COA reverses narcotic conviction for insufficient evidence

The Indiana Court of Appeals has vacated a man’s felony conviction for possessing a narcotic, agreeing with both the defendant and the state that the substance found in the man’s possession was not actually a narcotic.

In Nathan Sutton v. State of Indiana, 20A-CR-2213, Southport Police Officer William Robertson found Nathan Sutton walking on active railroad tracks in December 2020. Sutton had bloodshot eyes, smelled like alcohol and was unsteady, so Robertson arrested him for public intoxication.

At the police station, Robertson found pills later identified as Lisdexamfetamine, a controlled substance, in Sutton’s backpack. He was thus charged with Level 6 felony possession of a narcotic and Class B misdemeanor public intoxication, but the misdemeanor was later dismissed. Sutton was found guilty of the felony and sentenced to 364 days with credit for time served.

On appeal, Sutton argued the evidence was insufficient to support his conviction. Indiana Court of Appeals Chief Judge Cale Bradford noted the drug Lisdexamfetamine is not included in Indiana Code § 35-48-2-6(b), which identifies narcotics that qualify as controlled substances, but rather is in I.C. 35-48-2-6(d), which identifies stimulants that qualify as controlled substances.

“Sutton argues, and the State concedes, that Lisdexamfetamine is a stimulant, not a narcotic. As such, they agree that the evidence is insufficient to prove that Sutton knowingly or intentionally possessed a narcotic drug,” Bradford wrote in a Friday opinion. “The State further concedes that ‘under these circumstances, the State agrees that Sutton’s conviction should be vacated.’ … We agree and therefore reverse the judgment of the trial court and vacate Sutton’s conviction for Level 6 felony possession of a narcotic drug.”

In a footnote, the panel observed, “The State acknowledges that ‘Sutton raised this as a defense at trial, thereby alerting the State and the trial court to the problem; however, neither the trial court nor the State moved to amend the charging information at that time or enter judgment of conviction for the lesser offense of possession of a controlled substance, which was the crime actually committed by Sutton.’”

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