Court of Appeals of Indiana | Memorandum Decision 79A05-1612-CR-2851 | August 7, 2017 Page 1 of 7

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

Brian A. Karle

Ball Eggleston, P.C.

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Monika P. Talbot

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Mitchell R. Fontaine,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

August 7, 2017

Court of Appeals Case No.

79A05-1612-CR-2851

Appeal from the Tippecanoe 

Superior Court.

The Honorable Laura W. Zeman, 

Judge.

Trial Court Cause No. 

79D04-1607-F6-625

Shepard, Senior Judge

[1] Appellant Mitchell R. Fontaine was found guilty of possession of paraphernalia 

with intent to introduce a controlled substance into his body,

1

among other 

 

1

Ind. Code § 35-48-4-8.3(b)(1) (2015).
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charges. Concluding the evidence was sufficient to support Fontaine’s 

conviction of possession of paraphernalia, we affirm it. On the other hand, his 

sentence is longer than the law permits. We therefore reverse his sentence and 

remand so that the trial court can fashion a new sentence.

Facts and Procedural History

[2] Fontaine and fourteen-year-old A.H. were found by sheriff’s deputies asleep in 

a vehicle at the end of a dead-end road. In A.H.’s purse were marijuana and a 

metal pipe, both of which A.H. admitted belonged to her. Her purse also 

contained pills and a bag containing drug paraphernalia, all of which Fontaine

had asked her to hold for him.

[3] Based upon this incident, Fontaine was charged with maintaining a common 

nuisance, a Level 6 felony;

2

possession of a controlled substance, a Level 6 

felony;3possession of paraphernalia, a Class A misdemeanor; and contributing 

to the delinquency of a minor, a Class A misdemeanor.4A jury found Fontaine 

guilty as charged, and the court sentenced him to an aggregate sentence of six 

years.

 

2

Ind. Code § 35-45-1-5(c) (2016).

3

Ind. Code § 35-48-4-7(a) (2014).

4

Ind. Code § 35-46-1-8(a) (2014).
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Discussion and Decision

I. Sufficiency of the Evidence

[4] Fontaine challenges the sufficiency of the evidence about his conviction for 

possession of paraphernalia. In reviewing such challenges, we neither reweigh 

the evidence nor judge the credibility of the witnesses. Sandleben v. State, 29 

N.E.3d 126 (Ind. Ct. App. 2015), trans. denied. Instead, we consider only the 

evidence most favorable to the verdict and any reasonable inferences drawn 

therefrom. Id. If there is substantial evidence of probative value from which a 

reasonable fact-finder could have found the defendant guilty beyond a 

reasonable doubt, the verdict will not be disturbed. Labarr v. State, 36 N.E.3d 

501 (Ind. Ct. App. 2015).

[5] To convict Fontaine of possession of paraphernalia, the State must have proved

beyond a reasonable doubt that (1) Fontaine knowingly or intentionally (2) 

possessed an instrument, a device, or another object (3) that he intended to use 

for introducing a controlled substance into his body. See Ind. Code § 35-48-4-

8.3(b)(1). Fontaine challenges the evidence about his intent to introduce a 

controlled substance into his body.

[6] Fontaine cites Taylor v. State, 256 Ind. 170, 267 N.E.2d 383 (1971), Bradley v. 

State, 153 Ind. App. 421, 287 N.E.2d 759 (1972), and Sluder v. State, 997 N.E.2d 

1178 (Ind. Ct. App. 2013). In Taylor, a search of the defendant’s purse revealed 

a hypodermic type needle, an eye dropper covered with an unknown sticky 

substance, a bottle cap that had been burned on the bottom, and an empty 
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Excedrin bottle. Noting there was no evidence of flight or other behavior 

indicating consciousness of guilt, previous convictions related to narcotic drug 

use, or current narcotics use by the defendant, our Supreme Court held the

evidence was insufficient to show intent to administer narcotic drugs.

[7] The defendant in Bradley argued the State’s evidence showed only that he 

possessed instruments adapted for the injection of narcotics into the body 

without proof of his intent to do so. Bradley initially fled from police and, in 

doing so, threw an object to the ground. In the discarded object, police found 

an eye dropper with a needle attached. A search of Bradley produced a bottle 

cap with burns on the bottom. This Court reversed, saying that Bradley’s flight, 

possession of the adapted instruments, and attempted concealment were no 

more than consciousness of guilt or a suspicious circumstance. 

[8] Fontaine also relies on Sluder, a more recent decision in which we reversed for 

lack of evidence of intent to use the syringe found in his back pocket to 

introduce a controlled substance into his body. The panel stated that although 

intent to introduce a controlled substance may be inferred from circumstantial 

evidence – – like track marks on the defendant’s arms, past drug use, previous 

drug convictions, or the presence of drugs – – the State had presented no such 

evidence.

[9] Here, A.H. testified that Fontaine gave her his pills and told her to keep them in 

her purse. He also gave her a bag that contained lighters, a spoon, hypodermic 

needles, razor blades, and a belt. One of the officers testified that, based on his 
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training and experience, a spoon and lighters are used to cook drugs, the belt is 

used as a tourniquet on the arm to restrict the blood flow and make it easier to 

see the veins, and needles are used for injecting drugs into the veins. The officer 

also testified that Fontaine identified the pills as being Klonopin, a brand name 

for the generic drug clonazepam. In addition, the parties entered an Agreed 

Stipulation at trial showing that the pills tested positive as clonazepam, a 

controlled substance. Another officer testified at trial that when A.H. was being 

questioned about the items in the bag Fontaine had given her, Fontaine 

commented, “I thought you guys couldn’t search juveniles.” Tr. p. 92. 

[10] In Perkins v. State, 57 N.E.3d 861 (Ind. Ct. App. 2016), the defendant was found 

to have syringe needles and a bottle cap containing heroin residue hidden in a 

cigarette pack. He fled from officers and, when apprehended, stated, “[I]t’s not 

mine, it’s not mine.” Id. at 863. A panel of this Court determined that the 

evidence of intent, consisting of possession of narcotics and instruments with 

which to introduce a controlled substance into his body, was sufficient to 

sustain Perkins’ conviction. The Court also held that his flight and statement to 

police were evidence of consciousness of guilt.

[11] The assemblage of facts in this case pointing toward intent to inject are, if 

anything, more comprehensive than those in Perkins, and much more 

compelling than the evidence in Taylor, Bradley, and Sluder. Fontaine had in his 

possession instruments used to introduce drugs into the body as well as a 

controlled substance. Whereas Perkins had merely residue, a trace amount of 

narcotics, Fontaine had the actual controlled substance contained in the pills. 
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He also had needles, lighters, a spoon, and a belt — everything needed to cook 

the drugs and introduce them into the body. In addition, the State presented 

clear evidence of Fontaine’s consciousness of guilt in his attempt to conceal 

both the paraphernalia and the drugs with A.H. because he believed the police 

could not search juveniles.

II. Sentence

[12] Fontaine also argues that his aggregate six-year sentence violates Indiana Code 

section 35-50-1-2 (2016), which provides, in pertinent part:

(b) As used in this section, “episode of criminal conduct” means 

offenses or a connected series of offenses that are closely related 

in time, place, and circumstance.

. . . 

(d) Except [in circumstances not relevant here], the total of the 

consecutive terms of imprisonment to which the defendant is 

sentenced for felony convictions arising out of an episode of 

criminal conduct may not exceed the following:

(1) If the most serious crime for which the defendant is 

sentenced is a Level 6 felony, the total of the consecutive terms of 

imprisonment may not exceed four (4) years.

[13] Fontaine was sentenced to two years on each of his two Level 6 felony 

convictions and to one year on each of his two Class A misdemeanor

convictions, all of which the court ordered to be served consecutively for an 

aggregate sentence of six years. As this statute applies to consecutive sentences 

that involve misdemeanor convictions as well as sentences that include 

suspended time in the calculation, Fontaine’s sentence violates the limits in

Indiana Code section 35-50-1-2(d). See Purdy v. State, 727 N.E.2d 1091 (Ind. Ct. 
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App. 2000) (determining that consecutive sentencing limitation applies to 

misdemeanors), trans. denied; Mask v. State, 829 N.E.2d 932 (Ind. 2005) (holding 

that period of suspended sentence must be included when calculating maximum 

aggregate sentence under section 35-50-1-2).

Conclusion

[14] For the reasons stated, we conclude the State presented evidence sufficient to 

support Fontaine’s conviction of possession of paraphernalia. We further 

conclude that Fontaine’s sentence violates Indiana Code section 35-50-1-

2(d)(1).

[15] Affirmed in part, and reversed and remanded in part with instructions to 

resentence Fontaine within the statutory limits.

Baker, J., and Altice, J., concur.