Joshua S. Jessup v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 30, 2018
• Docket: 18A-CR-1343
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Nov 30 2018, 10:55 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE John T. Wilson Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana

Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Joshua S. Jessup, November 30, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1343 v. Appeal from the Henry Circuit Court State of Indiana, The Honorable Appellee-Plaintiff. David L. McCord, Judge Trial Court Cause No. 33C03-1708-CM-793

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1343 | November 30, 2018 Page 1 of 5 [1] Joshua S. Jessup (“Jessup”) appeals his conviction for Class B misdemeanor

possession of marijuana,1 raising the following restated issue: whether the State

presented sufficient evidence to support Jessup’s conviction.

[2] We affirm.

Facts and Procedural History [3] On August 14, 2017, Officer Donald McClure (“Officer McClure”) responded

to a dispatch regarding an intoxicated man who had fallen. Tr. Vol. II at 6.

Officer McClure had served as a law enforcement officer for about nine years,

had been trained to recognize marijuana by odor and color, and had made

arrests or been “involved in” approximately thirty marijuana-related cases. Id.

at 5-6.

[4] When Officer McClure arrived, several EMTs were standing around Jessup and

speaking with him. Id. at 7. Officer McClure also spoke with Jessup, who kept

reaching down to his lower pants’ pocket. Id. Officer McClure asked Jessup

what was in the pocket, and Jessup admitted that he had a “joint.” Id. at 8.

Officer McClure removed the joint from Jessup’s pocket, which turned out to

be two hand-rolled joints, one unburnt and unconsumed, and the other burnt

and half consumed; both were stored in a cigarette box. Id.; Ex. Vol. 3, State’s

Ex. 2 at 7. Jessup was charged with possession of marijuana, a Class B

1 See Ind. Code § 35-48-4-11(a)(1).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1343 | November 30, 2018 Page 2 of 5 misdemeanor. Appellant’s App. Vol. II at 6. At the bench trial, Officer McClure

testified that the intact joint smelled of raw marijuana and that the half-burned

joint smelled of burnt marijuana. Tr. Vol II at 8. Jessup did not object to this

testimony. Appellant’s Br. at 5. During later testimony, Officer McClure

identified the items in State’s Exhibit 2 as marijuana. Tr. Vol. II at 10. Jessup

did not object to this testimony either. The trial court found Jessup guilty as

charged, stating “the officer testified that in his training and experience that he

smelled the marijuana.” Id. at 18. Jessup now appeals.

Discussion and Decision [5] When reviewing the sufficiency of the evidence, we consider only the probative

evidence and reasonable inferences supporting the verdict. Willis v. State, 27

N.E.3d 1065, 1066 (Ind. 2015). The fact-finder, not the appellate court,

assesses witness credibility and the weight of the evidence to determine if the

evidence supports a conviction. Id. When we confront conflicting evidence, we

consider the evidence most favorable to the trial court’s ruling. Id. We will

affirm the conviction unless no reasonable fact-finder could find the elements of

the crime proven beyond a reasonable doubt. Drane v. State, 867 N.E.2d 144,

146 (Ind. 2007). Thus, the evidence need not overcome every reasonable

hypothesis of innocence. Id. at 147.

[6] To obtain a conviction for Class B misdemeanor possession of marijuana, the

State must prove that a person knowingly or intentionally possessed marijuana.

See Ind. Code § 35-48-4-11(a). “The identity of a controlled substance may be

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1343 | November 30, 2018 Page 3 of 5 established through witness testimony and circumstantial evidence.” Yoakum v.

State, 95 N.E.3d 169, 175 (Ind. Ct. App. 2018) (citing Helton v. State, 907

N.E.2d 1020, 1024 (Ind. 2009), trans. denied). “The opinion of someone

sufficiently experienced with the drug may establish its identity, as may other

circumstantial evidence. Although chemical analysis is one way, and perhaps

the best way, to establish the identity of a compound, persons experienced in

the area may be able to identify cigarette smoke, [and] marijuana . . . . .” Id.

(citation omitted).

[7] Where an appellant has failed to object to the admission of evidence at trial, we

may review an evidentiary claim only if the appellant demonstrates

fundamental error. Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014). “The

fundamental error exception is extremely narrow and applies only when the

error constitutes a blatant violation of basic principles, the harm or potential for

harm is substantial, and the resulting error denies the defendant fundamental

due process.” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). Such error is so

prejudicial to a defendant that a fair trial is impossible. McKinley v. State, 45

N.E.3d 25, 28 (Ind. Ct. App. 2015).

[8] Here, Jessup contends that even though Officer McClure’s testimony

established his training and experience regarding the identification of

marijuana, his testimony did not establish a sufficiently specific foundation for

his conclusion that Jessup was possessing marijuana. Jessup contends that the

State’s foundational evidence should have addressed 1) whether Officer

McClure himself had seized the marijuana in the previous cases; 2) whether the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1343 | November 30, 2018 Page 4 of 5 marijuana in previous cases was field tested or lab tested; and 3) whether

Officer McClure was a certified drug recognition expert or had even

successfully completed his training. Appellant’s Br. at 6. Recognizing that he

failed to object to the State’s foundation, Jessup contends that the allegedly

inadequate foundation constitutes fundamental error.

[9] We reject Jessup’s argument and find that the foundation for Officer McClure’s

testimony was sufficiently specific. Thus, we find no error, fundamental or

otherwise. It is well established that testimony covering the basics of an

officer’s training and experience is adequate to establish an adequate foundation

for an officer’s testimony about the identity of a controlled substance. See, e.g.,

Vasquez v. State, 741 N.E.2d 1214, 1217 (Ind. 2001); Clifton v. State, 499 N.E.2d

256, 258 (Ind. 1986); Helton v. State, 907 N.E.2d 1020, 1024 (Ind. 2009); and

Boggs v. State, 928 N.E.2d 855, 865 (Ind. Ct. App. 2010), trans. denied. Here,

Officer McClure’s testimony about his training and experience in identifying

marijuana by odor and color and his involvement in thirty marijuana-related

arrests more than adequately fulfilled the requirements of the foundation.

Thus, Officer McClure’s testimony that the controlled substance that Jessup

possessed was marijuana, in addition to Jessup’s admission that he was

carrying joints in his pocket, provided sufficient evidence for Jessup’s

conviction for Class B misdemeanor possession of marijuana.

[10] Affirmed.

Vaidik, C.J., and Riley, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1343 | November 30, 2018 Page 5 of 5