                                                                 FILED
 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before
 any court except for the purpose of                          Jan 23 2013, 9:24 am
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.                         CLERK
                                                                    of the supreme court,
                                                                    court of appeals and
                                                                           tax court




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

KURT A. YOUNG                                        GREGORY F. ZOELLER
Nashville, Indiana                                   Attorney General of Indiana

                                                     CYNTHIA L. PLOUGHE
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

KEVIN GENE ROTINO,                                   )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )       No. 07A05-1205-CR-259
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                       APPEAL FROM THE BROWN CIRCUIT COURT
                           The Honorable Judith A. Stewart, Judge
                              Cause No. 07C01-0810-FC-436


                                          January 23, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                      Case Summary

       Kevin Gene Rotino appeals his Class D felony dealing in marijuana conviction.

He contends that there is insufficient evidence to sustain his conviction because the State

failed to show both that manufacturing was taking place and that Rotino was either a

principal or accomplice in the manufacturing. Finding that there is sufficient evidence to

sustain his conviction, we affirm.

                              Facts and Procedural History

       On September 26, 2008, Indiana Conservation Officer Captain Jason Lee received

information about a marijuana-growing operation in a wooded area at the intersection of

Bear Wallow Hill and Gatesville Road in Brown County. Captain Lee and Officer Brent

Bohbrink went to the area in the woods where the operation was allegedly taking place,

and Captain Lee could smell the “pungent odor of marijuana” from 200 to 225 feet away.

Tr. p. 50. Using a “spotting scope,” Captain Lee observed a white box trailer attached to

a black pickup truck. The tailgate of the trailer had been lowered to form a table surface.

Captain Lee saw three men sitting around the tailgate “cutting up and processing”

marijuana. Id. at 52. After watching the three men for ten to fifteen minutes, Captain

Lee and Officer Bohbrink went back to Nashville in order to obtain a search warrant.

       Later that afternoon, Captain Lee and Officer Bohbrink returned to the wooded

area with additional officers and saw the scene to be the same as it was earlier. Id. at 55.

Captain Lee described the scene at trial as a “fairly elaborate set up” with “all parts of the

process of taking a full [marijuana] plant and cutting it down into the pieces you actually

are trying to keep and utilize.” Id. at 63-64. There were drying racks where the cut

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vegetation would be placed for drying, as well as three pairs of scissors in the midst of

the marijuana being processed. Id. at 63, 66.

      At the scene, the officers decided to split up and approach the site from both the

north and the south. However, before the officers were in position, one of the men at the

site, Casey Greene, spotted Captain Lee. The officers then entered the site, identified

themselves as officers, and yelled for everyone to stop. When Greene, Rotino, and two

other men ran, the officers pursued them. Officer Bohbrink eventually caught Rotino

lying on his stomach in a creek bed.

      No marijuana was found actually growing at the scene, but the officers collected

all the marijuana that was there, along with the three pairs of scissors with marijuana

residue on them. The marijuana was laid out to dry for several days and was then sent to

the Indiana State Police Laboratory to be tested and weighed. The testing confirmed that

the plants were marijuana and that they weighed a total of 10.72 pounds.

      The State charged Rotino with Class C felony dealing in marijuana, Class D

felony possession of marijuana, Class A misdemeanor possession of paraphernalia, Class

A misdemeanor resisting law enforcement, and Class B misdemeanor visiting a common

nuisance. A jury trial was held, and on the day of trial, the State dismissed the Class A

misdemeanor possession of paraphernalia charge. The jury found Rotino guilty of the

lesser-included Class D felony dealing in marijuana, Class D felony possession of

marijuana, Class A misdemeanor resisting law enforcement, and Class B misdemeanor

visiting a common nuisance. The trial court entered no judgment on Rotino’s possession

of marijuana conviction on double-jeopardy grounds and sentenced Rotino to one and

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one-half years for dealing in marijuana, 180 days for resisting law enforcement, and

ninety days for visiting a common nuisance, to be served concurrently.

       Rotino now appeals his dealing in marijuana sentence only.

                                 Discussion and Decision

       Rotino contends that there is insufficient evidence to sustain his Class D felony

dealing in marijuana conviction. Our standard of review with regard to sufficiency

claims is well settled. In reviewing a sufficiency of the evidence claim, this Court does

not reweigh the evidence or judge the credibility of the witnesses. Bond v. State, 925

N.E.2d 773, 781 (Ind. Ct. App. 2010), reh’g denied, trans. denied. We consider only the

evidence most favorable to the judgment and the reasonable inferences drawn therefrom

and affirm if the evidence and those inferences constitute substantial evidence of

probative value to support the judgment.          Id. Reversal is appropriate only when a

reasonable trier of fact would not be able to form inferences as to each material element

of the offense. Id.

       Indiana Code section 35-48-4-10 governs dealing in marijuana and provides in

relevant part:

       (a) A person who:
              (1) knowingly or intentionally:
                     (A) manufactures; . . .
                                          *     *       *      *      *
                     marijuana, hash oil, hashish, salvia, or a synthetic drug, pure
                     or adulterated;
       commits dealing in marijuana, hash oil, hashish, salvia, or a synthetic drug,
       a Class A misdemeanor, except as provided in subsection (b).

       (b) The offense is:
              (1) a Class D felony if:
                                          *         *     *     *     *
                                              4
                      (B) the amount involved is:
                             (i) more than thirty (30) grams but less than ten (10) pounds
                             of marijuana . . . .

Additionally, Indiana Code section 35-48-1-18 defines “manufacture” in relevant part as:

       (1) the production, preparation, propagation, compounding, conversion, or
       processing of a controlled substance, either directly or indirectly by
       extraction from substances of natural origin, independently by means of
       chemical synthesis, or by a combination of extraction and chemical
       synthesis, and includes packaging or repackaging of the substance or
       labeling or relabeling of its container.

Rotino contends that there is insufficient evidence that any manufacturing was taking

place. We disagree.

       At trial, evidence was introduced that the site was used for “preparing” and

“processing” the marijuana plants. Captain Lee testified that the unprocessed plants were

on the tailgate that was being used as a worktable. Captain Lee then described that the

leaves and stalks were removed, the leaves were cut into usable pieces, and the buds were

removed. The leaves and buds were then placed on the drying racks that were inside the

trailer. Tr. p. 62-63. Additionally, three pairs of scissors with “real heavy marijuana

residue on the actual knives of the scissors” were found at the site among the marijuana

plants. Id. at 66. This is sufficient evidence for a reasonable jury to determine that

manufacturing of marijuana was taking place at the site through the preparing and

processing of the plants.

       However, Rotino also argues that in order to be manufactured, the marijuana must

be prepared or processed “either directly or indirectly by extraction from substances of

natural origin . . . .” I.C. § 35-48-1-18. He contends that “by extraction from substances

of natural origin” applies to both “directly” and “indirectly,” and therefore the activities
                                             5
taking place at the site do not fit the definition of manufacturing since nothing was being

extracted from the marijuana plants. Appellant’s Br. p. 11-12. We find this argument to

be without merit. “By extraction from substances of natural origin” applies only to

“indirectly,” applying to the instances where contraband is being derived from a natural

source. In this case, however, the natural marijuana plant itself is the contraband, and it

was being directly prepared and processed at the site. Therefore, no extraction from the

plants was necessary under the statute in order for manufacturing to take place.

       Finally, Rotino contends that there is insufficient evidence to show that he was a

principal or accomplice in the manufacturing process. We again disagree, finding that

there is sufficient evidence to show that Rotino was an accomplice, and “[i]n Indiana

there is no distinction between the responsibility of a principal and an accomplice.”

Stokes v. State, 908 N.E.2d 295, 303 (Ind. Ct. App. 2009), trans. denied.

       “We consider four factors to determine whether a defendant acted as an

accomplice: (1) presence at the scene of the crime; (2) companionship with another at

scene of crime; (3) failure to oppose commission of crime; and (4) course of conduct

before, during, and after occurrence of crime.” Castillo v. State, 974 N.E.2d 458, 466

(Ind. 2012). In this case, Rotino was present at the scene of the crime and failed to

oppose the commission of the crime. At trial, Captain Lee testified that when the officers

returned to the scene, he believed that Rotino was one of the three men who were seated

at the table processing the marijuana plants with the three pairs of scissors found with

marijuana residue on them. Tr. p. 66, 86. Additionally, while there is no evidence

concerning Rotino’s behavior before the occurrence of the crime, Rotino was at the table

                                            6
where the processing was taking place, id. at 86, and immediately fled from the scene

when the conservation officers showed up the second time before being caught by Officer

Bohbrink. Id. at 56-57, 98. This behavior is sufficient to allow a reasonable jury to infer

that Rotino was involved with the commission of the crime as an accomplice.

       We therefore find that there is sufficient evidence that Rotino committed Class D

felony dealing in marijuana and affirm his conviction.

       Affirmed.

BAILEY, J., and BROWN, J., concur.




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