Riley, Judge.

Attorneys for Appellant: Joe K. Lewis, Bridget N. Foust, Marion, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Megan M. Smith, Deputy Attorney General, Indianapolis, Indiana

Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Defendant, Benjamin Veach (Veach), appeals his conviction for dealing in a controlled substance resulting in death, a Level 1 felony, Ind. Code § 35-42-1-1.5(a).

[2] We affirm.

ISSUES

[3] Veach presents this court with three issues, which we restate as:

(1) Whether the State proved the offense beyond a reasonable doubt;

(2) Whether the trial court erred in denying Veach's motion for judgment on the evidence; and

(3) Whether the trial court abused its discretion in instructing the jury.

FACTS AND PROCEDURAL HISTORY

[4] In the fall of 2020, Juan Esquival (Esquival) and his girlfriend, Rylee Bradley (Bradley), lived together at a home on Oak Street in Huntington, Indiana. On October 29, 2020, Esquival worked from 3:00 p.m. to 9:00 p.m., while Bradley worked an overnight shift from 5:00 p.m. to 5:00 a.m. After Esquival finished work that evening, he arranged to meet Veach at a J.J.’s gas station on Huntington's west side. The gas station's surveillance cameras recorded Veach's and Esquival's cars arriving around 10:30 p.m. Esquival is seen getting into the passenger side of Veach's car, and Veach then pulled into a parking spot. Approximately forty seconds later, Esquival exited Veach's car, got back into his own car, and drove away. At 10:39 p.m., Esquival texted Veach, "this isn't a full point bubs:\" and "not fucked up about it, just a heads up. check yo scales[.]" (Exh. Vol. IV, p. 80). Veach replied, "Yes it is lol" and "Scrape the bag[.]" (Exh. Vol. IV, pp. 80-81). At 10:42 p.m., Esquival replied to Veach, "okay okay" and "lemme see what doctor juan had here[.]" (Exh. Vol. IV, p. 81). Esquival last used his cell phone to send an outgoing message at 1:19 a.m. on October 30, 2020. At around 5:30 a.m. on October 30, 2020, Bradley arrived home from work and discovered Esquival face down on the sofa, unresponsive. Bradley called 9-1-1. First responders, who immediately suspected a narcotics overdose, administered care, but Esquival was pronounced dead at the scene.

[5] Bradley consented to the search of the apartment. Officers found no drugs in the immediate vicinity of where Bradley told them she had discovered Esquival. While searching the bedroom of the home, investigators found Esquival's wallet on the dresser. Next to Esquival's wallet was a small baggie of the type known to be used in the packaging of illicit substances for sale. The baggie was stamped multiple times on both sides with a blue "#1" symbol, and the side seams of the baggie had been severed such that the baggie could be opened flat. A residue was visible on the surface of the inside of the baggie. Also on the dresser, behind a large upright jewelry box, officers found a second small baggie opened in a similar fashion as the first but bearing no symbols or visible residue. Due to its location and lack of residue, the officers concluded that the second baggie was old and not highly relevant to their investigation. The first baggie was collected for testing, but the second baggie was not. Esquival's autopsy revealed that he had died from Fentanyl toxicity.

[6] On November 9, 2020, Veach's cousin found what she considered to be drug-related items, including multiple packets of unused small baggies with various symbols stamped on them and a set of scales, in the bedroom of Veach's grandmother's home where Veach had been staying in October 2020. Veach's cousin turned the items over to the Huntington Police Department. An officer involved in the investigation of Esquival's death who saw the items immediately recognized a bag of unused baggies bearing multiple blue "#1" graphics as matching the baggie found next to Esquival's wallet. Toxicology tests revealed that Esquival had Fentanyl (76 ng/ml), Norfentanyl (4.5 ng/ml), and Acetyl Fentanyl (26 ng/ml) in his system at the time of his death. After obtaining the J.J.’s gas station surveillance video and further investigation, Veach was identified as a suspect in Esquival's death. Testing done on the baggie found next to Esquival's wallet "indicated the presence of Fentanyl, a controlled substance; however, this could not be confirmed due to insufficient sample concentration." (Exh. Vol. IV, p. 86).

[7] On December 23, 2020, the State filed an Information, charging Veach with Level 1 felony dealing in a controlled substance, Fentanyl, resulting in death. On March 21, 2022, the trial court granted the State's motion to amend the Information to add an allegation that Veach had dealt Fentanyl, a Schedule II controlled substance, and/or Acetyl Fentanyl, a Schedule I controlled substance, resulting in death.

[8] On March 22, 2022, the trial court convened Veach's three-day jury trial. The forensic toxicologist who tested Esquival's bodily fluids testified that Acetyl Fentanyl is another type of Fentanyl ; it is not a metabolite produced by the body when Fentanyl is metabolized in the body. According to the toxicologist, Acetyl Fentanyl is often added to Fentanyl, and Acetyl Fentanyl is not detected by itself, "at least for [the] last several years or so." (Transcript Vol. II, p. 181). Melinda McNair (McNair), the Indiana State Police forensic scientist who performed the testing on the residue from the baggie found next to Esquival's wallet, testified regarding the testing methods, results, and conclusions reflected in her report. McNair was required to have either a combination of one presumptive and one confirmatory test or a combination of two confirmatory tests in order to make a conclusive drug identification. She had performed three tests on the residue in this case: a color test, a thin layer chromatography (TLC) test, and Gas Chromatography /Mass Spectrometry (GC/MS). Color tests and TLC are presumptive tests, while GC/MS is a confirmatory test. While the color test had not resulted in a presumptive finding, the TLC test McNair performed on the residue provided a "positive indication for Fentanyl." (Tr. Vol. III, p. 76). McNair explained that the GC/MS testing entailed separating an unknown substance into its component parts and then fragmenting those component parts through ionization. Ionizing matter fragments it in predictable ways, called a "peak", and the unknown peak is then compared to a known peak, potentially producing an identification of the unknown substance. (Tr. Vol. III, p. 76). When McNair performed the GC/MS on the unknown residue from the baggie found next to Esquival's wallet, one peak showed "some similarities" with the known fragmentation pattern/peak of Acetal Fentanyl, but there was not enough of a match to confirm the presence of that drug in the unknown residue. (Tr. Vol. III, p. 79). Another peak produced by the residue, which showed a "charge ratio" of 146, when compared to the known peak for Fentanyl, which shows a charge ratio of 245, was missing some ions that would be present in Fentanyl. (Tr. Vol. III, p. 88). Despite these discrepancies, McNair had concluded that the GC/MS showed a "strong indication for Fentanyl [.]" (Tr. Vol. III, p. 82). In addition to running the TLC and GC/MS tests, McNair had run the unknown residue sample on TLC testing "directly against [the] Fentanyl reference material, and there was a spot that ... showed up for Fentanyl as well as the unknown sample, and they compared ... to be the same shape and color and came out of the glass plate in a similar place." (Tr. Vol. III, p. 82). All of this had led McNair to conclude that Fentanyl was indicated in the residue sample, meaning that there was data supporting the identification but that it was not conclusive. By contrast, McNair had only seen "possibly an indication" of Acetyl Fentanyl in the GC/MS results. (Tr. Vol. III, p. 82). On cross-examination, McNair was asked whether the 245 and 146 charge ratios represented a "significant difference" between the unknown residue and the known Fentanyl standard, to which McNair replied, "it is a difference, um, I don't know about significant, but it is something that is looked at." (Tr. Vol. III, p. 89).

[9] At the close of the State's case-in-chief, Veach moved for judgment on the evidence, arguing that there was insufficient evidence on the identification of Fentanyl or Acetyl Fentanyl in the residue on the baggie found next to Esquival's wallet for the case to go before the jury. The trial court denied the motion. During the final instruction conference, Veach's counsel objected to the State's proposed instruction which provided as follows:

It is not a defense to an offense described in this section that the human being died: (1) after voluntarily using, injecting, inhaling, absorbing, or ingesting a controlled substance or controlled substance analog; or (2) as a result of using the controlled substance or controlled substance analog in combination

with alcohol or another controlled substance or with any other compound, mixture, diluent, or substance.

(Appellant's App. Vol. II, p. 193). Veach objected that the instruction impermissibly directed the jury on what evidence to accept and reject and that it directed the jury to a legal conclusion. The trial court overruled Veach's objections and included the instruction as Final Instruction 9 to the jury.

[10] The jury found Veach guilty as charged. On May 24, 2022, the trial court held Veach's sentencing hearing. The trial court sentenced Veach to thirty-five years in the Department of Correction.

[11] Veach now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Sufficiency of the Evidence

A. Standard of Review

[12] Veach challenges the evidence supporting his conviction. Our standard of review is well-established: When reviewing such claims, we consider only the probative evidence and reasonable inferences supporting the fact-finder's determination, without reweighing the evidence or reassessing the credibility of the witnesses. Fix v. State , 186 N.E.3d 1134, 1138 (Ind. 2022). We will affirm unless no reasonable fact-finder could find that the elements of the offense were proven beyond a reasonable doubt. Id. Our supreme court has recently observed that our standard of review of sufficiency claims is consistent with the state and federal constitutional imperatives that, in a criminal case, the jury has the right to determine the law and the facts and that the defendant has the right to have his guilt determined by proof beyond a reasonable doubt on every element of the offense charged. Young v. State , 198 N.E.3d 1172, 1176 (Ind. 2022). "It is the role of the jury, as fact-finder, ‘to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction.’ " Id. (quoting Drane v. State , 867 N.E.2d 144, 146 (Ind. 2007) ).

B. Dealing in Fentanyl Resulting in Death

[13] The State charged Veach with dealing in Fentanyl and/or Acetyl Fentanyl, resulting in Esquival's death. See I.C. § 35-42-1-1.5(a). Veach does not contest that the State proved that he dealt Esquival a substance on October 29, 2020. Rather, Veach's first challenge is that the State did not produce sufficient evidence that the substance he dealt to Esquival was Fentanyl because McNair could only conclude that Fentanyl was "indicated" in the residue she tested. (Exh. Vol. IV, p. 86).

[14] Both parties acknowledge that, for purposes of a criminal offense, " ‘the identity of a drug can be proven by circumstantial evidence.’ " Vasquez v. State , 741 N.E.2d 1214, 1216 (Ind. 2001) (quoting Clifton v. State , 499 N.E.2d 256, 258 (Ind. 1986) ). In Sciaraffa v. State , 28 N.E.3d 351, 355-58, 360-61 (Ind. Ct. App. 2015), trans. denied , Sciaraffa was charged with dealing methamphetamine and, after conviction, challenged both the foundation for the admission of the presumptively positive test results that identified residue found on a glass bottle on his property as methamphetamine and the sufficiency of the evidence supporting his conviction. The forensic scientist who had conducted the testing on the residue concluded that the residue "presumptively indicated the presence of [m]ethamphetamine" after performing Thimlar chromatography and GC/MS testing on the specimen. Id. at 357 (record quotation omitted). However, the scientist had an insufficient sample to perform a confirmatory test. Id. at 358. At trial, the scientist testified that, in order to identify a controlled substance, she was required to perform at least two tests, a presumptive test and a confirmatory test. Id. Because she had been unable to perform the confirmatory test, the scientist testified that she could not be "scientifically certain" that the sample was methamphetamine. Id. (record quotation omitted). In light of this evidence, we concluded that the foundation for the admission of the drug identification evidence was adequate and that the scientist's inability to perform the confirmatory test went to the weight her testimony could be given, not its admissibility. Id. Citing the same presumptively positive test results, we also concluded that the State had presented sufficient evidence to sustain the conviction. Id. at 361.

[15] Although the precise issue raised by Veach was not addressed in Sciaraffa , that case demonstrates that it is not necessary for the State to produce chemical test results showing a drug identification to a scientific certainty in order to obtain a conviction. See id. Rather, scientifically reliable testing that shows that a drug's identity is ‘indicated’ is sufficient for the fact-finder to conclude that it is what the State alleges. Id. Here, as in Sciaraffa , McNair concluded that Fentanyl was "indicated" in the residue but that the identification "could not be confirmed due to insufficient sample concentration." (Exh. Vol. IV, p. 86). In addition, McNair testified that her conclusion was based upon the TLC test which was presumptively positive for Fentanyl, the confirmatory GC/MS test which resulted in a "strong indication for Fentanyl [,]" and her additional comparison of the TLC results against the known Fentanyl standards. (Tr. Vol. III, p. 82). McNair could not characterize the differences highlighted by Veach's counsel between the charge ratios of the residue sample and the Fentanyl standard as being significant. This testimony explaining the basis for McNair's conclusion constituted persuasive evidence that the residue at issue indeed contained Fentanyl, even though McNair was unable to render that conclusion to a scientific certainty.

[16] Our supreme court has recognized that proof beyond a reasonable doubt is a quantum of evidence that leaves the jury "firmly convinced" and not one that overcomes every possible doubt or one that reaches a level of absolute certainty. See Winegeart v. State , 665 N.E.2d 893, 902 (Ind. 1996) (adopting a pattern final instruction on reasonable doubt that embodies these concepts). Veach's argument on this point ignores the State's burden of proof and is simply a request that we reweigh the evidence that supports the jury's conclusion. These are things that we will not do as part of our review. Fix , 186 N.E.3d at 1138 ; Young , 198 N.E.3d at 1176.

[17] Veach also argues, without citation to authority, that without a scientifically conclusive chemical match between the Fentanyl in the residue from the baggie found next to Esquival's wallet and the Fentanyl found in Esquival's toxicology results, the State did not prove that the substance Veach delivered to Esquival was the cause of his death. Veach contends that the fact that Esquival's toxicology results conclusively identified Fentanyl and Acetyl Fentanyl, but the baggie residue testing did not, supported a defense theory that Esquival had accessed some other substance, presumably from the second baggie found at the scene, that had been the sole cause of his death. As a result, Veach argues that "the link between the substance attributed to him and Esquivel's death could only be forced by conjecture[.]" (Appellant's Br. p. 14).

[18] However, this argument is too, at best, another request that we reweigh the evidence before us. As we have already determined, the jury's conclusion that the residue on the baggie linked to Veach and delivered to Esquival was Fentanyl was supported by the evidence. The toxicologist who tested Esquival's bodily fluids testified at trial that any amount of Fentanyl can cause death. The jury could have reasonably concluded from Esquival's text to Veach "lemme see what doctor juan had here" and from the fact that only residue remained in the baggie Veach delivered to Esquival that Esquival ingested the Fentanyl delivered to him by Veach. (Exh. Vol. IV, p. 81). As set out more fully below, it is not a defense to the crime of dealing in narcotics resulting in death that the death occurred as a result of the decedent using the controlled substance delivered by the defendant along with any other controlled substance. I.C. § 35-42-1-1.5(d)(2). Therefore, even if Esquival had ingested another substance that contained Fentanyl or a blend of Fentanyl and Acetyl Fentanyl, because the evidence supported a conclusion that Esquival ingested Veach's Fentanyl, there was evidence presented at trial from which the jury could have inferred that the Fentanyl Veach delivered to Esquival was the cause of his death. This is the evidence that supports the jury's verdict, and it is the only evidence that we consider, pursuant to our standard of review. Fix , 186 N.E.3d at 1138. Accordingly, we do not disturb the jury's verdict.

II. Judgment on the Evidence

[19] Veach argues that the trial court erred when it denied his motion for judgment on the evidence. Indiana Trial Rule 50(A) provides that

[w]here all or some of the issues in a case tried before a jury or an advisory jury are not supported by sufficient evidence or a verdict thereon is clearly erroneous as contrary to the evidence because the evidence is insufficient to support it, the court shall withdraw such issues from the jury and enter judgment thereon[.]

[20] To avoid an adverse judgment on the evidence, it is necessary only that the State establish a prima facie case, and such a motion should only be granted if there is an absence of evidence on an essential element of the case, or where the evidence is without conflict and gives rise only to inferences in favor of the defendant. Russell v. State , 438 N.E.2d 741, 743 (Ind. 1982). We review the trial court's grant or denial of a motion for judgment on the evidence for an abuse of the trial court's discretion, considering only the evidence and reasonable inferences most favorable to the nonmoving party. Lawson v. State , 199 N.E.3d 829, 835 (Ind. Ct. App. 2022).

[21] Here, the State charged Veach with dealing Fentanyl "and/or" Acetyl Fentanyl, resulting in Esquival's death. (Appellant's App. Vol. II, p. 186). Veach argues that the trial court should have granted his motion for judgment on the evidence because the State's evidence identifying the substance he delivered to Esquival as Fentanyl was too weak to go before the jury, raising the same claims we have already rejected above. "If the evidence is sufficient to sustain a conviction on appeal, the denial of a motion for [judgment on the evidence] cannot be error." Beverly v. State , 543 N.E.2d 1111, 1114 (Ind. 1989). Because we have already concluded that the evidence supported a reasonable conclusion by the jury that Veach delivered Fentanyl to Esquival, resulting in Esquival's death, we cannot conclude that the trial court abused its discretion in denying judgment on the evidence. Given our conclusion and the fact that the State charged Veach in the alternative, we do not address Veach's contention that judgment on the evidence was merited as to his delivery of Acetyl Fentanyl. See Indiana Trial Rule 61 (providing that any trial court error or defect in any ruling or order is not ground for reversal on appeal unless it affects "the substantial rights of the parties.").

III. Jury Instruction

[22] Veach's last contention is that the trial court erred when it gave Final Instruction 9. Proper jury instructions inform the jury of the law applicable to the facts of the case so that the jury may comprehend the case clearly and arrive at a just, fair, and correct verdict. Albert v. State , 193 N.E.3d 1040, 1042 (Ind. Ct. App. 2022), trans. denied. We review the trial court's instructions to the jury for an abuse of the court's discretion, which occurs when the challenged instruction is erroneous and the instructions, taken as a whole, misstate the law or otherwise mislead the jury. Id. In reviewing the trial court's decision to give an instruction, we will consider: " ‘(1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions which are given.’ " Id. (quoting Guyton v. State , 771 N.E.2d 1141, 1144 (Ind. 2002) ).

[23] Indiana Code section 35-42-1-1.5(d) of the drug-induced homicide statute provides as follows:

It is not a defense to an offense described in this section that the human being died: (1) after voluntarily using, injecting, inhaling, absorbing, or ingesting a controlled substance or controlled substance analog; or (2) as a result of using the controlled substance or controlled substance analog in combination with alcohol or another controlled substance or with any other compound, mixture, diluent, or substance.

[24] Therefore, Final Instruction 9 was a verbatim recitation of the statute. Veach contends that, while the challenged instruction was a correct statement of the law, it was mandatory in nature and "invaded the province of the jury to evaluate whether Veach caused the death of Esquival, or whether an independent intervening cause caused Esquival's death." (Appellant's Br. p. 28). More specifically, Veach contends that the language of the instruction is misleading because it does not make it clear that Esquival's "conduct in obtaining another drug, arguably solely responsible for his death, is voluntary conduct on the part of the decedent for which he may be held accountable." (Appellant's Br. p. 30) (emphasis in the original).

[25] In Yeary v. State , 186 N.E.3d 662, 668 (Ind. Ct. App. 2022), Yeary, who had been convicted of drug-induced homicide, challenged the constitutionality of section 35-42-1-1.5(d), arguing that it impermissibly eliminated the State's burden of proving proximate causation, limited his right to present a defense, and was unconstitutionally vague. As part of his argument that the statute eliminated the State's burden to prove the offense, Yeary contended that subsection (d)(1) precluded him from arguing that the victim's death was not reasonably foreseeable and that the victim's conduct was an intervening cause that broke the chain of causation. Id. at 673. Yeary also contended that subsection (d)(2) prohibited him from arguing that any substance other than the one delivered by him was the cause of the victim's death. Id. In rejecting those arguments, we concluded that

[t]he plain language of subsection (d)(1) only precludes a defendant from raising as a complete defense that the person who died made the voluntary choice to use, inject, inhale, absorb, or ingest the drug manufactured or delivered by the defendant ... The plain language of [subsection (d)(2)] merely bars a defendant from raising as a complete defense that the person's death resulted from the person's combined use of the distributed drug and alcohol or another controlled substance.

Id. at 673-74. We explained that subsection (d)(2) "does not bar the defendant from raising as a defense that the death was not caused by the drug provided by the defendant" and does not impede the defendant from arguing that the death resulted solely from other substances ingested by the victim, not from a combination of the distributed drug and other substances. Id. at 674. In rejecting Yeary's argument that subsection (d)(1) impermissibly limited the evidence he could put forward to challenge the element of causation, we reiterated that the statute did not prevent a defendant from contesting causation and that a defendant was not prohibited "from ever arguing that the user's voluntary actions broke the chain of causation." Id. at 675.

[26] In light of Yeary , we cannot conclude that Final Instruction 9 impermissibly invaded the jury's ability to decide whether Esquival's voluntary intervening conduct in taking some substance other than the one delivered by Veach was an intervening cause of his death or that the trial court's instruction misled the jury regarding what role Esquival's voluntary conduct could have played in the offense. Nothing in the challenged instruction limited Veach's ability to argue his chosen defense theory, and he presents us with no relevant authority indicating that the trial court erred in not sua sponte providing further instruction addressing Esquival's voluntary conduct. Accordingly, we find no abuse of discretion in the trial court's instruction to the jury.

CONCLUSION

[27] Based on the foregoing, we conclude that the State proved the offense beyond a reasonable doubt, the trial court did not err in denying Veach's motion for judgment on the evidence, and that the trial court did not abuse its discretion in instructing the jury.

[28] Affirmed.

[29] Altice, C. J. and Pyle, J. concur