*1 484 entitled to the total amount charged recover 10. the Coles were for tele- charged phone
it rendered. regard- Coles services calls to Plummer & Co. ing errors on their bills. agree, not We do review of the record presented at trial: shows that evidence of the following cause [8] much Plummer & Co. of this evidence was argues presented that, be- 1. time of Plummer & em- sheets Co. Coles, admittedly who are not ex- ployees done on indicate work was perts accounting, disregard- it should be certain financial statements Ray expert after ed in favor of Plummer's testi- Coles; statements were delivered to the mony. disagree. A fact finder is not testimony expert. bound of an charged prep- 2. for the Coles were corporate Marriage Gray tax re Ind.App., aration of returns even of 696, 703, though their businesses were not incor- N.E.2d reh. denied. Plummer & is, effect, porated; inviting reweigh Co. us to evidence and assess credibility. witness charged 8. an Coles were $62.60 This we will not do. Because there was Co., initial conference at Plummer & support evidence to the trial court's find- notwithstanding policy the firm's of fact, ings judgment affirm we below. conferences; charging for initial Affirmed. meetings 4. time sheets indicate that Ray between Richard Cole and Plum- CONOVER, JJ.,
mer, HOFFMAN and president concur. and sole sharehold- Co., er of Plummer & held on were 20, 1989, 5,
September October 13, purposes and October 1989 for discussing possibility selling Yes However, Yogurt
It's #2. the Coles sold that September business on 1989 and Richard Cole testified there would have been no reason to hold meetings sale;
such after the CONNER, Appellant- James D. charged prep- Defendant, 5. the Coles were for the aration of a cash flow statement which they received; never and no time Indiana, Appellee-Plaintiff. STATE of sheets, entries, log or other documents No. 21A01-9205-CR-126. support were introduced at trial in charges; such Indiana, Appeals Court of charges 6. some of the on the had bills First District. corresponding no time sheets for em- May20,1993. ployees; personal property 7. tax returns
contained incorrect addresses for the businesses; final, 8. did not Coles receive a cor- rected version of the financial state-
ments; charged prep the Coles were for the personal property
aration of four tax required;1 returns when two were single taxing 1. 50 Indiana Administrative Code 4.2-2-1 locations in § district." may states that "a return cover all business *3 Gen., Atty. Indianapolis, appellee-plain- tiff.
ROBERTSON, Judge. appeals James D. Conner his conviction jury after a distributing trial of a sub- stance a controlled sub- stance, a class C Conner received (6) year an enhanced six sentence. Conner (12) raises twelve issues which we restate (9). and consolidate into nine We remand *4 sentencing hearing. for a new In all other respects, we affirm.
FACTS light
The facts most favorable to the verdict indicate that Conner sold six- (16) bags plant teen of moist material that he marijuana to be to a confi- $1,600.00. police informant dential for The police detective involved field tested the substance because sure didn't look like "[i]t marijuana...." drug analyst from Laboratory (2) Police tested two samples from the con- present cluded that no samples. either of the supplied Additional facts are as neces- sary.
DECISION I. asserts that his conviction statutory
must
reversed
be
because
scheme under which he was convicted is
agree
defective.
with Conner
defect;
statutory scheme does contain a
but,
hypertechnical
the defect
in nature
validity
such that it does not affect the
the statute.
Several
the issues raised
Conner relate to the defect. We combine
(8)
our discussion of Conner's
first
three
issues which
states as follows:
distributing
conviction for
Conner's
Defender,
Carpenter,
K.
Public
Susan
represented to be a controlled
substance
Lewis,
Harper, Greg
Deputy
Teresa D.
must
reversed
be
because
Defenders, Indianapolis,
appel-
Public
statutory definition of "distribute" re-
lant-defendant.
quires
delivery
of a "controlled sub-
Carter,
Gen.,
stance,"
Atty.
E.
the statute
Louis
which means that
Pamela
Ransdell,
Gen.,
Deputy Atty.
Office of
does not define a crime?
is defined
4.6(a)
follows:
charged teed
The offense with
cruel and
crime violates
four
because
United States Constitution
Section
tion?
this
Conner's
stated
a substance
(4)
Conner's
*5
distributes;
which
chapter commits Class
*
[*]
separate instances?
by the
the law
16 of
who
conviction
conviction
unusual
[*]
*
reads,
trial
described
the Indiana
eighth
knowingly or
in his
his
judge
*
[*]
Ind.Code
by right
punishment
charge to the
which
should
amendment
pertinent
a
in section
intentionally mis-
L
[*]
a common
State Constitu-
and Article
be
intentionally:
be reversed
[*]
*
free
C
85-48-4-
part, as
guaran-
jury in
4.5 of
from
*
%
law
Id.
substance.
Thus,
Barger
preted
ute will
another of
any
ly construed
{(Emphasis
tion
exclude
statute
should
culate
quires proof
1304. While
As
of the term "distribute"
delivery of "comtrolled substances."
substance,
The construction
set out
not
the
intent of the
expressed in order to
should not be
cases
not be
Penal statutes
sections are inconsistent.
wantonly
added.)
application
However,
a controlled
against
that the defendant
penal statutes are
fairly covered
above,
construed so
other
(1992), Ind., 587 N.E.2d
give
narrow,
rendered
1.0. 85-48-4-4.6
of
of a
than a controlled
State,
efficient
should be
the
statutory defini-
substance,...."
by the statute.
narrowly as to
relates
limit, or emas
penal statute
statute;
legislature.
ineffective,
distributed
penal stat
operation
only to
strict
inter
the
re-
absurd,
possible,
If
a
nugatory.
is
Id.
in
4.5"
or
section
described
The "substance
perform
allowed to
penal statute should be
as:
defined
by the exist
mission as shown
its intended
substance,
con-
than a
any
other
.
to
remedied.
Id.
ing evils intended
a
drug
for which
or
trolled substance
under federal or
required
prescription
prove
the
could not
Barger,
In
law, that:
state
(2)
molesting
of child
of two
classes
which
represented
(1)
expressly
impliedly
or
the
committed because
defendant had
substance;
a controlled
to be
victim was either
prove
could not
circumstances
(2)
under
is distributed
(12)
(11)
years
old at the
or twelve
eleven
person to
lead a reasonable
Barger argued
that would
that a
the offense.
time of
is a controlled
that the substance
statutory
believe
scheme
construction of
strict
molesting required his ac-
substance;
child
prohibiting
or
prove
could not
appearance,
quittal
(3)
dosage unit
because
by overall
size,
of child mo-
color,
markings,
either class
or
that he committed
including shape,
taste,
supreme court
consistency,
lesting.
Id. at 1806. Our
markings,
lack of
holding that
Barger's conviction
physical character-
affirmed
identifying
any other
molesting
the child
a construction of
such
substance,
rea-
would lead a
istic
"absurd;"
"incon-
that it was
statutes was
person to believe
substance
sonable
legislature intended"
that
ceivable
substance;
controlled
is a
D child mo-
acquittal of Class
defendant's
added.)
(Emphasis
1.C. 85-48-4-4.5.
prove
could
lesting where the State
face,
nothing defective
there is
itsOn
(12)
at
least
twelve
victim was
that
in the
The defect
I.C. 85-48-4-4.6.
with
at 1807.
years old. Id.
upon
apparent
statutory
scheme becomes
(1990), Ind.App., statutory
Berry
v. State
of the relevant
examination
an
Berry was convicted of
in
N.E.2d
the terms used
the statute.
of
definitions
marijuana within one
delivery of
attempted
85-48-1-14
is defined
1.C.
"Distribute"
property.
(1000) feet of school
thousand
substance."
deliver ... a controlled
as "to
argued that a strict construction
Berry
added.)
defined
"Delivery" is
(Emphasis
charged,
he was
under which
the statute
385-48-1-11(1)
or con-
as "an actual
1.C.
(1)
35-48-4-10(b)(2)(B), excluded the
from one
structive transfer
Ind.Code
possibility
attempt-
charged
of a conviction for the
cause he could have been
and
marijuana
the stat-
delivery
ed
because
felony
convicted
a lesser
under a dif-
required
prove
Berry
ute
the State to
prohibiting
precise
ferent
statute
tense)
(past
marijuana
had "delivered"
conduct for which he was convicted?
(1000)
within one thousand
feet of a school.
above,
charged
As noted
Conner was
Berry's
at 886.
affirmed
conviction
Id.
distributing
rep-
convicted of
a substance
holding that his
of the statute
construction
resented to be a controlled
as a
substance
to a construction
so narrow
felony
class C
under LC. 85-48-4-4.6.
fairly
that it
a case
covered
exclud[ed]
argues
rights
his constitutional
at
statute."
Id.
have been violated because he could have
always
One can
that statutes were
wish
charged
convicted
delivering
been
In the case at delivered six- bags afforded the discretion to choose whether teen noncontrolled exchange charge to be Conner's conduct as a class C or $1,600.00. fairly His case is covered *6 a class D Conner asserts this is a the statute. question impression of first in Indiana. Moreover, find no error result we question Conner is mistaken: this deletion of the ing from the trial court's Indiana,. has been settled The fact that "controlled" before word "sub word penalty one crime carries a more severe jury challenged in the instructions. stance" prohibiting a different crime identical than above, noted it is inconceivable that As proof of the legislature intended distribu constitutionality conduct is irrelevant to the prosecu in a tion of a controlled substance statutory scheme. Comer v. State 48, (1982), Ind.App., 428 N.E.2d of a noncontrolled trans. de tion for the distribution a controlled represented to be Overlapping carry statutes which nied. Therefore, in the trial court's substance. equal pro differing penalties do not violate prejudiced could not have Con structions showing a that the two stat tection absent find no reversible error. See ner and we recogniz utes are utilized to treat different (1991),Ind., 519, 564 N.E.2d Boyd differently. Id. able classes of defendants 523. Comer, infir we found no constitutional reject statutory construc- Conmner's mity in of Comer's conviction Reckless statutory renders the scheme tion which felony though even Homicide as a class C ineffective, nugatory, and absurd. As Con- prosecuted for Criminal he could have been statute, fairly is covered ner's case felony D for the Recklessness as a class that he conviction is valid and hold his we identical conduct. Id. crime. of a common law not convicted was that he is a Conner has Moreover, asserted find no reversible error we recognizable suspect class. member of a jury. the instruction of charged Nor has he asserted that the State IL. felony to treat him with the more serious differently anyone him than else. There- vio Whether Conner's conviction fore, protection equal we find no violation. right equal protection to lates his be- 490
IIL.
(and
concedes)
Conner asserts
charged
the statute
that under
Conner
rights
pro-
due
to
[9] Whether Conner's
with,
required
prove
to
a
the State was
I.C. 85-
violated because
cess have been
negative:
plant
material Conner
subject to discrimi-
vague
and
48-4-4.6
Con-
sold was not a controlled substance.
natory enforcement?
that the two
ner asserts that the evidence
vague
(2)
plant
of
samples
statute is
taken from the batch
argues that the
weighed approximately two
analyzed under material which
the result of the defect
as
argues:
He
(2)
Issue IL.
insufficient
pounds when dried was
marijuana in
prove that there was no
much
intelligence,
of Einstein's
points
He
out that it would have
batch.
intelligence,
person of common
less a
plant
for him had the
material
been better
dis-
possibly comprehend that the
cannot
contained
as then he could
non-controlled substances
tribution
delivering
more
have been
controlled substances
convicted
represented to be
(80)
thirty
grams marijuana,
a class
than
does not
illegal when a distribution
85-48-4-10(b)(1)(B).
felony
D
under I.C.
place until controlled substances
take
argument
his
on a scienti-
Conner bases
have been delivered.
(reproduced
appendix
in the
fic article
pp.
29.
Conner's brief
brief)
by persons
his
which was written
legislature must be
An act of the
Harvard,
Hopkins,
associated with Johns
constitutionality.
presumption
afforded
Cochran,
Princeton Universities.
Mos-
(1984), Ind., 467 N.E.2d
Ruge v. Kovach
teller,
Tukey, "Principles
Sampling"
Every statute stands clothed with
(1954).
J Am.Statis. Assoc.
constitutionality
con
presumption of
which
prove,
asserts that
in order to
to a 95%
clearly
by showing
tinues until
overcome
subject plant material
certainty, that the
contrary.
Tina T.
to the
Matter of
any marijuana, the State
did not contain
Ind.,
tionate burden between dealing noncontrolled substances fenses of controlled substances represented to be conviction violates Conner's Whether agree dealing drugs. of real and the protection 1.0. 35-48-4-4.6 equal because under Issue with Conner's assertion IV penalty and a disproportionate requires negative, required as proof that the of a evidentiary than the burden different case, notoriously difficult. the instant real prohibiting delivery statutes axiomatic, Moreover, does it is and Conner marijuana? required to dispute, that the State was not above, points out noted As crime prove every essential element of his marijuana, he dealing he real that had been beyond a reasonable doubt. by proof D of a class only have convicted could been statutory scheme that Conner com- 835-48-4-10(b)(1)(B). felony under LC. necessarily unreason- plains about Moreover, mari dealing the crime of real provide for a level of Nor does it able. felony does not a class C juana become required in disproportionate to that proof (10) ten quantity dealt reaches until the drug prosecution of "real" offenses. 85-48-4-10(b)(2)(A). Con pounds. 1.0. Therefore, equal protection find no vio- we out that a conviction versely, points 85-48-4-4.6 felony C under 1.0. lation. a class mari result from the sale one
could
fake
cigarette.
argues
such a
juana
He
VIL.
arbitrary
statutory
is irrational and
scheme
1 and
two
State's
exhibits
Whether
which do not involve
punishes
as it
crimes
material,
improp-
were
bunches
harshly
more
than
controlled substances
into evidence?
erly introduced
of controlled sub
the actual distribution
*8
stances.
entered
plant
The
material was
implicate
funda
has failed to
a
Conner
objection dur
into
over Conner's
evidence
by
right
suspect
or a
class affected
mental
drug analyst from
ing
testimony of the
the
question.
in
There
statutory scheme
the
the
laboratory.
asserts
the state
Conner
fore,
only show the classifi
the State need
plant
the
by permitting
erred
trial court
Rail
has a reasonable basis. U.S.
cation
material,
fungible
which was
(1981),
Retirement Board v. Fritz
road
offense, to
charged
of the
be
gravamen
the
166,
453,
101
Conner police informant who the confidential his crime as a class C that the classification of purchased plant the material allegedly entirely unreasonable. Conner's felony is misrepresenta- dishonesty, a only crime involves the who from was Conner plant the material could have identified substance is tion that a noncontrolled into evidence. dealing The of actu- its introduction substance. controlled 492 has the discre
The trial court
the
failed
Conner asserts
State
present
into evidence
evidence that
admit exhibits
to
sufficient
Conner
tion to
1) specifically intended to distribute
either
positive iden
require
not
absolute
need
Ind.,
2)
(1987),
502
a non-controlled substance or
knew
v.
tification. Sons
State
distributing
a non-controlled sub
proper
may be
1331. Admission
N.E.2d
The
standard for our
stance.
well-known
slight tendency
only a
there is
even where
sufficiency
review of the
of the evidence
the exhibit.
defendant with
to connect the
simply
set out under Issue IV above. We
re
positive identification
The lack of
Id.
requisite
drug
that the
intent in
deal
add
evidence,
weight of the
flects
on the
by
ing
may
proven
cases
be
circumstantial
founda
admissibility.
Id. As the
not its
(1989), Ind., 532
evidence. Mason v. State
exhibit,
the
of an
for the admission
tion
1169,
denied,
1049,
N.E.2d
cert.
U.S.
evidence which
only present
need
1960,
hold,
109 S.Ct.
VIL. conducting ex- procedure A: The an a kind of a routine. present- was amination follows Whether sufficient evidence - We, general in rule specific to I meet a room as a regarding ed Conner's intent investigators persons from the with a non-controlled substance? distribute
493
peril
may
Any
to which Conner
have
agency
have back-
who
justice
criminal
provide
unfairly subjected
me
they can
was of insufficient
information
been
ground
exami-
conducting
polygraph
the
gravity
to
to warrant a mistrial. Conner
prior
point or two
They
specific
have
carry
showing
nation.
failed to
his burden of
that
clarified and
like to have
they
would
no action other than a mistrial could have
asked
specific questions
like
[sic]
[sic]
in which he
remedied
situation
In this case
to that issue.
relevant
about
Therefore,
placed.
find no error.
we
a substance
to be the sale of
happened
it
to be a controlled
reported
IX.
in the state of
contrary to the law
background
sentencing
the trial court's
Whether
discussed
Indiana. We
my seeing Mr. Con-
prior to
information
support
statement
is sufficient
to
1
they
up
set
and
told that
had
ner. was
imposition of an enhanced sentence?
Money had been
purchase.
had made a
asserts the trial court's
Conner
specific
exchanged. They reported two
im
sentencing
justify
statement cannot
my decision to
me. It
incidents to
(6) year sen
position of the enhanced six
only so as
in
of those issues
zero
on one
the trial court's reliance
tence because of
(Em-
in his mind.
confusion
not to cause
improper aggravating circumstances.
upon
added.)
phasis
agree.
lies
granting of a mistrial
trial
discretion of the
the sound
within
[25,26]
discre
The trial court has wide
only for an abuse
and we will reverse
court
determining
to enhance the
tion in
whether
(1990),
Ford v. State
of that discretion.
aggravating
sentence due to
presumptive
Ind.,
A mistrial
is an
N.E.2d 829.
(1988), Ind.App.,
McNeely
factors.
v. State
de
remedy warranted
when
extreme
considering
After
no evidence
defendant
drug
A criminal
dealer.
BAKER, Judge, dissenting.
sentenced on the basis
entitled to be
passage
curious
the record recounts
Dillon
information.
accurate
attempt
photo-
the State's
to introduce a
Ind.,
circumstances above on the suffi- 7, 1991, May On a confidential informant ciency sentencing trial court's state- reported McQuinley to Detective Department Connersville Police that Con- ment. ner had offered to sell the informant one Consequently, we must remand this case $1,600.00. pound marijuana Detec- to the trial court with instructions to con in- McQuinley immediately tive wired the sentencing hearing provide duct a new gave formant transmitter and him with a sufficient basis for the enhancement of buy money. When Conner and the sentence, alternative, or in Conner's met, produced informant a brown presumptive enter the sentence for Con which, bag, Erby, paper according ner's conviction. to the infor- See N.E.2d at mant, respects, all other we affirm. contained "at least 20" individual *11 I schedule involving all other offenses up with baggies ... all rolled "sandwich drugs. marijuana inside." to be appeared [sic] collecting the After at 280-81. Record to Assembly intended That the General money, handing over differently than goods marijuana offenses treat heroin, cocaine, bag and its con- and LSD give drugs like left to "hard" informant Although marijuana is dispute. beyond McQuinley. is to Detective tents drug, 85-48-2- IND.CODE a schedule negative, results came back After the lab from 4(d)(14), specifically excluded it is violating charged Conner with 35-48-4-7(a), punishes which IND.CODE 4.6(a) of the of Indiana's version section I, of schedule possession the unauthorized Act,2 Substances Controlled Uniform felony3 D II, IH, drugs as a Class and IV C which, makes it a Class paraphrasing, 85-48-4-2(a), which Similarly, IND.CODE to represented felony to a substance sell II, I, III or con dealing a schedule makes In really is not. illegal drug which felony punisha an but B trolled substance Class Assembly has words, imprisonment, up twenty years' our General other to ble marijuana from pro so, my opinion-to specifically excludes chosen-rightly also purview.4 its selling con just from individuals hibit selling substances, from also
trolled but contrast, Assembly General stark to be controlled substances simple possession of to make the chose are not sold in fact the substances misdemeanor, when punisha A marijuana Class section, however, arbi This controlled. year imprison than one no more ble Assembly's Even the General 85-48-4-11.5 trarily abandons ment. IND.CODE A misde involving marijuana a Class dealing offenses insistence that explicit all 35-48-4-10.6 We meanor. IND.CODE severely than punished less marijuana be I, II, dealing III a schedule or commits seq. et 35-48-1-1 2. IND.CODE substance, felony.... a Class B controlled added.) may (Emphasis become The offense 35-48-4-7(a) reads as follows: 3. IND.CODE by up fifty years' felony (punishable Class A who, prescription or person without a valid A depending the amount in- imprisonment) on his practitioner the course of order of a transaction, volved, age parties to the knowingly or intention- practice, professional property proximity or a school to school (pure or ally possesses a controlled 35-48-4-2(b). IND.CODE bus. II, III, I, adulterated) or in schedule classified hashish, IV, pos- marijuana commits except or reads as follows: IND.CODE 35-48-4-11 5. substance, a Class D controlled of a session person A who: intentionally possesses (1) knowingly or added.) C is a Class (Emphasis The offense oil, adulterated) marijuana, or hash (pure or eight years' impris- by up felony, punishable hashish; onment, 1000 feet of school within if committed intentionally grows (2) or culti- knowingly or 35-48- bus. IND.CODE property or on a school marijuana; 4-7(b). or vates growing (3) knowing marijuana on his destroy the premises, fails 35-48-4-2(a) as follows: reads 4. IND.CODE plants; person A who: oil, marijuana, hash or possession of commits intentionally: (1) knowingly or However, hashish, a Class A misdemeanor. manufactures; (A) (i) felony amount if the is a Class D offense of; (B) the manufacture finances delivers; (30) grams thirty of mari- is more than involved (C) or hashish, (2) grams hash oil or juana or two of; delivery (D) finances prior an (ii) person conviction of has a if the or adulterated, substance, pure or a controlled oil, involving marijuana, or hash- hash offense III, I, II, except mari- or in schedule classified ish. hashish; oil, or or juana, hash (2) possesses, intent to: with 35-48-4-10(a) reads as follows: IND.CODE manufacture; (A) of; who: (B) the manufacture finance intentionally: (1) knowingly or deliver; (C) or manufactures; (A) of; delivery (D) finance manufacture; (B) adulterated, substance, finances pure or a controlled delivers; (C) III, I, II, or except mari- in schedule classified of; delivery (D) hashish; finances oil, or juana, hash *12 496 severely than an "honest" one? Assembly cho treated less has why the General
know involving marijuana marijuana of person who sells one ounce to treat offenses sen simply is not marijuana A misdemeanor and faces leniently: more commits a Class as the other penalty year jail, to be as "bad" considered a maximum of one but I controlled substances. represents schedule if the to be mari- he substance not, juana in fact it is the sentence when statutory particular By enacting this possible eight years' im- skyrockets to a scheme, then, Assembly explic- the General person gram prisonment. A who sells one punish gave to its intent to itly felony commits a Class B and of cocaine severely involving marijuana less offenses penalty twenty years' possible faces a other, drugs like co- more harmful than gram if he sells one of bak- imprisonment; treatment, I legislative this caine. Given cocaine, ing says penalty it is the soda but punishment the justify a loss to am at years' impris- drops eight to no more than 35-48-4-4.6, un- out IND.CODE meted and sen- Conner was convicted onment. der which years' imprisonment. The to six tenced sum, good punish a idea to In while it is ignores separate the completely section repre sell substances those individuals who previ- and milder treatment classification reality in sented to be controlled but which offenses, marijuana and cre- ously afforded controlled, are not IND.CODE 85-48-4-4.6 an results. Had Conner sold ates absurd rest ignores the more lenient treatment the marijuana, he have of real would ounce upon marijuana of of the Act bestows and a A misdemeanor committed Class Although penal should fenses. statutes year more than one not have served could brings given interpretation an efficient contrast, he sold disturbing had jail. in operation expressed to the intent of the oregano claimed it was mari- pinch but legislature, overly should not be narrowed committed a Class C
juana, he would have covered, fairly and so as to exclude cases to felony could have been sentenced and per to ... should be allowed possible "[ilf jail. Compared to other eight years mission as shown form their intended substances, I, II, or III controlled schedule remed existing evils intended to be the and marijuana result is both irrational (1992), Ind., ied[,]"' 587 Barger v. State smelly. 1304, 1306, possible when this is not N.E.2d recognize Assem- Although General strictly against they must be construed punish person bly may legitimately who Further, State. 1 it sneakily marijuana, "fake" find sells principle a statute should general As a disproportionate impossible to reconcile equal protection upon to those grant imposed for that offense with punishment if it acts. But a statute should whom imposed for the sale of real punishment classes and dis- create and define several legislature's explicit marijuana, given the similarly assign burdens benefits and more lenient treatment of- separate classes, type the same between oil, involving marijuana, hash fenses necessarily repugnant statute is states, if, it majority as the hashish. Even If equal protection clause. there is mari- acceptable punish a "dishonest" treating the classes basis for reasonable severely more than an "hon- juana dealer may pass dealer, dissimilarly then the statute why a "dishonest" marijuana est" Lindsey muster. v. Natural Carbonic I, II, III dealer or other schedule or cocaine oil, hashish, felony pure D if the marijuana, terated; adul- The offense is a Class hash or or thirty grams or but less than involved is more than (2) possesses, with intent to: eighteen pounds, recipient is under ten if manufacture; (A) old, prior years conviction or if the has a of; (B) manufacture finances [sic] involving marijuana. IND.CODE 35-48-4- deliver; (C) or 10(b)(1). than If the amount involved is more of; (D) delivery [sic] finances pounds 1000 feet of or is transferred within ten hashish, oil, marijuana, pure or adul- hash bus, the offense be- a school or on a school terated; IND.CODE 35-48-4- comes a Class C dealing marijuana, a Class A mis- commits 10(b)(2). demeanor....
497
337,
61,
(1911),220 U.S.
emptied
31 S.Ct.
MceQuinley
Detective
out all
Co.
Gas
baggies
trays
dry.
L.Ed. 369.
onto two
55
247,
232,
Ind.
Martin
later,
took
Three months
the contents
431,
denied,
430,
420 U.S.
cert.
N.E.2d
tray
police
of one
to the state
lab
India-
(1975).
833,
plant material samples small drawn the two ably conclude marijua- no contained the remainder proved that the testimony no There was na? was, in tex- example, uniform material a small ture, color, shape, DISTRIBUTING, INC., McCarty's such that B & V whole. represent sample might well Patterson, Siding, Greg Roofing & Ind., Below, v. State Woodson Appellants-Defendants Cf. support (evidence sufficient N.E.2d of more than possession conviction for MAYO, Appellee Brian K. emptied police grams of heroin when three -Plaintiff Below. in size "uniform of 100 bindles the contents "thoroughly and then appearance" No. 93A02-9212-EX-617.1 heroin con- determine total mixed" them to Indiana, Appeals of Court of fact, than the "tobacco-like tent). other District. Third requests given on two label substance" examination, contains abso- the record May plant material description of the lutely no sold. in the no really was If there sold, a Class C committed
batch however, slight- If, there was the com- marijuana present, Conner est bit felony D at most. only a mitted Class undertake a chooses to When 85-48-4-4.6, under IND.CODE prosecution evidentiary burden: on an extra it takes doubt that a reasonable proving beyond entirety of the a con- presence of lacks controlled Judge. of the Chief assigned order to this office 1. This case