                                                                         FILED
                                                                     Aug 15 2019, 9:01 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                      Attorney General of Indiana
                                                           Samuel J. Dayton
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jimmy Tyree Neal,                                          August 15, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           19A-CR-174
        v.                                                 Appeal from the Marshall Superior
                                                           Court
State of Indiana,                                          The Honorable Robert O. Bowen,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           50D01-1807-F2-13



Brown, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-174 | August 15, 2019                           Page 1 of 12
[1]   Jimmy Neal appeals and claims that the evidence is insufficient to sustain his

      convictions for dealing in or possessing a look-alike substance and dealing in

      marijuana as level 5 felonies, and that the trial court abused its discretion in

      ordering him to pay certain public defender fees and medical expenses. We

      affirm in part, reverse in part, and remand.

                                       Facts and Procedural History

[2]   At approximately 9:30 p.m. on June 13, 2018, Bremen Police Sergeant Trent

      Stouder was in an unmarked police vehicle and observed a GMC Jimmy which

      had an interim plate with a lightly-tinted cover over it. Sergeant Stouder could

      not read the plate, moved his police vehicle into a position so that he could see

      the plate number, and ran a check. The results identified the owner as Neal and

      indicated he did not have a valid license, and Sergeant Stouder activated his

      vehicle’s overhead lights and initiated a traffic stop. Upon approach, Sergeant

      Stouder noticed an odor of marijuana and that Neal had glassy eyes and was

      slow of speech. At some point, Neal admitted to Sergeant Stouder that he had

      smoked marijuana before entering his vehicle. Other law enforcement arrived

      at the scene, and Neal and his female passenger exited the vehicle. Neal

      admitted smoking marijuana and taking ecstasy daily. Officers discovered two

      plastic bags in the center console of the vehicle which contained multiple

      individually-packaged pills. The pills were pink, green, or orange in color, were

      triangular in shape, and were packaged individually into small ziplock baggies.

      Many of the baggies had rows of green leaf emblems on them. Officer Stouder

      believed the pills were ecstasy. Officers further discovered marijuana, multiple


      Court of Appeals of Indiana | Opinion 19A-CR-174 | August 15, 2019         Page 2 of 12
      cell phones, numerous plastic bags, a scale, and a portable safe. A laboratory

      report dated November 27, 2018, states that testing revealed that the green plant

      material was marijuana and that the total weight was 73.02 grams. The report

      further states that there were fifty-eight pink, three green, and two orange

      triangular shaped and scored tablets and that testing revealed that the pills

      contained caffeine.


[3]   The State charged Neal as amended with: Count I, dealing or possessing a look-

      alike substance as a level 5 felony; Count II, dealing in marijuana as a level 5

      felony; Count III, operating a vehicle with a schedule I or II controlled

      substance or its metabolite in the body as a class C misdemeanor; Count IV,

      improper display of license plate as a class C infraction; and Count V, no

      operator’s license in possession as a class C infraction. It also filed a notice of

      intent to seek an enhanced penalty on Count II to raise the offense to a level 5

      felony based on prior convictions in Wisconsin. The court held a bench trial

      and found Neal guilty on Counts I, II, and III and that judgment would be

      entered against him on Counts IV and V. With respect to Count I, the court

      stated “there was a quantity of those pills that were found,” they were

      “individually wrapped,” “they are a look-alike drug,” and “[m]aybe there

      weren’t an[y] comparisons, but you don’t have to take [] a leap of logic to

      assume that those are and were intended to be at one point passed off as drugs,

      so I’m going to find that you are guilty of Count I.” Transcript Volume II at 94.

      The court sentenced him to six years on Count I, six years on Count II, and

      sixty days on Count III, to run concurrently. The court’s written order states


      Court of Appeals of Indiana | Opinion 19A-CR-174 | August 15, 2019          Page 3 of 12
      Neal is required to pay a public defender fee of $250 and that he “shall

      reimburse Marshall County for all medical care expenses incurred by the

      County in providing medical care to [him] pursuant to IC 11-12-5-7.”

      Appellant’s Appendix Volume II at 7.

                                                    Discussion
                                                          I.

[4]   The first issue is whether the evidence is sufficient to sustain Neal’s convictions.

      When reviewing the sufficiency of the evidence to support a conviction,

      appellate courts must consider only the probative evidence and reasonable

      inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.

      2007). It is the factfinder’s role, not that of appellate courts, to assess witness

      credibility and weigh the evidence to determine whether it is sufficient to

      support a conviction. Id. Appellate courts, when confronted with conflicting

      evidence, must consider the evidence most favorable to the trial court’s ruling.

      Id. We will affirm unless no reasonable factfinder could find the elements of

      the crime proven beyond a reasonable doubt. Id. The evidence is sufficient if

      an inference may reasonably be drawn from it to support the verdict. Id. at 147.

      A.      Count I

[5]   Neal first challenges his conviction under Count I. He argues the State offered

      no proof the discovered pills met the requirements of a look-alike substance

      under Ind. Code § 35-48-4-4.5(a) and that any number of products are packaged

      for single use by individuals such as over-the-counter pain relievers, food, and

      vitamin packs. He argues the record contains no evidence of distribution of the

      Court of Appeals of Indiana | Opinion 19A-CR-174 | August 15, 2019          Page 4 of 12
      pills. He also argues that the court’s finding that the pills were intended to be

      passed off as drugs is troubling as the statute does not refer to drugs generically

      but to a controlled substance and that the court appears to have required a lesser

      standard of proof than required by statute. The State maintains that it

      demonstrated the caffeine pills qualified as a look-alike substance and that Neal

      intended to distribute them.

[6]   At the time of offense, Ind. Code § 35-48-4-4.6 provided in part:

              (a)      A person who knowingly or intentionally:

                       (1)      manufactures;
                       (2)      finances the manufacture of;
                       (3)      advertises;
                       (4)      distributes; or
                       (5)      possesses with intent to manufacture, finance the manufacture of,
                                advertise, or distribute;
                       a substance described in section 4.5 of this chapter commits a Level 5
                       felony.

              (b)      A person may be convicted of an offense under subsection (a)(5) only
                       if:

                       (1)      there is evidence in addition to the weight of the substance
                                that the person intended to manufacture, finance the
                                manufacture of, advertise, or distribute the substance; or
                       (2)      the amount of the substance involved is at least twenty-eight
                                (28) grams.
                                                *****
              (d)      In any prosecution brought under this section it is not a defense that
                       the person believed the substance actually was a controlled
                       substance. . . .




      Court of Appeals of Indiana | Opinion 19A-CR-174 | August 15, 2019                 Page 5 of 12
      (Emphases added) (subsequently amended by Pub. L. No. 80-2019, § 27 (eff.

      July 1, 2019)).


[7]   Ind. Code § 35-48-4-4.5 provided:

              (a)      A person who knowingly or intentionally delivers or finances the
                       delivery of any substance, other than a controlled substance or a drug
                       for which a prescription is required under federal or state law, that:

                       (1)      is expressly or impliedly represented to be a controlled
                                substance;
                       (2)      is distributed under circumstances that would lead a
                                reasonable person to believe that the substance is a controlled
                                substance; or
                       (3)      by overall dosage unit appearance, including shape, color,
                                size, markings, or lack of markings, taste, consistency, or any
                                other identifying physical characteristic of the substance,
                                would lead a reasonable person to believe the substance is a
                                controlled substance;

                       commits dealing in a substance represented to be a controlled
                       substance, a Level 6 felony.

              (b)      In determining whether representations have been made, subject to
                       subsection (a)(1), or whether circumstances of distribution exist,
                       subject to subsection (a)(2), the trier of fact may consider, in addition
                       to other relevant factors, the following:
                       (1)      Statements made by the owner or other person in control of
                                the substance, concerning the substance’s nature, use, or
                                effect.
                       (2)      Statements made by any person, to the buyer or recipient of
                                the substance, that the substance may be resold for profit.
                       (3)      Whether the substance is packaged in a manner uniquely used
                                for the illegal distribution of controlled substances.
                       (4)      Whether:


      Court of Appeals of Indiana | Opinion 19A-CR-174 | August 15, 2019               Page 6 of 12
                                (A)      the distribution included an exchange of, or demand
                                         for, money or other property as consideration; and
                                (B)      the amount of the consideration was substantially
                                         greater than the reasonable retail market value of the
                                         substance.

      (Emphases added) (repealed by Pub. L. No. 80-2019, § 26 (eff. July 1, 2019)).


[8]   A person engages in conduct “intentionally” if, when he engages in the

      conduct, it is his conscious objective to do so. Ind. Code § 35-41-2-2(a). A

      person engages in conduct “knowingly” if, when he engages in the conduct, he

      is aware of a high probability that he is doing so. Ind. Code § 35-41-2-2(b).

      Intent is a mental state the trier of fact often must infer from the surrounding

      circumstances. Vasquez v. State, 741 N.E.2d 1214, 1217 (Ind. 2001).


[9]   The evidence most favorable to Neal’s conviction is that numerous pills were

      recovered from the center console of his vehicle and that the pills were pink,

      green, or orange in color, triangular in shape, and packaged individually into

      small ziplock baggies, many of which had green leaf emblems on them.

      Sergeant Stouder testified that he was in his seventeenth year with the Bremen

      Police Department, had advanced roadside impaired driving enforcement

      training pertaining to the use of different types of narcotics and effects, and had

      interdiction training. Neal admitted to taking ecstasy daily. Officer Stouder

      believed the pills were ecstasy, and he prepared a property record sheet dated

      June 13, 2018, stating the evidence included sixty-three individually wrapped

      baggies of ecstasy in addition to the bags of marijuana, numerous small plastic

      baggies, and a scale.

      Court of Appeals of Indiana | Opinion 19A-CR-174 | August 15, 2019                Page 7 of 12
[10]   In light of the shape, color, size, and overall unit appearance of the pills, and

       the manner in which they were packaged as set forth in the record and shown in

       the exhibits, we conclude that a reasonable finder of fact could determine that

       the pills constituted a substance described in Ind. Code § 35-48-4-4.5. Also, we

       presume the trial court knows the law, and we cannot say that, in referring to

       “drugs,” the court did not consider the specific statutory elements of the

       charged crime. Further, given the number of pills and their packaging,

       numerous empty baggies, and scale, the finder of fact could reasonably infer

       that Neal possessed the substance with intent to distribute. Based upon the

       record, we conclude the State presented evidence of probative value from which

       the trier of fact could find beyond a reasonable doubt that Neal committed the

       crime charged under Count I. See M.Q.M. v. State, 840 N.E.2d 441, 445 (Ind.

       Ct. App. 2006) (noting the respondent represented corn grits to be cocaine and

       affirming the respondent’s adjudication under Ind. Code § 35-48-4-4.6); see also

       Davis v. State, 791 N.E.2d 266, 270 (Ind. Ct. App. 2003) (“Circumstantial

       evidence showing possession with intent to deliver may support a conviction.

       Possessing a large amount of a narcotic substance is circumstantial evidence of

       intent to deliver. The more narcotics a person possesses, the stronger the

       inference that he intended to deliver it and not consume it personally.”), reh’g

       denied, trans. denied.


       B.      Count II


[11]   Neal next challenges his conviction for dealing in marijuana as a level 5 felony

       under Count II. Ind. Code § 35-48-4-10 provides in part:

       Court of Appeals of Indiana | Opinion 19A-CR-174 | August 15, 2019         Page 8 of 12
               a)       A person who:

                                                      *****
                        (2)      possesses, with intent to:

                                 (A)      manufacture;
                                 (B)      finance the manufacture of;
                                 (C)      deliver; or
                                 (D)      finance the delivery of;

                                 marijuana, hash oil, hashish, or salvia, pure or adulterated;

                        commits dealing in marijuana, hash oil, hashish, or salvia, a Class A
                        misdemeanor, except as provided in subsections (b) through (d).
                                                      *****
               (d)      The offense is a Level 5 felony if:

                        (1)      the person has a prior conviction for a drug dealing offense
                                 and the amount of the drug involved is:

                                 (A)      at least thirty (30) grams but less than ten (10) pounds
                                          of marijuana; . . . .


[12]   Neal claims the State did not show that he had “a prior conviction for a drug

       dealing offense” under Ind. Code § 35-48-4-10(d)(1). He argues the State failed

       to present evidence that his convictions in Wisconsin are drug dealing offenses

       under Indiana law. He argues that, at most, the State proved he is guilty of

       dealing in marijuana as a level 6 felony. The State responds that Indiana

       considers possession with intent to deliver to be dealing and it is reasonable to

       conclude the legislature intended to treat out-of-state convictions similarly.


[13]   To the extent we must interpret section (d)(1) of the statute, the primary rule in

       statutory construction is to ascertain and give effect to the intent of the


       Court of Appeals of Indiana | Opinion 19A-CR-174 | August 15, 2019                 Page 9 of 12
legislature. Hendrix v. State, 759 N.E.2d 1045, 1047 (Ind. 2001). Neal does not

challenge the evidence that the green plant material found in the vehicle was

marijuana and had a total weight of 73.02 grams. The State presented evidence

of judgments of conviction from Wisconsin showing that Neal was convicted in

April 2010 of “Possess w/Intent-Heroin” as a “Felony F” and of “Possess

w/Intent-Cocaine” as a “Felony G.” State’s Exhibit 22. The judgment and

attached criminal complaint indicate the crimes were violations of Wisc. Stat. §

961.41(1m). The State submitted a copy of Wisc. Stat. § 961.41 to the trial

court for its consideration. The criminal complaint alleged that Neal “did

possess with intent to deliver a controlled substance” with respect to both

charges. Id. Ind. Code § 35-48-4-10 provides that a person commits dealing in

marijuana when the person “possesses, with intent to . . . deliver . . .

marijuana,” and Ind. Code § 35-48-4-1 provides that a person commits dealing

in cocaine or a narcotic drug when the person “possesses, with intent to . . .

manufacture [or] deliver . . . cocaine or a narcotic drug . . . .” Similarly, the

relevant statute in Wisconsin provided that it was unlawful for any person “to

possess, with intent to manufacture, distribute or deliver, a controlled substance

. . . .” Based upon the record, we conclude the State presented evidence of

probative value from which the trial court could find that Neal’s Wisconsin

convictions constituted prior convictions for drug dealing offenses under Ind.

Code § 35-48-4-10(d)(1).

                                                    II.




Court of Appeals of Indiana | Opinion 19A-CR-174 | August 15, 2019         Page 10 of 12
[14]   The next issue is whether the trial court abused its discretion in ordering Neal to

       pay public defender fees and medical expenses. As to medical expenses, Neal

       argues the court did not give him notice before imposing the expenses, the court

       is required to consider an inmate’s ability to pay, he reported no cash or other

       assets at his initial hearing, and appellate counsel was appointed for him at

       sentencing. The record does not indicate a total amount he is required to pay,

       and Neal states has no idea what expenses are being sought. As to public

       defender fees, he argues the court abused its discretion by imposing a fee

       without a hearing, that he is indigent, and that the court imposed a $250 fee

       without indicating the statutory basis for doing so. The State concedes that

       there is uncertainty in the record regarding whether Neal is currently able to

       pay these fees and requests that this Court remand for further proceedings to

       determine his present ability to pay.


[15]   The trial court’s order states that Neal shall reimburse Marshall County for all

       medical care expenses incurred by the County under Ind. Code § 11-12-5-7, but

       does not specify a reimbursement amount. Ind. Code § 11-12-5-7(b) provides

       that “a court may order a county jail inmate to reimburse a county for all or a

       portion of medical care expenses incurred by the county in providing medical

       care to the inmate.” The statute expressly provides: “In determining the

       amount of reimbursement that an inmate may be required to pay under

       subsection (b), the court shall consider the inmate’s ability to pay.” Ind. Code §

       11-12-5-7(d). It also provides that, if a court “orders a county jail inmate to

       reimburse a county for medical care expenses under subsection (b), the amount


       Court of Appeals of Indiana | Opinion 19A-CR-174 | August 15, 2019       Page 11 of 12
       of the medical care expenses shall be reduced by the amount of any copayment

       the inmate was required to make,” Ind. Code § 11-12-5-7(e), and that, if a

       county incurs medical care expenses which are not reimbursed, it shall attempt

       to determine the amount that may be paid by a policy of insurance or Medicaid.

       See Ind. Code § 11-12-5-7(f). Further, the trial court’s order does not state a

       statutory basis for requiring Neal to pay a public defender fee. 1 The court’s

       order did not indicate that it had inquired into or determined Neal’s ability to

       pay.


[16]   In light of the parties’ arguments and the record, we reverse the trial court’s

       order that Neal pay a public defender fee of $250 and reimburse Marshall

       County for medical expenses paid on his behalf and remand for hearing and

       further proceedings.


[17]   For the foregoing reasons, we affirm Neal’s convictions and remand for further

       proceedings consistent with Part II above.


[18]   Affirmed in part, reversed in part, and remanded.


       May, J., and Mathias, J., concur.




       1
        Neal states: “Three statutory provisions – Ind. Code § 35-33-7-6, § 33-40-3-6, and § 33-37-2-3 – address the
       imposition of public defender fees.” Appellant’s Brief at 25.

       Court of Appeals of Indiana | Opinion 19A-CR-174 | August 15, 2019                               Page 12 of 12
