                                                                        Aug 04 2015, 9:20 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Richard Ranucci                                            Gregory F. Zoeller
      Indianapolis, Indiana                                      Attorney General of Indiana

                                                                 George P. Sherman
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Dylan R. Smart,                                           August 4, 2015

      Appellant-Defendant,                                      Court of Appeals Cause No.
                                                                29A02-1412-CR-887
              v.                                                Appeal from the Hamilton Superior
                                                                Court
                                                                Cause No. 29D05-1404-FD-3118
      State of Indiana,
      Appellee-Plaintiff.                                       The Honorable Wayne A. Sturtevant,
                                                                Judge




      Barnes, Judge.


                                              Case Summary
[1]   Dylan Smart appeals his convictions for Class D felony possession of

      methamphetamine and Class D felony unlawful possession of a syringe. We

      affirm in part and reverse in part.



      Court of Appeals of Indiana | Opinion 29A02-1412-CR-887 | August 4, 2015                 Page 1 of 10
                                                      Issues
[2]   Smart raises three issues, which we consolidate and restate as:


                       I.       whether the trial court properly admitted the
                                results of a field test into evidence; and

                       II.      whether the evidence is sufficient to sustain his
                                convictions.

                                                      Facts
[3]   On the evening of April 18, 2014, Smart, Janelle King, and Christina Perry

      drove around in a vehicle owned by Perry’s husband. Perry did not have a

      driver’s license, so King drove the vehicle. Smart was sitting in the front

      passenger seat. According to King, all three used narcotics in the vehicle that

      day. Everyone injected themselves with syringes filled with drugs provided by

      King. King threw her syringe away at a gas station.


[4]   In the early morning hours of April 19, 2014, Sergeant Mike Janes of the

      Fishers Police Department initiated a traffic stop of the vehicle, and a police

      canine alerted to the presence of drugs in the vehicle. During the traffic stop,

      Smart was “moving around excessively,” he was not “able to hold still,” and

      his eyes were “twitching . . . constantly.” Tr. p. 108. During a search of the

      vehicle, officers discovered a spoon on the front passenger floorboard, a capped

      syringe on the floorboard behind the driver’s seat, and a capped syringe in a

      backpack behind the driver’s seat. Both syringes contained a brown fluid. King

      told an officer that there was a syringe in the vehicle and that the syringe

      belonged to “him.” Id. at 92. Smart was the only male occupant of the vehicle.

      Court of Appeals of Indiana | Opinion 29A02-1412-CR-887 | August 4, 2015      Page 2 of 10
[5]   Smart denied that the backpack belonged to him, but he admitted to Sergeant

      Janes that he had used drugs by injecting them earlier in the vehicle. Smart had

      fresh “track marks” on his wrist. Id. at 126. Smart also admitted to Sergeant

      Janes that he had used “speed” by injecting it. Id. at 127. Speed is a street

      name for methamphetamine. Sergeant Janes later performed a field test on the

      fluid in one of the syringes, and it tested positive for either methamphetamine

      or MDMA, which is ecstasy.


[6]   The State charged Smart with Class D felony possession of methamphetamine,

      Class D felony unlawful possession of a syringe, and Class D felony possession

      of a controlled substance. The controlled substance charge was later dismissed.


[7]   At Smart’s bench trial, Audra Yovanovich, a chemist for the Indiana State

      Police laboratory, testified that the laboratory was unable to analyze the

      substance in the syringes because the fluid was contaminated with blood or

      bodily fluids. Bodily fluids can damage the laboratory’s instruments and

      degrade controlled substances, and the laboratory is not equipped to identify

      metabolites of controlled substances. When questioned regarding the field test

      performed by Sergeant Janes, Yovanovich testified that the field test is not

      confirmatory but gives a general idea of what kind of drug may be present in a

      sample. It is a “widely used test” but would “never be used alone to identify a

      controlled substance.” Id. at 99.


[8]   Smart later objected to Sergeant Janes’s testimony regarding the results of the

      field test on the fluid found in one of the syringes. Smart argued that there was


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       not a proper foundation to use the field test, that Sergeant Janes was not an

       expert, and that the field test was not a “final test for narcotics.” Id. at 121.

       The trial court overruled the objection and stated:

               The officer has testified how a test is conducted. The State Police
               witness testified that is a valid test, although not conclusive by itself
               and the Officer’s testified that the - - if it turns blue, that’s a positive
               result for methamphetamine or MDMA. Everything else goes to the
               weight of that testimony, will be assigned to me to make that
               determination, so the objection is overruled.
[9]    Id. Sergeant Janes then testified that the field test indicated a positive result for

       methamphetamine or MDMA.


[10]   At the trial, Smart testified that King had offered him “some speed, crystal” that

       was already loaded in a syringe. Id. at 143. Smart then testified that King had

       helped him inject it into his arm and that she kept the needle. Smart then

       admitted to using methamphetamine. Perry also testified and admitted to

       injecting methamphetamine provided by King.


[11]   The trial court found Smart guilty as charged and sentenced him to three years

       with one year suspended to probation. Smart now appeals.


                                                     Analysis
                                           I. Admission of Evidence

[12]   Smart first argues that the trial court abused its discretion by admitting evidence

       of the field test results. We review the admission of evidence for an abuse of

       discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of

       discretion occurs “where the decision is clearly against the logic and effect of

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       the facts and circumstances.” Smith v. State, 754 N.E.2d 502, 504 (Ind. 2001).

       The admission of evidence is harmless and is not grounds for reversal where the

       evidence is merely cumulative of other evidence properly admitted. Gaines v.

       State, 999 N.E.2d 999, 1005 (Ind. Ct. App. 2013).


[13]   According to Smart, the trial court erred by admitting evidence of the field test

       results because the State failed to present a sufficient foundation for the

       scientific reliability of the field test. However, we need not address that

       argument because there was substantial evidence other than the field test result

       that the syringes contained methamphetamine. Most importantly, King, Perry,

       and Smart all admitted that they had injected methamphetamine earlier in the

       evening. Smart testified that King provided syringes already loaded with

       methamphetamine and that she helped him inject the methamphetamine into

       his arm. The positive field test result is merely cumulative of other evidence

       presented that the syringes contained methamphetamine. Any error in the

       admission of the field test result was harmless.


                                       II. Sufficiency of the Evidence

[14]   Smart argues that the evidence is insufficient to sustain his convictions. When

       reviewing the sufficiency of the evidence needed to support a criminal

       conviction, we neither reweigh evidence nor judge witness credibility. Bailey v.

       State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence

       supporting the judgment and any reasonable inferences that can be drawn from

       such evidence.” Id. We will affirm if there is substantial evidence of probative


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       value such that a reasonable trier of fact could have concluded the defendant

       was guilty beyond a reasonable doubt. Id.


                                    A. Possession of Methamphetamine

[15]   Smart was found guilty of Class D felony possession of methamphetamine

       pursuant to Indiana Code Section 35-48-4.6-1(a), which at the time provided:

       “A person who, without a valid prescription or order of a practitioner acting in

       the course of the practitioner’s professional practice, knowingly or intentionally

       possesses methamphetamine (pure or adulterated) commits possession of

       methamphetamine, a Class D felony.”


[16]   Smart argues that the evidence is insufficient to sustain his conviction because

       the State failed to prove the identity of the substance in the syringes. In support

       of his argument, Smart relies on State v. Vorm, 570 N.E.2d 109 (Ind. Ct. App.

       1991). In Vorm, we addressed whether the presence of cocaine metabolites in

       urine was prima facie evidence of possession of cocaine. We held that,

       although “the presence of metabolites in urine may be viewed as circumstantial

       evidence of possession of cocaine,” that circumstantial evidence, alone, did not

       constitute prima facie evidence of possession of cocaine. Vorm, 570 N.E.2d at

       110. We rejected “both the State’s contention the mere presence is prima facie

       evidence of prior possession and its contention presence in a person’s bodily

       systems amounts to a knowledgeable possession of the substance.” Id.


[17]   We find Vorm distinguishable. Here, even if we do not consider the results of

       the field test, we conclude that the evidence is sufficient to show that Smart

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       possessed methamphetamine. Unlike in Vorm, Smart, King, and Perry all

       admitted to injecting methamphetamine on the evening in question. Smart had

       fresh track marks on his arm and was exhibiting symptoms of

       methamphetamine use. Our supreme court has recently held that “[t]he State is

       not required to introduce the subject contraband to obtain a conviction for

       dealing or possession.” Helton v. State, 907 N.E.2d 1020, 1024 (Ind. 2009).

       “The identity and quantity of a controlled substance, and the defendant’s

       possession of or dealing in narcotics, may all be established through witness

       testimony and circumstantial evidence.” Id. Given the circumstantial evidence

       and the witness testimony here, we conclude that the evidence is sufficient to

       sustain Smart’s conviction for Class D felony possession of methamphetamine.


                                   B. Unlawful Possession of a Syringe

[18]   Next, Smart argues that the evidence is insufficient to sustain his conviction for

       Class D felony unlawful possession of a syringe. The offense is governed by

       Indiana Code Section 16-42-19-18, which at the time of the offense provided:

       “A person may not possess or have under control with intent to violate this

       chapter [the Legend Drug Act] a hypodermic syringe or needle or an instrument

       adapted for the use of a legend drug by injection in a human being.”


[19]   Smart argues that, pursuant to Bookwalter v. State, 22 N.E.3d 735 (Ind. Ct. App.

       2014), trans. denied, the State was required to show that methamphetamine is a

       Legend Drug. In Bookwalter, which was handed down shortly after Smart’s

       trial, the defendant was convicted of unlawful possession of a syringe and

       admitted that he possessed the syringes to inject himself with heroin. However,
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       he argued that heroin was not a legend drug and that there was insufficient

       evidence to show that he possessed the syringes with intent to violate the terms

       of the Legend Drug Act. This court held that the statute was ambiguous as to

       whether the possession of a syringe without a valid prescription for a legend

       drug, insulin, or anabolic steroids, with intent to inject a non-legend drug, was

       sufficient to violate Indiana Code Section 16-42-19-18. Bookwalter, 22 N.E.3d at

       740-41. Consequently, under the rule of lenity, we construed the statute in

       favor of the defendant and concluded that intent to inject heroin was not

       covered by the Legend Drug Act’s definition of the offense possession of a

       syringe.


[20]   Following Bookwalter, the State was required to demonstrate that

       methamphetamine, which Smart admitted to injecting, was covered by the

       Legend Drug Act. Smart concedes that “methamphetamine hydrochloride” is

       a legend drug but argues that “methamphetamine” is not listed as a legend

       drug. According to Smart, the State failed to present any evidence that the

       methamphetamine that he admitted to injecting is the same substance as

       methamphetamine hydrochloride. The trial court took “judicial notice” that

       methamphetamine is a legend drug. Tr. p. 210. However, Indiana Evidence

       Rule 201(a) provides:

               The court may judicially notice:
               1.       a fact that:
                        (A)      is not subject to reasonable dispute because it is
                                 generally known within the trial court’s territorial
                                 jurisdiction, or

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                        (B)      can be accurately and readily determined from sources
                                 whose accuracy cannot reasonably be questioned.
               2.       the existence of:
                        (A)      published regulations of governmental agencies;
                        (B)      ordinances of municipalities; or
                        (C)      records of a court of this state.
[21]   We cannot say that whether the methamphetamine injected by Smart qualifies

       as methamphetamine hydrochloride is a fact “not subject to reasonable dispute”

       or a fact that “can be accurately and readily determined from sources whose

       accuracy cannot reasonably be questioned.”1 Evid. R. 201(a). On appeal,

       without citing any authority, the State merely argues that “it is apparent that

       ‘methamphetamine hydrochloride’ is simply the formal name for the drug.”

       Appellee’s Br. p. 15. We simply cannot make that connection based on the

       evidence presented. Consequently, we conclude that the State failed to present

       evidence that Smart possessed a syringe with the intent to violate the Legend

       Drug Act. The evidence is not sufficient to sustain this conviction.




       1
         We acknowledge our supreme court’s opinion in Reemer v. State, 835 N.E.2d 1005 (Ind. 2005). There, the
       State was required to show that the defendant possessed salts, isomers, or salts of isomers of ephedrine or
       pseudoephedrine in the context of a prosecution for possession of a precursor to methamphetamine. The
       State proved that the defendant had possessed pseudoephedrine hydrochloride. We reversed the defendant’s
       conviction on appeal because the State had failed to demonstrate that pseudoephedrine hydrochloride was a
       salt, isomer, or salt of isomer of pseudoephedrine. Our supreme court took notice of a medical dictionary
       definition that pseudoephedrine hydrochloride is “the naturally occurring isomer of ephedrine.” Reemer, 835
       N.E.2d at 1010. Consequently, our supreme court found that the evidence was sufficient to sustain the
       defendant’s conviction for possession of a precursor to methamphetamine. This case is distinguishable from
       Reemer. Here, there was no evidence presented that the methamphetamine that Smart injected is the same as
       methamphetamine hydrochloride, and medical dictionary definitions are not helpful in resolving this issue.

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                                                  Conclusion
[22]   Any error in the admission of the field test results was harmless. We conclude

       that the evidence is sufficient to sustain Smart’s conviction for Class D felony

       possession of methamphetamine, but the evidence is insufficient to sustain his

       conviction for Class D felony unlawful possession of a syringe. We affirm in

       part and reverse in part.


[23]   Affirmed in part and reversed in part.


[24]   Riley, J., and Bailey, J., concur.




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