Johnathon R. Aslinger v. State of Indiana

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any May 07 2014, 9:30 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

JEREMY K. NIX GREGORY F. ZOELLER CASEY C. MORGAN Attorney General of Indiana Matheny Hahn Denman & Nix, LLP Huntington, Indiana ERIC P. BABBS Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

JOHNATHON R. ASLINGER, ) ) Appellant-Defendant, ) ) vs. ) No. 35A02-1303-CR-296 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE HUNTINGTON SUPERIOR COURT The Honorable Jeffrey R. Heffelfinger, Judge Cause No. 35D01-1206-FD-127 & 35D01-1207-FA-152

May 7, 2014

OPINION ON REHEARING

RILEY, Judge Appellant-Defendant, Johnathon R. Aslinger (Aslinger), appealed his conviction of

possession of methamphetamine, possession of paraphernalia, and dealing in

methamphetamine. In Aslinger v. State, 2 N.E.3d 84 (Ind. Ct. App. 2014), we reversed his

conviction for possession of methamphetamine, affirmed his conviction of dealing in

methamphetamine, and remanded the case to the trial court for further proceedings. The

State has petitioned for rehearing, to which Aslinger did not file a response. We grant the

State’s petition for rehearing for the limited purpose of clarifying the disposition of

Aslinger’s conviction for possession of paraphernalia.

In its petition for rehearing, the State requests that we either clarify that Aslinger is

entitled to a retrial on his conviction of possession of paraphernalia or that, as the State

would prefer, we specify our decision to affirm Aslinger’s conviction and remand for

resentencing in accordance with the opinion. See Ind. Appellate Rule 66(C)-(D). In our

opinion, we found that certain evidence was inadmissible as the product of an invalid

seizure pursuant to the Fourth Amendment—specifically a marijuana joint,

methamphetamine, and several items of paraphernalia. However, we did determine that a

single pipe was permissibly seized in the course of a Terry stop. As a result, we noted in

the fourth footnote that “Aslinger’s conviction for possession of paraphernalia may be

upheld on remand.”

To sustain Aslinger’s conviction, Indiana Code section 35-48-4-8.3(a)(1) requires

that he possessed that pipe with the intent to use it for “introducing into [his] body a

controlled substance.” Based on the evidence before us, we find that Aslinger’s intended

use for the pipe is unclear and we decline to direct the entry of a final judgment of

2 conviction. Therefore, we clarify our opinion by remanding Aslinger’s conviction for

possession of paraphernalia for a retrial.

CONCLUSION

We grant the State’s petition for rehearing for the limited purpose of ordering a

retrial on Aslinger’s conviction for possession of paraphernalia. We affirm our opinion in

all other respects.

KIRSCH, J. and ROBB, J. concur