MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                         Jan 23 2018, 9:39 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                     CLERK
                                                                          Indiana Supreme Court
court except for the purpose of establishing                                 Court of Appeals
                                                                               and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Elizabeth A. Houdek                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Matthew B. Mackenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

D.G.,                                                    January 23, 2018
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         49A05-1708-JV-1797
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Petitioner.                                     Marilyn A. Moores, Judge
                                                         The Honorable
                                                         Geoffrey A. Gaither, Magistrate
                                                         Trial Court Cause No.
                                                         49D09-1703-JD-417



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1708-JV-1797 | January 23, 2018           Page 1 of 9
[1]   Contending that the evidence was insufficient, D.G. appeals her adjudication as

      a delinquent child for dealing a lookalike substance to Lysergic Acid

      Diethylamide (LSD) (“acid”)1. We affirm.


                                     Facts and Procedural History
[2]   D.G. and B.G. attended the same high school in Indianapolis. Although they

      had first met in fourth grade, they had not seen each other until they attended

      the same high school and had a class together. They were not close friends and

      did not see each other outside of school. D.G. told B.G that she could obtain

      acid from one of her friends and would sell it to him for ten dollars. On

      February 27, 2017, D.G. approached B.G. in the school cafeteria, told him that

      she had the acid, and gave B.G., who had paid her at an earlier time, a white

      tablet. Approximately thirty minutes later, B.G. began to feel the effects of the

      drug, which he described as visual and auditory changes. He was sent to the

      principal’s office and then to the hospital.


[3]   On March 20, 2017, the State filed a petition alleging D.G. to be a delinquent

      child for having committed dealing in a lookalike substance, a Level 5 felony if

      committed by an adult. Following a hearing on June 15, 2017, the juvenile

      court entered a true finding on June 22, 2017 and on July 20, 2017, sentenced

      her to a term of probation. She now appeals.




      1
          See Ind. Code 35-48-4-4.6(a).


      Court of Appeals of Indiana | Memorandum Decision 49A05-1708-JV-1797 | January 23, 2018   Page 2 of 9
                                     Discussion and Decision
[4]   When the State seeks to have a juvenile adjudicated to be a delinquent for

      committing an act that would be a crime if committed by an adult, the State

      must prove every element of the crime beyond a reasonable doubt. M.T.V. v.

      State, 66 N.E.3d 960, 965 (Ind. Ct. App. 2016), trans. denied. Upon review of a

      juvenile adjudication, this court will consider only the evidence and reasonable

      inferences supporting the judgment. Id.


[5]   Indiana Code § 35-48-4-4.5(a) provides:


              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.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1708-JV-1797 | January 23, 2018   Page 3 of 9
[6]   To convict D.G. of dealing in a lookalike substance, a Level 5 felony, the State

      had to prove that she: 1) knowingly or intentionally; 2) distributed; 3) a

      lookalike substance described under section 4.5 of this chapter. See Ind. Code §

      35-48-4-4.6(a)(4) and (5).


[7]   The statute further provides that the trier of fact may consider several relevant

      factors in determining whether qualified representations have been made,

      including “statements made by the owner or other person in control of the

      substance, concerning the substance’s nature, use, or effect.” Ind. Code § 35-

      38-4-4.5(b)(1).


[8]   B.G. testified that D.G. told him that she could obtain acid from one of her

      friends and arranged a sale. Once D.G. had the purported acid, she gave it to

      B.G. in the school cafeteria. B.G. stated that he knew what acid looked like

      and that it could be a liquid or a tablet in his experience, and that D.G. handed

      him a small, square tablet. After taking the substance, B.G. reported that it

      tasted like “nothing, bitterish,” and that he had visions and hallucinations for

      approximately six hours. Tr. Vol. II at 13. Indiana appellate courts have

      affirmed convictions for conduct of this nature in several circumstances. See.

      e.g., Conner v. State, 626 N.E.2d 803, 806 (Ind. 1993) (affirming conviction for

      defendant who sold plant material to undercover police officer purporting that it

      was marijuana); M.Q.M. v. State, 840 N.E.2d 441, 445 (Ind. Ct. App. 2006)

      (affirming conviction for possession of substance represented to be controlled

      substance under I.C. § 35-38-4-4.6 when respondent possessed corn grits and

      represented them to be cocaine to other students). Our Supreme Court has

      Court of Appeals of Indiana | Memorandum Decision 49A05-1708-JV-1797 | January 23, 2018   Page 4 of 9
       recognized that LSD is a “colorless, tasteless, odorless substance.” See Slettvet v.

       State, 258 Ind. 312, 258 N.E.2d 806, 808 (1972) (citing 22 A.L.R. 3d 1326 n.1).

       Thus, the State presented sufficient evidence to secure D.G.’s conviction.


[9]    Furthermore, we will neither reweigh the evidence nor judge witness credibility.

       It is the function of the trier of fact to resolve conflicts in testimony and to

       determine the weight of the evidence and the credibility of the witnesses. Jones

       v. State, 701 N.E.2d 863, 867 (Ind. Ct. App. 1998). Notably, “‘[t]he

       uncorroborated testimony of a single witness may suffice to sustain the

       delinquency adjudication.’” T.G. v. State, 3 N.E.3d 19, 23 (Ind. Ct. App. 2014)

       (quoting D.W. v. State, 903 N.E.2d 966, 968 (Ind. Ct. App. 2009), trans. denied),

       trans. denied.


[10]   D.G. argues that B.G.’s denial of using drugs, other than the purported acid

       and occasional marijuana, was contradicted by his later statement that he

       consumed mushrooms on the day in question. As such, D.G. contends that

       B.G.’s testimony lacks credibility. The incredible dubiosity rule applies only

       when the testimony before the trier of fact is so inherently incredible or

       improbable that it “runs counter to human experience” and “no reasonable

       person could believe it.” Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001).

       Application of the rule is “limited to cases where a sole witness presents

       inherently contradictory testimony which is equivocal or the result of coercion

       and there is a complete lack of circumstantial evidence of the defendant’s guilt.”

       Majors v. State, 748 N.E.2d 365, 367 (Ind. 2001).



       Court of Appeals of Indiana | Memorandum Decision 49A05-1708-JV-1797 | January 23, 2018   Page 5 of 9
[11]   B.G. was the only witness called by the State, but it does not necessarily follow

       that his testimony meets the requirements of “incredible dubiosity.” While

       B.G. had difficulty remembering exact dates when answering questions in open

       court, at no point did he contradict that: 1) he agreed to buy acid from D.G.

       that she said she could get it from her friends; 2) he paid D.G. in advance of the

       delivery; and 3) D.G. gave him the purported acid in the school cafeteria.

       B.G.’s testimony was not conflicted as to the actual crime at issue, and his

       testimony does not rise to the level of inherent improbability that would permit

       this court to reweigh it.


[12]   Affirmed.


[13]   Bailey, J., concurs.


[14]   Pyle, J., dissents with separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1708-JV-1797 | January 23, 2018   Page 6 of 9
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       D.G.,
       Appellant-Respondent,
                                                                Court of Appeals Case No.
               v.                                               49A05-1708-JV-1797

       State of Indiana,
       Appellee-Petitioner.




       Pyle, Judge dissenting with opinion.


[15]   I respectfully dissent from my colleague’s opinion affirming the True finding of

       the juvenile court. I do not believe that the State presented sufficient evidence

       to support the True finding.


[16]   On March 21, 2017, the State filed a Delinquency Petition alleging that D.G.

       had committed the criminal act of dealing in a look-a-like substance under

       INDIANA CODE § 35-48-4-4.6(a). (App. Vol. 2 at 15). This statute provides that

       “a person who knowingly or intentionally distributes a substance described in

       Court of Appeals of Indiana | Memorandum Decision 49A05-1708-JV-1797 | January 23, 2018   Page 7 of 9
       section 4.5 of this chapter commits a Level 5 felony.” I.C. § 35-48-4-4.6(a)(4)

       (emphasis added). Section 4.5 provides as follows:


               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.

       (emphasis added).


[17]   In this case, the State called one witness, B.G. It did not present any evidence

       that the substance delivered to and consumed by B.G. was not a controlled

       substance. During closing arguments, D.G.’s counsel argued that the State did

       not present evidence identifying the substance delivered to B.G., but the

       juvenile court stated that it did not believe that the State was required to do so.

       I believe the juvenile court was mistaken. LSD is, in fact, a schedule I

       controlled substance. I.C. § 35-48-2-4(d)(21). For this, and other reasons, the

       State was required by statute to prove beyond a reasonable doubt that the item

       D.G. gave to B.G. was not, in fact, a controlled substance. See In re Winship,

       Court of Appeals of Indiana | Memorandum Decision 49A05-1708-JV-1797 | January 23, 2018   Page 8 of 9
       397 U.S. 358, 365, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Willis v. State, 983

       N.E.2d 670 (Ind. Ct. App. 2013) (the State must prove beyond a reasonable

       doubt every element of the charged offense).


[18]   We find an example of the State meeting this burden in M.Q.M. v. State, 840

       N.E.2d 441 (Ind. Ct. App. 2006), another juvenile case. In this case, M.Q.M.

       was at his junior high school where he told several students that he had cocaine

       in his locker. Those students informed the principal. The principal confronted

       M.Q.M. and searched his locker. In the locker, the principal found a clear

       plastic bag containing a white powdery substance and a package labeled “Jim

       Dandy ® Enriched Quick Grits.” Id. at 443. Unsure of what the substance

       was, the principal called the police. “The substance was later determined to be

       corn grits.” Id. While the main issue in that case focused on whether

       representations had been made that the corn grits were cocaine, the State clearly

       presented evidence that the substance possessed was not a controlled substance.


[19]   As a result, because the State did not prove beyond a reasonable doubt that the

       substance delivered by D.G. to B.G. was not a controlled substance, I would

       reverse the True finding of the juvenile court.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1708-JV-1797 | January 23, 2018   Page 9 of 9
