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).
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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