D.G. v. State of Indiana (mem. dec.)

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.

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[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).

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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.

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[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

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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).

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[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.

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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

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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,

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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.

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