Court of Appeals of Indiana | Memorandum Decision 39A04-1504-CR-156 | December 7, 2015 Page 1 of 11

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

James C. Spencer

Dattilo Law Office

Madison, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

James B. Martin

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Bruce Ashby,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

December 7, 2015

Court of Appeals Case No.

39A04-1504-CR-156

Appeal from the Jefferson Superior 

Court

The Honorable Michael J. 

Hensley, Judge

Trial Court Cause No.

39D01-1306-FD-542

Robb, Judge.
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Case Summary and Issue

[1] Following a jury trial, Bruce Ashby was convicted of possession of a controlled 

substance as a Class D felony. Ashby appeals, raising four issues for our 

review, one of which we find dispositive: whether the State presented sufficient 

evidence to support his conviction. Concluding the evidence was insufficient, 

we reverse and remand.

Facts and Procedural History

[2] On May 24, 2013, officers of the Madison Police Department went to Ashby’s 

residence to execute an arrest warrant for Perry Gammons. The officers had 

received information that Gammons was staying with Ashby. Ashby told the 

officers he did not know Gammons and invited the officers inside “to take a 

look for [them]selves.” Transcript at 26. While inside Ashby’s residence, the 

officers observed a cellophane wrapper that contained a white powdery residue. 

The wrapper was in plain view on a coffee table in the living room. The officers 

asked Ashby if the wrapper contained methamphetamine. Ashby said it was 

“crushed Lortab,” not methamphetamine, and admitted he did not have a 

prescription for Lortab. Id. at 27.

[3] The officers seized the wrapper but did not arrest Ashby at that time. Several

weeks later, Ashby was arrested and charged with possession of a controlled 

substance as a Class D felony. The charging information alleged, 
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On or about May 24, 2013, Bruce Ashby, knowingly or 

intentionally, without a valid prescription or order of a 

practitioner acting in his/her professional practice, possessed a 

controlled substance classified under schedule II under IC 35-48, 

that is: Lortab.

Appendix of Appellant at 11. Lortab, a brand name prescription drug

containing hydrocodone and acetaminophen, is not listed, by that name, in any 

schedule in the Indiana Code. See Tr. at 57; Drug Enforcement Administration, 

Hydrocodone (Oct. 2014), http://www.deadiversion.usdoj.gov/drug_chem_

info/hydrocodone.pdf. 

[4] At the time of Ashby’s arrest, the identity of the white powdery residue had not 

been confirmed by forensic testing. The Madison Police Department sent the 

wrapper to the Indiana State Police Laboratory for testing in August 2013. 

Forensic scientist Brandy Cline conducted the analysis. According to her

Certificate of Analysis dated October 9, 2013, the wrapper contained 

“Dihydrocodeinone (Hydrocodone), a controlled substance,” as well as 

“Acetaminophen, a non-controlled substance.” State’s Exhibit 4. Cline was 

unable to determine the weight of the residue because the laboratory’s scale 

cannot detect a measurement that is less 0.01 grams.

[5] A jury trial was held in February 2015. On the first day of trial, between jury 

selection and opening statements, the State moved to amend the charging 

information. After speaking with Cline that morning, the State realized Cline 

could not testify the white powdery residue was Lortab “because it was in a 
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crushed form, so . . . there’s no markings.” Tr. at 13. In addition, the State 

explained, 

Hydrocodone is a Schedule II controlled substance, however, . . . 

I just learned from the chemist that because it has some 

acetaminophen in it, that probably puts it in Schedule III. . . . [I]t 

was charged as a Schedule II, and again, it is a Schedule II if it’s 

just hydrocodone, but because of the acetaminophen, it changes 

the character. 

Id. at 4-5. 

[6] Prior to ruling on the State’s motion, the trial court heard testimony from Cline

outside the presence of the jury:

Q. [B]ased upon your analysis . . . your conclusion would be 

that it is a Schedule III substance as opposed to a Schedule II 

substance[?] . . . 

A. My understanding of the criminal code is that hydrocodone is 

listed as a Schedule II substance, but dihydrocodone [sic] or 

hydrocodone which it’s also known, mixed with a amount [sic] 

of a non-narcotic, which would include acetaminophen, is a 

Schedule III.

* * *

Q. So what amount does it require to become . . . I mean in 

terms of proportion, is it required to become a Schedule III? 

A. I don’t know the amount off the top of my head. I just know 

when we deal with whole tablets that contain the mixture, they 

are a Schedule III in the State of Indiana. . . .
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Q. So in your opinion, based upon what evidence you have, it’s 

a Schedule III, or is it? 

A. I guess I do not know whether it is a Schedule II or a 

Schedule III . . . . [L]ike I said the Schedule III is a certain 

amount of acetaminophen mixed with hydrocodone, I believe. I 

do not know that amount so I could not say for sure.

Id. at 7, 10. 

[7] At the conclusion of Cline’s testimony, the State requested the charging 

information be amended to allege Ashby possessed a controlled substance 

“classified as a Schedule II or III.” Id. at 13. The trial court granted the State’s 

motion to amend the charging information, and the trial commenced. The jury 

found Ashby guilty of “Possession of a Controlled Substance Classified Under 

Schedule II or III Under I.C. 35-48, a Class D Felony.” App. of Appellant at 

116 (Verdict Form).1 This appeal followed. 

Discussion and Decision

I. Standard of Review

[8] When reviewing the sufficiency of the evidence to support a conviction, we 

consider only the probative evidence and reasonable inferences supporting the 

 

1 The jury instructions stated the term “controlled substance” refers to a substance identified in Schedule I, II, 

III, IV, or V, and that hydrocodone is classified as a Schedule II controlled substance. App. of Appellant at 

114-15. The jury instructions did not reference which Schedule III controlled substance Ashby was alleged to 

have possessed. 
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verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We neither reweigh 

the evidence nor assess the credibility of witnesses. Id. Unless no reasonable 

fact-finder could conclude the elements of the crime were proven beyond a 

reasonable doubt, we will affirm the conviction. Id.

II. Possession of a Controlled Substance

[9] A conviction must be reversed if the State failed to prove an essential element of 

the offense. Porod v. State, 878 N.E.2d 415, 417 (Ind. Ct. App. 2007). With 

respect to offenses involving controlled substances, the State must prove, as an 

essential element, the substance falls within a particular statutory provision. 

Barnett v. State, 579 N.E.2d 84, 86 (Ind. Ct. App. 1991) (citing White v. State, 161 

Ind. App. 568, 571, 316 N.E.2d 699, 701 (1974)), trans. denied. If, during trial, 

the substance is identified by a name specifically designated a controlled 

substance in the Indiana Code, the State has proven, as a matter of law, the 

substance is a controlled substance. Id. If the substance is identified by a name

that is not specifically designated a controlled substance, such as Lortab, the 

State must offer extrinsic evidence concerning the substance’s chemical 

properties to prove the substance falls within the Indiana Code’s definition of a 

controlled substance. Id. 

[10] Here, Ashby was convicted of possession of a “Schedule II or III” controlled 

substance. Indiana Code section 35-48-4-7(a) (2011) provides,

A person who, without a valid prescription or order of a 

practitioner acting in the course of the practitioner’s professional 

practice, knowingly or intentionally possesses a controlled 
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substance (pure or adulterated) classified in schedule I, II, III, or 

IV, except marijuana, hashish, salvia, or a synthetic cannabinoid, 

commits possession of a controlled substance, a Class D felony.

[11] In Indiana, hydrocodone is a Schedule II controlled substance:

(b) Any of the following substances, except those narcotic drugs 

listed in other schedules [are included in Schedule II]:

 (1) Opium and opiate, and any salt, compound, derivative, 

 or preparation of opium or opiate . . . including:

 * * *

 (K) hydrocodone . . . .

Ind. Code § 35-48-2-6(b)(1)(K) (2008). But when combined with a certain 

quantity of a nonnarcotic, hydrocodone (also known as dihydrocodeinone) is a 

Schedule III controlled substance. Indiana Code section 35-48-2-8 (2008) 

provides,

(e) Narcotic Drugs. Unless specifically excepted or unless listed 

in another schedule, any material, compound, mixture, or 

preparation containing any of the following narcotic drugs . . . in 

the following limited quantities [are included in Schedule III]: 

* * *

 (4) Not more than 300 milligrams of dihydrocodeinone, per 

 100 milliliters or not more than 15 milligrams per dosage 

 unit, with one (1) or more active nonnarcotic ingredients in 

 recognized therapeutic amounts . . . .

* * *

(g) The board[2]shall except by rule any compound, mixture, or 

preparation containing any stimulant or depressant substance 

 

2 The “board” refers to the Indiana Board of Pharmacy. Ind. Code § 35-48-1-6. 
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listed in subsections (b) through (e) from the application of any 

part of this article if the compound, mixture, or preparation 

contains one (1) or more active medicinal ingredients not having 

a stimulant or depressant effect on the central nervous system, 

and if the admixtures are included therein in combinations, 

quantity, proportion, or concentration that vitiate the potential 

for abuse of the substances which have a stimulant or depressant 

effect on the central nervous system.

[12] During trial, Cline testified the wrapper “was found to contain 

dihydrocodonone [sic] or hydrocodone, a controlled substance” and that 

“[e]xamination also indicated the presence of acetaminophen a non-controlled 

substance.” Tr. at 55. Cline also stated she was unable to determine the weight 

of the residue because the laboratory’s scale cannot detect a measurement that 

is less than 0.01 grams. The only testimony regarding the amount of the 

hydrocodone versus acetaminophen was Cline agreeing there was relatively 

more acetaminophen in the sample.3 The State presented no evidence on 

whether the acetaminophen in the sample was in a “recognized therapeutic 

amount[].” Ind. Code § 35-48-2-8(e)(4) (2008). 

[13] Ashby argues the evidence was insufficient to support his conviction because 

the State failed to prove an essential element of the offense. He contends the 

 

3 The instrument Cline uses to analyze samples provides the “relative abundance” of each substance. Tr. at 

59. Prior to trial, during the hearing on the State’s motion to amend the charging information, Cline stated 

she could not determine the exact quantities of hydrocodone and acetaminophen in the residue. Cline 

explained, “[A]t our lab we cannot quantitate to tell you exactly how much acetaminophen versus how much 

hydrocodone there is.” Id. at 11. Cline “would not feel comfortable saying the exact ratio” of hydrocodone 

to acetaminophen, but she agreed “there is more acetaminophen than there is hydrocodone.” Id.
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State was required to prove the residue was a Schedule II or Schedule III 

controlled substance. We addressed a similar set of facts in Barnett, 579 N.E.2d 

84, a case in which the defendant was convicted of possession of a Schedule III 

controlled substance with intent to deliver. Police executed a search warrant at 

Barnett’s house and seized nine white tablets that later tested positive for 

codeine and acetaminophen. Codeine is a Schedule II controlled substance. 

Ind. Code § 35-48-2-6(b)(1)(G). But similar to hydrocodone, when combined 

with a certain quantity of a nonnarcotic, codeine is a Schedule III controlled 

substance. Ind. Code § 35-48-2-8(e)(2) (providing a mixture of “not more than 

90 milligrams [of codeine] per dosage unit, with one (1) or more active, 

nonnarcotic ingredients in recognized therapeutic amounts” is a Schedule III 

controlled substance). At trial, a chemist from the Indiana State Police 

Laboratory testified the tablets contained “Codeine, which is a controlled 

substance, and also present was a drug called Acetaminophen, which is not a 

controlled substance.” Barnett, 579 N.E.2d at 87.

[14] We reversed Barnett’s conviction for possession of a Schedule III controlled 

substance with intent to deliver because no testimony was given regarding the 

quantity of codeine present in each tablet or whether the codeine was mixed 

with a nonnarcotic in a “recognized therapeutic amount[]” as required by 

Indiana Code section 35-48-2-8(e)(2). Id. We held the State’s failure to prove 

the tablets contained a mixture of codeine and acetaminophen classified by the 

Indiana Code as a Schedule III controlled substance “constitutes failure to 

prove an essential element of the offense.” Id. In doing so, we noted the State 
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could not meet its evidentiary burden by relying on the chemist’s opinion as to 

whether the tablets were a Schedule III controlled substance; additional 

extrinsic evidence regarding the quantity of codeine by weight and the chemical 

properties of the mixture was required.4 In addition, we disagreed with the 

chemist’s “blanket classification” of codeine with acetaminophen as a Schedule 

III controlled substance, id., citing the provision of the statute permitting an 

exception for any mixture containing a narcotic drug and one or more 

nonnarcotic medicinal ingredients, provided the nonnarcotic is included in a 

quantity or proportion that “vitiate[s] the potential for abuse” of the narcotic 

drug. See Ind. Code § 35-48-2-8(f) (1987); accord Ind. Code § 35-48-2-8(g) 

(2008). 

[15] In the present case, the chemist’s testimony was similarly lacking. Cline stated 

the residue contained hydrocodone and acetaminophen, with relatively more 

acetaminophen, but she was unable to offer further detail regarding the 

composition of the mixture.5 As in Barnett, we conclude the State failed to 

prove an essential element of the offense. The evidence was insufficient to 

 

4 A chemist’s role in a case such as this is not to offer testimony on which schedule, if any, a particular 

substance belongs. That is a legal conclusion. See Ind. Evidence Rule 704(b); Kelly v. Levandoski, 825 N.E.2d 

850, 864 (Ind. Ct. App. 2005), trans. denied. The chemist’s role, as an expert witness, is to identify the 

substance by its name or chemical properties. The burden is on the State to ensure the testimony proves the 

substance falls within a particular statutory provision. See Barnett, 579 N.E.2d at 86. 

5 We acknowledge this issue arises in large part because the tablets in this case had been crushed. When 

prescription drugs are found in an unaltered state, with distinguishing markings, their identities can typically

be proven by circumstantial evidence rather than chemical analysis. See Boggs v. State, 928 N.E.2d 855, 865-

66 (Ind. Ct. App. 2010) (stating the detective identified pills as a decongestant containing pseudoephedrine 

based on “the marking ‘L054,’ which appears on the Equate brand of decongestant”), trans. denied. 
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support Ashby’s conviction for possession of controlled substance as a Class D 

felony. 

Conclusion

[16] The evidence in this case fell short of what our legislature has required to 

sustain a conviction for possession of a controlled substance. We therefore 

reverse and remand with instructions that Ashby’s conviction be vacated. 

[17] Reversed and remanded.

Vaidik, C.J., and Pyle, J., concur.