James Justin Spencer, Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Statement of the Case

[1] James Justin Spencer (“Spencer”) appeals, following a jury trial, his convictions for Level 2 felony dealing in a narcotic drug,¹ Level 4 felony unlawful possession of a firearm by a serious violent felon,² Level 5 felony dealing in marijuana,³ Level 6 felony unlawful possession of a syringe,⁴ Class A misdemeanor possession of a controlled substance,⁵ and Class A misdemeanor possession of paraphernalia.⁶ Spencer argues that: (1) the trial court abused its discretion when it admitted evidence; and (2) there was insufficient evidence supporting his convictions. Concluding that: (1) the trial court did not abuse its discretion when it admitted evidence; and (2) there was insufficient evidence supporting Spencer's Level 5 felony dealing in marijuana conviction and sufficient evidence supporting his other five convictions, we affirm in part and reverse in part.

[2] We affirm in part and reverse in part.

Issues

1. Whether the trial court abused its discretion when it admitted evidence.

2. Whether there was sufficient evidence supporting Spencer's convictions.

Facts

[3] In December 2021, Marion Police Department Officer Max Fischer (“Officer Fischer”) and Officer Jay Bronneau (“Officer Bronneau”) traveled to an apartment in which Spencer had been living to speak with Spencer regarding his probation.⁷ Officer Bronneau knocked on the apartment's front door while Officer Fischer walked to the apartment's exterior glass sliding door. Officer Fischer could see into the apartment through the sliding glass door because the door was slightly ajar and the blinds on the door were open. Micah Johnson (“Johnson”) answered the front door. While Officer Bronneau was talking to Johnson, Spencer, who was also in the apartment, was “making motions and signaling that he wasn't there.” (Tr. Vol. 1 at 111). Officer Fischer saw Spencer through the glass sliding door and entered the apartment. Officer Fischer informed Spencer that he was under arrest, and Spencer “fled into the bathroom.” (Tr. Vol. 1 at 111).

[4] Officer Fischer ordered Spencer to come out of the bathroom, and Spencer did not respond. Officer Fischer drew his firearm while Officer Bronneau entered the bathroom and handcuffed Spencer. While the officers were walking Spencer out of the bathroom, Officer Fischer backpedaled into a bedroom (“the bedroom”) across the hall from the bathroom to give Officer Bronneau space to move Spencer down the hall and back into the living room. While in the bedroom, Officer Fischer observed on a desk “various syringes” inside of cups, various plastic wrappers with “half pills[,]” and a crystal-like substance. (Tr. Vol. 1 at 115). The pills included an orange pill and a green pill. Officer Fischer also observed a metal spoon with a burnt residue on it and a cotton filter. Officer Fischer photographed and collected the items that he saw on the desk.

[5] While the officers were leading Spencer outside to a patrol car, Spencer asked the officers to collect some clothing for him out of the bedroom. It is unclear if the officers complied with this request. When the officers asked Spencer if he had recently used drugs, he admitted that he had. Before the officers drove away, Johnson approached their patrol car, and Officer Fischer followed Johnson back into the apartment. Johnson led Officer Fischer back to the bedroom and opened additional drawers on the desk,⁸ revealing additional contraband and a handgun. When Johnson continued to open additional desk drawers in the bedroom, Officer Fischer told Johnson to stop. Based on what he had seen in plain view and what he had seen when Johnson had opened the desk drawer, Officer Fischer contacted officers on the JEAN team.⁹

[6] The JEAN team officers, which included Sergeant Richard Sisson (“Sergeant Sisson”) and Detective Leland Smith (“Detective Smith”), came to the apartment and also observed in the bedroom the contraband in plain view and the items in the opened desk drawers. The JEAN team officers applied for and received a search warrant to search the bedroom. The JEAN team officers returned to the apartment and searched the bedroom.¹⁰ During their search, the officers recovered: (1) six plastic bags containing a brown compressed powder later identified as fentanyl; (2) a grinder with a green leafy residue; (3) multiple hydrocodone pills; (4) multiple digital scales; (5) a glass pipe with burnt residue; (6) a chewing gum wrapper with a brown powder inside of it; (7) a rolled up dollar bill with residue inside of it; (8) a spoon with a bent handle; (9) a cellophane wrapper with chunks of a white substance inside of it; (10) a package of rolling paper; (11) a burnt cigarette filled with a green leafy substance; (12) a spoon with a “smoke zilla inscription” on it; (13) a ziplock bag containing multiple plastic baggies; (14) multiple baggies containing a green leafy substance; (15) a handgun; (16) a plastic baggy containing a pink powder later identified as buprenorphine; and (17) over $3,300 in cash. (Tr. Vol. 1 at 147). The officers field tested the green leafy substance, and it tested positive for marijuana. The marijuana weighed approximately 0.62 pounds. In the bedroom, officers also found a cell phone and a hospital report with Spencer's name on it.

[7] The State ultimately charged Spencer with Level 2 felony dealing in a narcotic drug for the fentanyl, Level 4 felony unlawful possession of a firearm by a serious violent felon, Level 5 felony dealing in marijuana, Level 6 felony unlawful possession of a syringe, Class A misdemeanor possession of a controlled substance for the hydrocodone, and Class A misdemeanor possession of paraphernalia for the pipe and spoons.

[8] The trial court held a jury trial in January 2024. The first day of the trial ended with opening statements from the State and Spencer. The next morning, on the second day of trial, Spencer orally moved to suppress evidence. The trial court, after asking Spencer why he had not filed a motion to suppress before the start of trial, held a suppression hearing. Spencer argued that all the items that were not “specifically note[d] ․ in plain view” should be suppressed. (Tr. Vol. 1 at 83). Spencer argued that the items that were found after the officers had returned to the apartment with Johnson should be suppressed because they had been unlawfully seized. The State argued that Johnson asking the police officers to return to the apartment and Johnson opening drawers did not constitute a search by the police officers. The trial court denied Spencer's oral motion to suppress and stated that it believed that it “was reasonable” for the officers to take the action they had taken “in response to [Johnson] calling their attention to contraband[.]” (Tr. Vol. 1 at 89-90). Spencer asked the trial court for a continuing objection to any evidence seized that was not in plain view. The trial court acknowledged Spencer's continuing objection.

[9] During Officer Fischer's testimony, the State moved to admit the multiple syringes, the orange and green pills, the spoon with burnt residue, and the crystal-like substance that Officer Fischer had observed on the desk when he had backed into the bedroom. Spencer did not object to their admission because these items were in plain view. During Sergeant Sisson's testimony, the State moved to admit: (1) six plastic bags containing a brown compressed powder later identified as fentanyl; (2) a grinder with a green leafy residue; (3) multiple hydrocodone pills; (4) multiple digital scales; (5) a glass pipe with burnt residue; (6) a chewing gum wrapper with a brown powder inside of it; (7) a rolled up dollar bill with residue inside of it; (8) a spoon with a bent handle; (9) a cellophane wrapper with chunks of a white substance inside of it; (10) a package of rolling paper; (11) a burnt cigarette filled with a green leafy substance; (12) a spoon with a “smoke zilla inscription” on it; (13) a ziplock bag containing multiple plastic baggies; (14) multiple baggies containing a green leafy substance; (15) a handgun; (16) a plastic baggy containing a pink powder later identified as buprenorphine; and (17) over $3,300 in cash. (Tr. Vol. 1 at 147). Spencer objected pursuant to his continuing objection, and the trial court admitted the evidence over his objection.

[10] Sergeant Sisson also testified that often “people who distribute illegal narcotics will have bags on hand as means of packaging.” (Tr. Vol. 1 at 148). When the State asked Detective Smith if the large amount of cash, the baggies, the quantity of fentanyl, the scales, and the handgun were indicative of a user, Detective Smith replied, “No. That's indicative of someone who is dealing.” (Tr. Vol. 1 at 247). Detective Smith also testified that it was “very odd” to see “a user with a large amount of drugs[.]” (Tr. Vol. 1 at 227). Detective Smith further testified that the amount of drugs found in the bedroom was “a dealer amount.” (Tr. Vol. 1 at 228).

[11] A forensic scientist with the Indiana State Police Lab testified that she had tested the brown compressed powder and that it had tested positive for fentanyl. The forensic scientist also testified that the pink powdered substance had tested positive for buprenorphine. The State moved to admit the forensic scientist's report (“the report”), and Spencer did not object to its admission. The trial court admitted the report into evidence. The report provided that the total weight of the fentanyl was 33.51 grams.

[12] At the conclusion of the jury trial, the jury found Spencer guilty of dealing in a narcotic drug, dealing in marijuana, unlawful possession of a syringe, possession of a controlled substance, and possession of paraphernalia. Spencer waived his right to a jury for the second phase of the trial, which dealt with the unlawful possession of a firearm by a serious violent felon charge. During this phase, the State presented evidence that Spencer had a prior conviction of Class B felony dealing in cocaine. The State argued that Spencer had unlawfully possessed a firearm. The State also argued that the prior dealing in cocaine conviction elevated Spencer's Level 6 felony possession of marijuana conviction to a level 5 felony and his Class C misdemeanor possession of paraphernalia conviction to a Class A misdemeanor. Spencer argued that there was no evidence that he had possessed the firearm found in the bedroom. At the conclusion of the second phase of the trial, the trial court found Spencer guilty of Level 4 felony unlawful possession of a firearm by a serious violent felon and elevated the dealing in marijuana and paraphernalia convictions based on Spencer's prior conviction.

[13] At Spencer's sentencing hearing, the trial court sentenced Spencer to: (1) twenty-five (25) years, with twenty-three (23) years executed at the Indiana Department of Correction (“DOC”) and two (2) years suspended to probation for his Level 2 felony dealing in a narcotic drug conviction; (2) ten (10) years executed for his Level 4 felony unlawful possession of a firearm by a serious violent felon conviction; (3) five (5) years executed for his Level 5 felony dealing in marijuana conviction; (4) two (2) years executed for his Level 6 felony unlawful possession of a syringe conviction; (5) one (1) year for his Class A misdemeanor possession of a controlled substance conviction; and (6) one (1) year for his Class A misdemeanor possession of paraphernalia conviction. The trial court ordered these sentences to be served concurrently to one another for an aggregate sentence of twenty-five (25) years, with twenty-three (23) years executed at the DOC and two (2) years suspended to probation.

[14] Spencer now appeals.

Decision

[15] Spencer argues that: (1) the trial court abused its discretion when it admitted evidence; and (2) there was insufficient evidence supporting his convictions. We address each of his arguments in turn.

1. Admission of Evidence

[16] Spencer first argues that the trial court abused its discretion when it admitted into evidence items revealed to the police officers by Johnson. We review the admission of evidence for an abuse of discretion, which occurs only when the admission is clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights. Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013). “However, when a party argues the admission of evidence constituted a constitutional violation, we apply a de novo standard of review.” Miller v. State, 201 N.E.3d 683, 687 (Ind. Ct. App. 2022), trans. denied.

A. Fourth Amendment

[17] Spencer first challenges the admission of the evidence under the Fourth Amendment of the United States Constitution, which provides that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. Amend. IV.

[18] “The fundamental purpose of the Fourth Amendment to the United States Constitution is to protect the legitimate expectations of privacy that citizens possess in their persons, their homes, and their belongings.” Taylor v. State, 842 N.E.2d 327, 330 (Ind. 2006). This protection has been “extended to the states through the Fourteenth Amendment.” Bradley v. State, 54 N.E.3d 996, 999 (Ind. 2016). “As a deterrent mechanism, evidence obtained in violation of this rule is generally not admissible in a prosecution against the victim of the unlawful search or seizure absent evidence of a recognized exception.” Clark, 994 N.E.2d at 260. “When a search is conducted without a warrant, the State has the burden of proving that an exception to the warrant requirement existed at the time of the search.” Bradley, 54 N.E.3d at 999 (cleaned up).

[19] Spencer specifically argues that the police officers violated the Fourth Amendment when they unlawfully seized additional contraband after Johnson had opened desk drawers in the bedroom. The State, however, argues that Johnson's actions were those of a private individual and thus, the Fourth Amendment did not apply to Johnson's actions. We agree with the State.

[20] “It is axiomatic that the Fourth Amendment does not apply to private entities.” United States v. Koenig, 856 F.2d 843, 846 (7th Cir. 1988). See also Rann v. Atchison, 689 F.3d 832, 836 (7th Cir. 2012) (“Long-established precedent holds that the Fourth Amendment does not apply to private searches.”), cert. denied. “Like much of the Constitution, ‘[the Fourth Amendment] was intended as a restraint upon the activities of sovereign authority.’ ” Koenig, 856 F.2d at 846-47 (quoting Burdeau v. McDowell, 256 U.S. 465, 475 (1921)). “In Burdeau ․ , the Supreme Court held that the Fourth Amendment protects only against searches and seizures which are made under governmental authority, real or assumed, or under color of such authority and that the exclusionary machinery of the Fourth Amendment could not be employed to limit the admissibility of evidence seized by private individuals.” United States v. Harper, 458 F.2d 891, 893 (7th Cir. 1971) (cleaned up), cert. denied. Even a “wrongful search or seizure conducted by a private party does not rise to a constitutional violation of the Fourth Amendment, nor [does it] prevent the government from using evidence that it has acquired lawfully.” Koenig, 856 F.2d at 847 (cleaned up). See also United States v. Jacobsen, 466 U.S. 109, 114 (1984) (explaining that the Supreme Court has “consistently construed” the Fourth Amendment “protection as proscribing only governmental action” and that “it is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official”) (internal citations omitted).

[21] A defendant has “the burden of establishing a prima facie case that the search was instigated by a governmental agent rather than a private entity.” Koenig, 856 F.2d at 847. “[T]he question whether a private searcher acts as an instrument or agent of the government must be made by the trial court on a case-by-case basis, and [a trial court's decision] may be reversed only if clearly erroneous.” Id. at 848. “[T]wo critical factors in the instrument or agent analysis are whether the government knew of and acquiesced in the intrusive conduct and whether the private party's purpose for conducting the search was to assist law enforcement agents or to further [its] own ends.” Id. at 847 (internal quotation marks and citation omitted). “Other useful indicators are whether the private actor performed the search at the request of the government and whether the government offered a reward.” Id.

[22] Here, the record reveals that Johnson approached Officer Fischer and Officer Bronneau's police car and asked the officers to return to the apartment. Johnson, without the direction or request of a police officer, proceeded to open the drawers to the desk, revealing additional contraband to the officers. When Johnson continued to open additional drawers, the officers told Johnson to stop. The officers then called in the JEAN team, and the JEAN team officers requested and received a warrant to search the bedroom. Officers did not know of and did not acquiesce to Johnson's conduct. Instead, the officers were preparing to leave the scene with Spencer before Johnson had approached their car. Additionally, after following Johnson back into the bedroom, the officers told Johnson to stop opening additional drawers. Based on the record before us, we hold that Johnson was acting as a private citizen and not a government actor when he asked the officers to return to the apartment and when he opened the desk drawers. Accordingly, we hold that the Fourth Amendment is inapplicable to Johnson's search. See Jacobsen, 466 U.S. at 113 (explaining that Fourth Amendment protections are “wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government”) (internal citations omitted).¹¹

B. Indiana Constitution

[23] Spencer also argues that the officers violated Article 1, Section 11 of the Indiana Constitution, which provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated[.]” IND. CONST. ART. 1, § 11. “The purpose of this section is to protect those areas of life that Hoosiers consider private from unreasonable police activity.” State v. Washington, 898 N.E.2d 1200, 1206 (Ind. 2008), reh'g denied. Although Article 1, Section 11 of the Indiana Constitution contains language nearly identical to the Fourth Amendment of the United States Constitution, we interpret Article 1, Section 11 independently. See Shotts v. State, 925 N.E.2d 719, 726 (Ind. 2010). “[W]e focus on the actions of the police officer[ ] and employ a totality-of-the-circumstances test to evaluate the reasonableness of the officer's actions.” Austin v. State, 997 N.E.2d 1027, 1034 (Ind. 2013) (cleaned up). The reasonableness of a law enforcement officer's search or seizure requires balancing three factors: (1) the degree of concern, suspicion, or knowledge that a violation has occurred; (2) the degree of intrusion the method of the search or seizure imposes on the citizen's ordinary activities; and (3) the extent of law enforcement needs. Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005).

[24] The State, however, argues that Spencer has waived this claim. We agree with the State. Although Spencer cites to the Indiana Constitution and the three-factor test from Litchfield, he did not provide an analysis of the Litchfield factors independent from his Fourth Amendment argument. Thus, he has waived his Indiana Constitutional claim on appeal. See Holloway v. State, 69 N.E.3d 924, 931 (Ind. Ct. App. 2017) (holding that a defendant waives a state constitutional claim when he does not provide any analysis of the Litchfield factors independent from his analysis under the Fourth Amendment), trans. denied.

[25] Waiver notwithstanding, Spencer's challenge under the Indiana Constitution fails because Spencer has presented nothing to support his contention that Johnson was acting as a governmental actor and not as a private citizen. See Hutchinson v. State, 477 N.E.2d 850, 853 (Ind. 1985) (rejecting challenge to the admission of evidence under Fourth Amendment and Section 11 because the defendant had produced no evidence that the private citizen who had provided incriminating evidence “had been solicited to act as an agent for the police”). Accordingly, the trial court did not abuse its discretion when it admitted evidence.

2. Sufficiency

[26] Spencer also argues that there was insufficient evidence supporting his convictions. “Sufficiency-of-the-evidence claims trigger a deferential standard of review in which we neither reweigh the evidence nor judge witness credibility, instead reserving those matters to the province of the jury.” Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (cleaned up). “A conviction is supported by sufficient evidence if there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.” Id. (cleaned up). “In conducting that review, we consider only the evidence that supports the jury's determination, not evidence that might undermine it.” Id.

[27] We first address the sufficiency of the evidence supporting Spencer's Level 5 felony dealing in marijuana conviction. Indiana Code § 35-48-1-19(b)(6)¹² provides that the term “marijuana” does not include “hemp” as defined by Indiana Code § 15-15-13-6. Indiana Code § 15-15-13-6 defines “hemp” as:

the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9-tetrahydrocannabinol concentration of not more than three-tenths of one percent (0.3%) on a dry weight basis, for any part of the Cannabis sativa L. plant.

[28] Thus, our legislature has established a clear distinction between legal hemp and illegal marijuana based on the THC concentration present in the plant material. Based on that clear distinction, the State is “now require[d] [ ] to prove beyond a reasonable doubt that a substance is marijuana by proving that the substance's delta-9-THC concentration exceeds 0.3% on a dry weight basis.” Fritz v. State, 223 N.E.3d 265, 277 (Ind. Ct. App. 2023).

[29] Here, the State has made no such showing. Instead, the State presented testimony that the officers had field tested the leafy green substance, and it field tested positive for THC. The State did not submit the alleged marijuana for testing and, thus, did not show that the delta-9-THC concentration of the alleged marijuana exceeded 0.3%. Therefore, there was insufficient evidence supporting Spencer's Level 5 felony dealing in marijuana conviction. See Lakes v. State, 224 N.E.3d 373, 375 (Ind. Ct. App. 2024) (holding that an officer's testimony that he smelled the odor of marijuana and that a substance field tested positive for marijuana are not sufficient to prove that a substance is illegal marijuana because they do not show that the delta-9-THC concentration exceeded 0.3%). See also Fritz, 223 N.E.3d at 277-78 (holding that an officer's opinion testimony and a field test that tested positive for THC were insufficient to prove that a substance was illegal marijuana). Accordingly, we reverse Spencer's Level 5 felony dealing in marijuana conviction.

[30] Spencer also argues that there was insufficient evidence that he possessed the drugs and contraband found in the bedroom. He specifically challenges the possession element of each of his convictions. Proof of possession of contraband may rest upon proof of either actual or constructive possession. Houston v. State, 997 N.E.2d 407, 409-10 (Ind. Ct. App. 2013). “Actual possession occurs when a person has direct physical control over an item.” Cruz v. State, 218 N.E.3d 632, 639 (Ind. Ct. App. 2023) (cleaned up), trans. denied. Constructive possession requires a showing that the defendant had “both the intent and capability to maintain dominion and control over the contraband.” Bradshaw v. State, 818 N.E.2d 59, 62-63 (Ind. Ct. App. 2004). “The proof of a possessory interest in the premises on which illegal [items] are found is adequate to show the capability to maintain dominion and control over the items in question.” Gee v. State, 810 N.E.2d 338, 340 (Ind. 2004). See also Cannon v. State, 99 N.E.3d 274, 279 (Ind. Ct. App. 2018) (a house or apartment used as a residence is controlled by the person who lives in it and that person may be found in control of any drugs discovered therein, whether he is the owner, tenant, or merely an invitee), trans. denied. This applies whether possession of the premises is exclusive or not. Id.

[31] Here, the record is clear that Spencer was living in the apartment. Officers came to the apartment for a probation check with Spencer. Further, Spencer asked the officers to gather some of his clothing from the bedroom. Also, in the bedroom, officers found medical paperwork with Spencer's name. Therefore, the capability prong of constructive possession is supported by the evidence.

[32] The intent element of constructive possession is shown if the State demonstrates the defendant's knowledge of the presence of the contraband. Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999). A defendant's knowledge may be inferred from either the exclusive dominion and control over the premises containing the contraband, or, if the control is non-exclusive, evidence of additional circumstances pointing to the defendant's knowledge of the presence of contraband. Id. at 6. These additional circumstances may include: “(1) a defendant's incriminating statements; (2) a defendant's attempting to leave or making furtive gestures; (3) the location of contraband like drugs in settings suggesting manufacturing; (4) the item's proximity to the defendant; (5) the location of contraband within the defendant's plain view; and (6) the mingling of contraband with other items the defendant owns.” Gray v. State, 957 N.E.2d 171, 175 (Ind. 2011). The State is not required to prove all additional circumstances when showing that a defendant had the intent to maintain dominion and control over contraband. Gee, 810 N.E.2d at 344. Further, these listed circumstances are not exhaustive. Cannon, 99 N.E.3d at 280.

[33] Here, our review of the record reveals that when officers arrived at the apartment for a probation check on Spencer, Spencer signaled to Johnson to tell the officers that he was not at the apartment. When the officers saw Spencer, he fled into the bathroom. Further, Spencer made incriminating statements. Specifically, when the officers arrested Spencer, he admitted that he had recently used drugs. Additionally, Spencer asked the officers to gather some of his clothing from the bedroom. The bedroom also included medical paperwork with Spencer's name on it, showing that Spencer's belongings were comingled with the contraband found in the bedroom. This evidence supports the intent element of constructive possession. There was sufficient evidence that Spencer constructively possessed the contraband and firearm found in the bedroom.¹³

[34] Spencer also argues that there was insufficient evidence that he possessed, with the intent to deliver, the fentanyl. We disagree.

[35] Indiana Code § 35-48-4-1(a)(2) provides that a person who “possesses, with intent to ․ deliver ․ cocaine or a narcotic drug, pure or adulterated, ․ commits dealing in cocaine or a narcotic drug, a Level 5 felony[.]” The statute further provides that the offense is a Level 2 felony if “the amount of the drug involved is at least ten (10) grams[.]” I.C. § 35-48-4-1(e)(1). “Intent, being a mental state, can only be established by considering the behavior of the relevant actor, the surrounding circumstances, and the reasonable inferences to be drawn therefrom.” Richardson v. State, 856 N.E.2d 1222, 1227 (Ind. Ct. App. 2006), trans. denied. Circumstantial evidence showing possession with intent to deliver may support a conviction. Id. “Possession of a large quantity of drugs, money, plastic bags, and other paraphernalia is circumstantial evidence of intent to deliver.” McGuire v. State, 613 N.E.2d 861, 864 (Ind. Ct. App. 1993), reh'g denied, trans. denied. “Furthermore, the more narcotics a person possesses, the stronger the inference that he intended to deliver it and not consume it personally.” Wilson v. State, 754 N.E.2d 950, 957 (Ind. Ct. App. 2001).

[36] Here, there was ample circumstantial evidence showing Spencer's intent to deliver. First, the amount of fentanyl collected from the bedroom totaled approximately 33.51 grams. Detective Smith testified that this quantity was consistent with a person who was dealing. Further, officers found along with the drugs, a laundry list of additional items including scales, plastic baggies, multiple pieces of paraphernalia such as glass pipes and spoons, over three thousand dollars in cash, and a handgun. Detective Smith testified that these additional items were indicative of someone who was dealing drugs, and Sergeant Sisson testified that the plastic baggies were indicative of someone who was packaging drugs. There was sufficient evidence of Spencer's possession of fentanyl with intent to deliver.¹⁴

[37] Based on our review of the evidence presented at the jury trial, we conclude that there was sufficient evidence from which the jury or the trier of fact could have found Spencer guilty of Level 2 felony dealing in a narcotic drug, Level 4 felony unlawful possession of a firearm by a serious violent felon, Level 6 felony unlawful possession of a syringe, Class A misdemeanor possession of a controlled substance, and Class A misdemeanor possession of paraphernalia. Accordingly, we affirm the trial court's judgment on these convictions.

[38] Affirmed in part and reversed in part.

FOOTNOTES

1.   Indiana Code § 35-48-4-1.

2.   I.C. § 35-47-4-5.

3.   I.C. § 35-48-4-10.

4.   I.C. § 16-42-19-18.

5.   I.C. § 35-48-4-7.

6.   I.C. § 35-48-4-8.3.

7.   Spencer lived in the apartment with his grandmother.

8.   At trial, officers referred to the desk as a desk and as a dresser. They are one in the same.

9.   JEAN is an acronym for joint enforcement against narcotics, and the JEAN team is the local police drug task force.

10.   During the search, Spencer's grandmother, Johnson, and a third individual named Derek were present.

11.   Spencer also argues that the cases cited by the trial court during the suppression hearing were distinguishable from the facts of his case because, in those cases, “a private individual secured the evidence and turned it over to the police, sometimes months after it had been obtained by the non-governmental individual.” (Spencer's Br. 19). Spencer does not articulate or cite to any authority explaining how the amount of time is relevant to whether an individual is a government actor or a private citizen, which is the central question of our analysis.

12.   We note that, during the 2025 session, our legislature repealed Indiana Code § 35-48-1-19 and replaced this statutory definition of marijuana in Indiana Code § 35-48-1.1-29, which becomes effective on July 1, 2025.

13.   Spencer attempts to argue, much like he did at trial, that the police “didn't obtain any fingerprints or DNA from any of the items.” (Spencer's Br. 26). Spencer's arguments amount to a request to reweigh the evidence, which we will not do. See Hancz-Barron, 235 N.E.3d at 1244.

14.   Spencer argues that his admission to police officers that he had recently used shows that “he was a user rather than a dealer.” (Spencer's Br. 26). Spencer's argument is a request to reweigh the evidence, which we will not do. See Hancz-Barron, 235 N.E.3d at 1244.

Pyle, Judge.

Judges Weissmann and Felix concur. Weissmann, J., and Felix, J., concur.