Mathias, J.
Jennifer Hall (“Hall”) was convicted in Washington Superior Court of Level 4 felony aiding the dealing of a narcotic drug. Hall appeals her conviction and argues that the evidence is insufficient to prove that she “manufactured” heroin, the enhancing circumstance that elevated her offense to a Level 4 felony. Hall also argues that the trial court committed fundamental error when it admitted evidence of her prior criminal history and drug use in violation of Evidence Rule 404(b).
Concluding that Hall has not established fundamental error, but that the evidence is insufficient to support her Level 4 felony conviction, we reverse and remand with instructions to vacate Hall’s Level 4 felony conviction, enter a judgment of conviction for Level 5 felony dealing, and resentence Hall accordingly.
On October 12, 2017, Special Agent Kristi Schumacher (“Agent Schumacher”) of the Bureau of Alcohol, Tobacco, Firearms, and Explosives worked with a confidential informant (“CI”) to set up a controlled buy for heroin from John Losson (“Losson”). The CI arranged for Agent Schumacher to purchase one gram of heroin for $200.00.
Agent Schumacher and the CI arrived at the prearranged location of the buy, an alley near CVS in Salem, Indiana. Shortly thereafter, a silver vehicle drove into the alley, and Agent Schumacher recognized the driver, Losson. She also noticed a woman, later identified as Hall, sitting in the passenger seat.
Agent Schumacher and the CI walked up to Losson’s vehicle on the passenger side. Losson handed a baggie containing heroin to Hall, and Hall handed it to Agent Schumacher. Because the baggie did not contain a gram of heroin, Agent Schumacher gave $140 to Hall. Hall then gave the money to Losson. The agent asked if “the product was good.” Losson replied, “oh yeah,” and Hall looked at the agent and shook her head yes. The CI then asked Losson if she could buy “go go,” i.e. methamphetamine, and Losson replied that he was working on that. The substance in the baggie was later confirmed to be .28 gram of heroin.
On February 23, 2018, Hall was charged with Level 4 felony aiding, inducing, or causing dealing in a narcotic drug. The State alleged that Hall was an accomplice to manufacturing heroin because Losson packaged the drug. ….
First, Hall argues that the State failed to prove that she “manufactured” heroin, which elevated her offense from a Level 5 felony to a Level 4 felony. A person who knowingly or intentionally delivers heroin commits a Level 5 felony. See Ind. Code § 35-48-4-1(a)(1). However, the offense is a Level 4 felony if “the amount of the drug involved is less than one (1) gram and an enhancing circumstance applies[.]”
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There is no question that Losson and Hall committed Level 5 felony dealing in heroin, and the parties stipulate to the propriety of that conviction. With regard to her claim of insufficient evidence, Hall only challenges the Level 4 felony enhancement and argues that the evidence was insufficient to establish that she aided Losson in packaging the heroin.
The State argues that Agent Schumacher’s testimony concerning the common practices of drug dealers in southern Indiana is sufficient evidence to support the Level 4 felony enhancement. …
The agent testified that the CI arranged for her to purchase approximately one gram of heroin for $200 from Losson, a suspected dealer in the area. The agent then described the drug deal that led to the charges in this case. During cross-examination, the agent was asked if she believed that Losson packaged the heroin, and she replied in the affirmative.
Agent Schumacher’s testimony is too speculative to prove beyond a reasonable doubt that Losson packaged the heroin that was sold in this case. We agree with the State that it is likely that he did package a larger amount of heroin into smaller baggies. But the mere likelihood that he did so based on common practices of drug dealers is not sufficient evidence to prove beyond a reasonable doubt that Losson packaged the heroin.
Importantly, even if the agent’s testimony was sufficient to prove that Losson packaged the heroin, there is no evidence that Losson packaged the heroin in Hall’s presence or that Hall had any knowledge of its packaging. The accomplice liability statute provides that “[a] person who knowingly or intentionally aids, induces, or causes another person to commit an offense” commits that offense. Ind. Code § 35-41-2-4. When we evaluate a defendant’s culpability as an accomplice, we consider the defendant’s: (1) presence at the crime scene; (2) companionship with another at the crime scene; (3) failure to oppose the commission of the crime; and (4) course of conduct before, during, and after the commission of the crime. Griffin v. State, 16 N.E.3d 997, 1004 (Ind. Ct. App. 2014).
Here, there was no evidence that Hall had any knowledge of how or when Losson packaged the heroin. There was no evidence that Losson had scales or baggies in Hall’s presence or in the vehicle. The State only proved that Hall knew that Losson was dealing heroin to Agent Schumacher, and Hall was present during the crime and assisted Losson. This evidence is sufficient to support a Level 5 felony dealing conviction, but not the Level 4 felony dealing conviction requiring additional proof of manufacturing.
For all of these reasons, we conclude that the evidence is insufficient to support Hall’s Level 4 felony dealing conviction. We reverse her conviction and remand this case to the trial court with instructions to vacate Hall’s Level 4 felony conviction, enter a judgment of conviction for Level 5 felony dealing and resentence Hall accordingly.
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Reversed and remanded for proceedings consistent with this opinion.
Pyle, J., and Altice, J., concur.