John C. Jones v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 24, 2020
• Docket: 19A-CR-2161
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 24 2020, 10:17 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Darren Bedwell Curtis T. Hill, Jr. Marion County Public Defender Attorney General Appellate Division Indianapolis, Indiana George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

John C. Jones, March 24, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2161 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Clayton A. Graham, Appellee-Plaintiff Judge Trial Court Cause No. 49G07-1810-CM-34883

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2161 | March 24, 2020 Page 1 of 9 Case Summary [1] John C. Jones appeals his conviction for class A misdemeanor possession of

marijuana. He contends that the State presented insufficient evidence to

support his conviction and that the trial court committed fundamental error in

instructing the jury. Finding sufficient evidence, and concluding that Jones has

not met his burden to demonstrate fundamental error, we affirm.

Facts and Procedural History [2] On October 10, 2018, Indianapolis Metropolitan Police Department Detective

Sergeant Steven Spears was working undercover conducting surveillance for a

drug investigation. Detective Spears was parked in an unmarked vehicle on

East LeGrande Avenue when Jones, who was not a target of the investigation,

exited his nearby residence and approached the vehicle. Jones asked Detective

Spears why he was parked in front of his residence. Detective Spears told Jones

that he was waiting for a realtor and that he would be leaving soon. Jones told

Detective Spears that he needed to move. Detective Spears explained to Jones

that he was not doing anything wrong and that he was parked legally on the

side of the road. Jones became “very upset” and told Detective Spears “to get

out of his f**king [parking] spot.” Tr. Vol. 2 at 86. Detective Spears refused,

and Jones went back inside his residence. Detective Spears radioed his team so

that they would be ready to assist in the event that Jones failed to “calm[]

down.” Id. at 88. Jones stayed inside for a short period but then exited and got

into his own vehicle. Jones pulled his vehicle right up to Detective Spears’s

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2161 | March 24, 2020 Page 2 of 9 vehicle and “glared” at Detective Spears. Id. Jones then returned inside his

residence.

[3] A few minutes later, Jones exited his residence and approached Detective

Spears. Detective Spears rolled his window down a couple inches, and Jones

told him, “I’m giving you one last f**king chance … you better move or you’re

going to get hurt.” Id. at 89. After Detective Spears rolled his window back up,

Jones “aggressive[ly]” grabbed at the detective’s car “door handle and started

yanking on it.” Id. Detective Spears exited his vehicle and verbally identified

himself as a police officer.

[4] Jones retreated inside his residence for a moment and then came back out and

got in his own vehicle and drove away. Detective Spears followed him, and

uniformed officers subsequently performed a traffic stop of Jones’s vehicle.

During the stop, Officer Christopher Maher “smelled a strong odor of

marijuana coming from [Jones’s] vehicle.” Id. at 50-51. He immediately

recognized the smell based upon his training and experience, which included

“hundreds of arrests involving marijuana.” Id. at 51. Consequently, Officer

Maher searched the vehicle and found a “marijuana blunt cigarette” and a

digital scale in the center console. Id.

[5] The State charged Jones with class A misdemeanor intimidation and class B

misdemeanor possession of marijuana. The possession charge was

subsequently enhanced to a class A misdemeanor based upon Jones’s prior

conviction for a drug offense. A jury trial was held on August 15, 2019.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2161 | March 24, 2020 Page 3 of 9 During trial, Jones stipulated to the admission of a lab report containing the

forensic analysis of the blunt found in his vehicle. The lab report stated that

“the vegetation” in the “broken hand rolled cigarette” was tested and “was

found to contain Marijuana with Tetrahydrocannabinol (THC) – percent not

determined.” State’s Ex. 1.

[6] The jury found Jones guilty of class A misdemeanor possession of marijuana

but not guilty of class A misdemeanor intimidation. Following a hearing, the

trial court sentenced Jones to 365 days, with 351 days suspended and 180 days

of non-reporting probation. This appeal ensued.

Discussion and Decision

Section 1 – The State presented sufficient evidence to support Jones’s conviction. [7] Jones first asserts that the State presented insufficient evidence to support his

conviction for class A misdemeanor possession of marijuana. When reviewing

a claim of insufficient evidence, we neither reweigh the evidence nor assess

witness credibility. Bell v. State, 31 N.E.3d 495, 499 (Ind. 2015). We look to the

evidence and reasonable inferences drawn therefrom that support the

conviction, and will affirm if there is probative evidence from which a

reasonable factfinder could have found the defendant guilty beyond a

reasonable doubt. Id. In short, if the testimony believed by the trier of fact is

enough to support the conviction, then the reviewing court will not disturb it.

Id. at 500.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2161 | March 24, 2020 Page 4 of 9 [8] To prove that Jones committed class A misdemeanor possession of marijuana,

the State was required to prove that he knowingly or intentionally possessed

marijuana. Ind Code § 35-48-4-11. Jones argues that the State failed to prove

that the substance he possessed (the vegetation in the blunt) was actually

marijuana. We disagree.

[9] At the time of Jones’s possession of the blunt, October 2018, Indiana Code

Section 35-48-1-19 provided:

(a) “Marijuana” means any part of the plant genus Cannabis whether growing or not; the seeds thereof; the resin extracted from any part of the plant, including hashish and hash oil; any compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin.

(b) The term does not include:

(1) the mature stalks of the plant; (2) fiber produced from the stalks; (3) oil or cake made from seeds of the plant; (4) any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom); (5) the sterilized seed of the plant which is incapable of germination; (6) industrial hemp (as defined by IC 15-15-13-6);[ 1] or (7) low THC hemp extract.

1 At the time of Jones’s possession, Indiana Code Section 15-15-13-6 defined “industrial hemp” as:

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2161 | March 24, 2020 Page 5 of 9 [10] Here, in addition to Officer Maher’s testimony that he smelled what he

recognized, based upon his training and experience, to be the strong odor of

marijuana emanating from Jones’s vehicle, the trial court admitted into

evidence, by stipulation of the parties, a lab report that provided forensic

analysis for the “broken hand rolled cigarette containing/spilling vegetation”

found in the vehicle. State’s Ex. 1. The report stated that “[t]he vegetation,

with a net weight of 1.83 grams, was tested and was found to contain

Marijuana with Tetrahydrocannabinol (THC) – percent not determined.” Id.

[11] Jones speculates that the vegetation in the blunt could have been “industrial

hemp” rather than marijuana because the lab report indicated that the

percentage of THC present in the substance was “not determined.” Id. First,

we note that the statutory definition of marijuana adopted by our legislature

does not include a specific reference to THC content. Accordingly, the State

was not required to present evidence of the exact percentage of THC content in

the substance. Moreover, we agree with the State that there is no reason to

(1) all nonseed parts and varieties of the Cannabis sativa plant, whether growing or not, that contain a crop wide average tetrahydrocannabinol (THC) concentration that does not exceed the lesser of: (A) three-tenths of one percent (0.3%) on a dry weight basis; or (B) the percent based on a dry weight basis determined by the federal Controlled Substances Act (21 U.S.C. 801 et seq.); or (2) any Cannabis sativa seed that is: (A) part of a growing crop; (B) retained by a grower for future planting; or (C) for processing into, or use as, agricultural hemp seed. The term does not include industrial hemp commodities or products.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2161 | March 24, 2020 Page 6 of 9 believe that the forensic lab report identifying the substance specifically as

“Marijuana” would have identified the substance as such if it were not.

Significantly, Jones did not object to the validity of the forensic lab’s testing

procedures or methodologies underlying its conclusion that the substance was

marijuana as defined by applicable statute, and he never once suggested during

trial that the substance found in his possession might have been industrial hemp

rather than marijuana. To the extent that Jones implies that the State was

required to present a lab report that contained a finding that the substance was

not industrial hemp, that is simply not the case. 2

[12] Contrary to Jones’s suggestion, it was not the State’s burden to prove what the

substance was not; meaning, the State was not required to establish that the

substance in the blunt was not industrial hemp. Rather, it was the State’s burden

to prove that the substance in the blunt was marijuana. The police officer’s

testimony, coupled with the stipulated-to forensic lab report concluding that the

2 Jones argues that the State was required to prove that the substance was not industrial hemp by proving that “the crop wide average” THC concentration for the substance tested exceeded “three-tenths of one percent (0.3%) on a dry weight basis.” See Ind. Code § 15-15-13-6. How exactly the State could have acquired and presented evidence regarding “the crop wide average” THC concentration for the vegetation in the blunt is unknown to us. The language of the industrial hemp statute was clearly intended to legalize and regulate hemp farming rather than provide an additional evidentiary hurdle for the State in prosecutions for marijuana possession.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2161 | March 24, 2020 Page 7 of 9 [13] vegetation in the blunt was, in fact, marijuana, was sufficient to do so.3 The

State presented sufficient evidence to support Jones’s conviction.

Section 2 – The trial court did not commit fundamental error in instructing the jury. [14] Jones next argues that the trial court committed fundamental error in failing to

instruct the jury regarding the definition of industrial hemp. Jones concedes

that he did not tender the instruction that he now asserts should have been

given, and that such failure has resulted in waiver of the issue. See Ortiz v. State,

766 N.E.2d 370, 375 (Ind. 2002) (“failure to tender an instruction results in

waiver of the issue for review”). Thus, he asserts that fundamental error

occurred when the trial court failed to sua sponte instruct the jury on the

definition of industrial hemp. An error is fundamental if it clearly and blatantly

violated basic principles of due process resulting in “undeniable and substantial

potential for harm.” Batchelor v. State, 119 N.E.3d 550, 559 (Ind. 2019) (citation

omitted). Fundamental error is an “extremely narrow exception to the waiver

rule,” and a defendant “bears the heavy burden of showing that a fair trial was

impossible.” Harris v. State, 76 N.E.3d 137, 139 (Ind. 2017).

3 Jones’s brief includes numerous citations to material outside the record. We remind Jones that “[i]t is well settled that matters outside the record cannot be considered by this [C]ourt on appeal.” LHT Capital, LLC v. Ind. Horse Racing Com’n, 891 N.E.2d 646, 654 (Ind. Ct. App. 2008) (citation omitted). Indeed, “[a] judge must not independently investigate facts in a case and must consider only the evidence presented.” See A.B. v. State, 885 N.E.2d 1223, 1224 (Ind. 2008) (citing Ind. Code of Judicial Conduct, Commentary to Canon 3B).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2161 | March 24, 2020 Page 8 of 9 [15] Jones has not met that heavy burden. Jones is claiming that, in addition to

giving the statutory definition of marijuana, which includes the substances that

are excluded from the definition, the trial court was required to sua sponte also

give an instruction specifically defining one of the substances, industrial hemp,

that is not marijuana. He makes this assertion despite the fact that he presented

no evidence or argument during trial that the substance found in his vehicle was

industrial hemp. To say that such an instruction, when given completely out of

context as Jones suggests, would have served to confuse the jury would be an

understatement. Jones is essentially arguing that he was deprived of a fair trial

because the trial court failed to act as his advocate and advance a novel theory

that was never raised and that was unsupported by the evidence. His argument

in unavailing. See Santiago v. State, 985 N.E.2d 760, 761 (Ind. Ct. App. 2013)

(jury instruction must be supported by evidence and should not serve to mislead

jury as to law in case). Jones has not met his burden to establish that the trial

court’s instruction of the jury resulted in undeniable and substantial potential

for harm. We affirm his conviction.

[16] Affirmed.

May, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2161 | March 24, 2020 Page 9 of 9