Jimmy Tyree Neal v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: August 15, 2019
• Docket: 19A-CR-174
• Status: Published

Opinion

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