Court of Appeals of Indiana | Opinion 19A-CR-203 | December 5, 2019 Page 1 of 11

ATTORNEY FOR APPELLANT

Ryan D. Bower

Bower Law Office, LLC

New Albany, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Samuel J. Dayton

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jennifer L. Hall,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 5, 2019

Court of Appeals Case No.

19A-CR-203

Appeal from the Washington 

Superior Court

The Honorable Frank Newkirk, 

Jr., Judge

Trial Court Cause No.

88D01-1802-F4-173

Mathias, Judge.

[1] 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 
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evidence of her prior criminal history and drug use in violation of Evidence 

Rule 404(b).

[2] 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.

Facts and Procedural History

[3] On October 12, 2017, Special Agent Kristi Schumacher (“Agent Schumacher”)1

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.

[4] 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.

[5] 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 

 

1 Agent Schumacher was an Indiana State Trooper on the date of the controlled buy.
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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.” Tr. p. 64. Losson replied, “oh yeah,” and Hall 

looked at the agent and shook her head yes. Id. The CI then asked Losson if she 

could buy “go go,” i.e. methamphetamine, and Losson replied that he was 

working on that. Id. The substance in the baggie was later confirmed to be .28 

gram of heroin.

[6] 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. 

[7] A two-day jury trial commenced on October 16, 2018. Agent Schumacher and 

Hall were the only witnesses at trial. Both Hall’s counsel and the State elicited 

testimony concerning her prior criminal convictions and her history of drug use. 

[8] The jury was given an accomplice liability instruction, and in addition to an 

instruction on the Level 4 felony offense, the jury was instructed that it could 

find Hall guilty of the lesser-included Level 5 felony offense. Tr. pp. 140, 142. 

Hall was found guilty of the Level 4 felony as charged. On December 26, 2018, 
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the trial court ordered her to serve six years in the Department of Correction. 

Hall appeals her conviction.2

I. Sufficient Evidence of Manufacturing

[9] 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[.]” I.C. 35-48-4-1(c)(2). 

[10] Enhancing circumstances are defined in Indiana Code section 35-48-1-16.5 and 

include that “the person manufactured or financed the manufacture of the 

drug.” And “manufacture” means, 

(1) For offenses not involving marijuana, hashish, or hash oil:

(A) the production, preparation, propagation, 

compounding, conversion, or processing of a controlled 

substance, either directly or indirectly by extraction from 

substances of natural origin, independently by means of 

chemical synthesis, or by a combination of extraction and 

chemical synthesis, and includes any packaging or repackaging 

of the substance or labeling or relabeling of its container. It does 

 

2 We held oral argument in this case at Hamilton Southeastern High School in Fishers, Indiana, on 

November 25, 2019. We extend our gratitude to the students, faculty, and staff for their hospitality. We 

would like to specially acknowledge Mary Armstrong and Janet Chandler for their kind assistance. We also 

thank the attorneys for the quality of their written and oral advocacy.
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not include the preparation, compounding, packaging, or 

labeling of a controlled substance:

(i) by a practitioner as an incident to administering 

or dispensing of a controlled substance in the course 

of a professional practice; or

(ii) by a practitioner, or by the practitioner's 

authorized agent under the practitioner's 

supervision, for the purpose of, or as an incident to, 

research, teaching, or chemical analysis and not for 

sale; or

(B) the organizing or supervising of an activity described in

clause (A).

Ind. Code § 35-48-1-18(1) (emphasis added).

[11] Here, the State charged Hall as follows: 

on or about the 12th day of October, 2017, . . . Hall did then and 

there knowingly or intentionally aid, induce or cause JOHN J. 

LOSSON . . . in the commission of the offense of DEALING IN 

A NARCOTIC DRUG where the amount of the drug involved is 

less than one (1) gram and John J. Losson manufactured the drug 

by packaging, by participating in a hand to hand buy of heroin 

between John J. Losson and an undercover officer wherein 

Jennifer L. Hall was the front passenger in a vehicle driven by 

John J. Losson; Jennifer L. Hall received the suspected heroin 

from John J. Losson, accepted the pre-recorded enforcement aid 

money from the undercover officer, and handed said undercover 

officer the suspected heroin[.]

Appellant’s App. p. 17.
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[12] 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. 

[13] 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 in her “training and 

experience and working as an undercover officer in southern Indiana,” dealers 

typically sell small amounts of the drug in “either a cut off corner baggies [sic] 

or small Ziploc baggies.” Tr. p. 58. Dealers generally “buy what they can 

afford, usually an eight (8) ball, which is around, it’s approximately three point 

five (3.5) grams. They’ll take that back to their home or where ever they cut it, 

and then they divvy that up into the corner baggies, smaller packages and then 

push that out into the community.” Tr. p. 59.

[14] 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 crossexamination, the agent was asked if she believed that Losson packaged the 

heroin, and she replied in the affirmative. Tr. p. 76. 

[15] 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 
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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.

[16] 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).

[17] 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. See I.C. §§ 35-48-4-1,

35-48-1-16.5.
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[18] 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.3

II. Evidence of Hall’s Prior Criminal History and Drug Use

[19] Hall also argues that her conviction should be reversed because the trial court 

admitted evidence of unrelated bad acts that prejudiced Hall and subjected her 

to grave peril. Initially, we observe that Indiana Evidence Rule 404(b) generally 

prohibits “[e]vidence of a crime, wrong, or other act . . . to prove a person’s 

character in order to show that on a particular occasion the person acted in 

accordance with the character.” But such evidence “may be admissible for 

another purpose, such as proving motive, opportunity, intent, preparation, plan, 

knowledge, identity, absence of mistake, or lack of accident.” Id. Moreover, 

Evidence Rule 404(b) is designed to prevent the jury from 

making the “forbidden inference” that prior wrongful conduct 

suggests present guilt. . . . [T]he purpose behind Evidence Rule 

404(b) is to prevent[ ] the State from punishing people for their 

character, and evidence of extrinsic offenses poses the danger 

that the jury will convict the defendant because ... he has a 

tendency to commit other crimes. In assessing the admissibility 

of evidence under Evidence Rule 404(b), the trial court must first 

determine that the evidence of other crimes, wrongs, or acts is 

 

3 Because we reverse Hall’s Level 4 felony dealing conviction, we need not address her argument that the 

manufacturing statute is unconstitutionally vague and overbroad.
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relevant to a matter at issue other than the defendant's propensity 

to commit the charged act, and then balance the probative value 

of the evidence against its prejudicial effect pursuant to Evidence 

Rule 403. The effect of Rule 404(b) is that evidence is excluded 

only when it is introduced to prove the forbidden inference of 

demonstrating the defendant's propensity to commit the charged 

crime.

Laird v. State, 103 N.E.3d 1171, 1176–77 (Ind. Ct. App. 2018) (citations and 

internal quotation marks omitted), trans. denied.

[20] Hall mentions numerous instances wherein she claims evidence was admitted 

in violation of Evidence Rule 404(b). These include testimony that Hall’s 

deceased husband was a drug dealer who was shot and killed, that her two 

pregnancies resulted in still births, that she is addicted to methamphetamine, 

her association with drug dealers, her prior criminal history, and testimony that 

she lied in a prior plea hearing when she admitted to committing theft so that 

she could be released from jail. Importantly, Hall’s testimony concerning these 

prior acts was elicited during her direct examination. See Tr. pp. 83–85, 89–90.

[21] We agree with the State that Hall has invited the alleged error of which she now 

complains. A party may not take advantage of an error that she invites. 

Brewington v. State, 7 N.E.3d 946, 975 (Ind. 2014); see also Durden v. State, 99 

N.E.3d 645, 651 (Ind. 2018) (stating that invited error forbids a party from 

“taking advantage of an error that she commits, invites, or which is the natural 

consequence of her own neglect or misconduct”). And “[i]nvited error 

precludes relief from counsel’s strategic decisions gone awry.” Brewington, 7 
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N.E.3d at 975. See also Batchelor v. State, 119 N.E.3d 550, 558 (Ind. 2019)

(noting care must be taken to ensure the record demonstrates “the error resulted 

from the appellant's affirmative actions as part of a deliberate, well-informed 

trial strategy”) (internal quotation omitted).

[22] Hall also challenges testimony that the State elicited without objection on crossexamination. During questioning relating to Hall’s prior drug use and how 

often she purchased drugs, the State asked her who her dealer was. Hall refused 

to give the State his name. The State repeatedly asked Hall for the name of her 

dealer and used Hall’s refusal to name the person to attack her credibility.

[23] Because Hall’s counsel failed to object to the State’s questions, Hall must 

establish fundamental error. “An error is fundamental . . . if it ‘made a fair trial 

impossible or constituted a clearly blatant violation of basic and elementary 

principles of due process presenting an undeniable and substantial potential for 

harm.’” Durden, 99 N.E.3d at 652 (quoting Knapp v. State, 9 N.E.3d 1274, 1281 

(Ind. 2014)). “These errors create an exception to the general rule that a party’s 

failure to object at trial results in a waiver of the issue on appeal.” Durden, 99 

N.E.3d at 652 (citing Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002)). The 

exception is very narrow and “encompasses only errors so blatant that the trial 

judge should have acted independently to correct the situation.” Id.

[24] Because Hall testified extensively concerning her prior drug use and criminal 

history, we cannot conclude that admission of the challenged evidence 

constitutes fundamental error. Moreover, the evidence overwhelmingly
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establishes that Hall committed Level 5 dealing, a conclusion that Hall does not 

challenge on appeal. See Halliburton v. State, 1 N.E.3d 670, 683 n.7 (Ind. 2013)

(“Where evidence of guilt is overwhelming any error in the admission of 

evidence is not fundamental.”).

Conclusion 

[25] The evidence is insufficient to support Hall’s Level 4 felony dealing conviction 

because the State failed to prove an enhancing circumstance as required by 

Indiana Code section 35-48-4-1(c)(2). We therefore reverse Hall’s Level 4 felony 

conviction and remand this case to the trial court with instructions to enter a 

judgment of conviction for Level 5 felony dealing and resentence Hall 

accordingly.

[26] Reversed and remanded for proceedings consistent with this opinion.

Pyle, J., and Altice, J., concur.