charged. On May 14,

      2018, the trial court held a sentencing hearing. For the Class A misdemeanor

      possession of a synthetic drug or synthetic drug lookalike substance conviction,

      the trial court sentenced Conley to 365 days all suspended to probation. For the

      Level 6 felony obstruction of justice conviction, the trial court sentenced Conley

      to a concurrent term of 365 days, with 90 days executed in the Pulaski County

      Jail, and the remaining term to be served through Community Corrections.


[7]   Conley now appeals. Additional facts will be provided as necessary.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1402 | May 6, 2019   Page 3 of 7
                               DISCUSSION AND DECISION
[8]    Conley claims that the State presented insufficient evidence to support her

       convictions for one Count of possession of a synthetic drug or synthetic drug

       lookalike substance, a Class A misdemeanor, and one Count of obstruction of

       justice, a Level 6 felony. When reviewing a claim of insufficient evidence, it is

       well established that our court does not reweigh evidence or assess the

       credibility of witnesses. Walker v. State, 998 N.E.2d 724, 726 (Ind. 2013).

       Instead, we consider all the evidence, and any reasonable inferences that may

       be drawn therefrom, in a light most favorable to the verdict. Id. We will

       uphold the conviction “‘if there is substantial evidence of probative value

       supporting each element of the crime from which a reasonable trier of fact

       could have found the defendant guilty beyond a reasonable doubt.’” Id.

       (quoting Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004)).


[9]    Indiana Code section 35-48-4-11.5(c) provides, in pertinent part that “[a] person

       who knowingly or intentionally possesses a synthetic drug or synthetic drug

       lookalike substance commits possession of a synthetic drug or synthetic drug

       lookalike substance, a Class A misdemeanor.” According to Conley, the State

       did not produce the cigarette, there was no scientific testing of the cigarette in

       question, and Officer Foust’s testimony did not establish that the substance was

       synthetic drug or a synthetic drug lookalike substance.


[10]   Notwithstanding her contentions, it is well established that “[f]or offenses

       involving controlled substances, the State is not required to introduce the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1402 | May 6, 2019   Page 4 of 7
       subject contraband to obtain a conviction for dealing or possession.” Boggs v.

       State, 928 N.E.2d 855, 865 (Ind. Ct. App. 2010), trans. denied. The identity of a

       controlled substance may be established through witness testimony and

       circumstantial evidence. Helton v. State, 907 N.E.2d 1020, 1024 (Ind. 2009).

       Our supreme court has held that, although “chemical analysis is one way, and

       perhaps the best way, to establish the identity of a compound,” the testimony of

       “someone sufficiently experienced with the drug may establish its identity, as

       may other circumstantial evidence.” Vasquez v. State, 741 N.E.2d 1214, 1216

       (Ind. 2001).


[11]   Turning to the record, on August 6, 2017, Officer Foust was conducting a

       routine patrol in a marked police car when he noticed Conley seated on a front

       porch going in and out of consciousness. Since Officer Foust found that

       unusual, he decided to conduct a welfare check on Conley. As he approached

       the porch, he detected the distinct odor of burnt “spice or synthetic marijuana”

       based on his training and experience. (Tr. Vol. II, p. 117). Officer Foust then

       “observed [Conley] holding what appeared to be a roach or a small hand-rolled

       cigarette that [had] already been smoked.” (Tr. Vol. II, p. 108). These facts

       support Conley’s conviction for Class A misdemeanor possession of a synthetic

       drug or synthetic drug lookalike substance.


[12]   Additionally, Indiana Code section 35-44.1-2-2(a)(3) provides, in relevant part,

       that “[a] person who . . . alters, damages, or removes any record, document, or

       thing, with intent to prevent it from being produced or used as evidence in any

       official proceeding or investigation . . . commits obstruction of justice, a Level 6

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1402 | May 6, 2019   Page 5 of 7
       felony. Conley’s contention on appeal is that there “was no argument from the

       State that [she] altered or damaged” the evidence, so as to “prevent it from

       being produced or used” in any proceeding or investigation. (Appellant’s Br. p.

       13). We disagree.


[13]   The record shows that when Officer Foust ordered Conley to drop the cigarette

       on the porch floor, Conley at first attempted to conceal the cigarette with her

       hand, and when that failed, she threw it into the bushes. Conley’s actions of

       refusing to place the cigarette on the porch floor after being ordered to do so,

       and thereafter throwing the cigarette into the bush, were done to prevent Officer

       Foust from confiscating the illegal substance and thereby using it as evidence in

       any official proceeding or investigation. See Mullins v. State, 717 N.E.2d 902,

       904 (Ind. Ct. App. 1999) (holding that the defendant’s act of “swallow[ing] the

       crack cocaine which otherwise would have been used as evidence in a

       possession charge” was sufficient to support his conviction for obstruction of

       justice).


[14]   Based on the foregoing, we conclude that the State presented sufficient evidence

       beyond a reasonable doubt to support Conley’s conviction.


                                             CONCLUSION
[15]   Based on the above, we conclude that the State presented sufficient evidence

       beyond a reasonable doubt to support Conley’s conviction for Class A

       misdemeanor possession of a synthetic drug or synthetic drug lookalike, and

       Level 6 felony obstruction of justice.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1402 | May 6, 2019   Page 6 of 7
[16]   Affirmed.


[17]   Bailey, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1402 | May 6, 2019   Page 7 of 7
