Court of Appeals of Indiana | Memorandum Decision 49A05-1708-JV-1797 | January 23, 2018 Page 1 of 9

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

Elizabeth A. Houdek

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Matthew B. Mackenzie

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

D.G.,

Appellant-Respondent,

v.

State of Indiana,

Appellee-Petitioner.

January 23, 2018

Court of Appeals Case No.

49A05-1708-JV-1797

Appeal from the

Marion Superior Court

The Honorable

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.
Court of Appeals of Indiana | Memorandum Decision 49A05-1708-JV-1797 | January 23, 2018 Page 7 of 9

I N T H E

COURT OF APPEALS OF INDIANA

D.G.,

Appellant-Respondent,

v.

State of Indiana,

Appellee-Petitioner.

Court of Appeals Case No.

49A05-1708-JV-1797

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.