FILED Jan 09 2024, 9:06 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Christopher Kunz Theodore E. Rokita Indianapolis, Indiana Attorney General of Indiana Kathy Bradley Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Steven T. Lakes, January 9, 2024 Appellant-Defendant, Court of Appeals Case No. 23A-CR-1442 v. Appeal from the Franklin Circuit Court State of Indiana, The Honorable J. Steven Cox, Appellee-Plaintiff Judge Trial Court Cause No. 24C01-2105-F3-336
Opinion by Judge Weissmann Chief Judge Altice and Judge Kenworthy concur.
Court of Appeals of Indiana | Opinion 23A-CR-1442 | January 9, 2024 Page 1 of 7 Weissmann, Judge.
[1] Police stopped Steven Lakes for a traffic violation and found that he possessed
sizeable amounts of methamphetamine and a substance resembling marijuana
that tested positive for the “presence of marijuana.” For this, a jury found Lakes
guilty of dealing in and possession of methamphetamine, possession of
marijuana, and two other drug-related crimes.
[2] On appeal, Lakes argues that the State presented insufficient evidence to
support his conviction for possession of marijuana. He also alleges, and the
State concedes, that his possession of methamphetamine conviction should be
vacated on double jeopardy grounds. We agree on both fronts and thus reverse
Lakes’s possession of marijuana conviction and remand for the trial court to
vacate his conviction for the possession of methamphetamine.
Facts [3] Brookville Police Lieutenant Ryan Geiser initiated a traffic stop of Lakes for
failing to signal before turning and because Lakes’s vehicle had an excessively
loud muffler. During the stop, Lieutenant Geiser detected a strong odor of
marijuana coming from inside Lakes’s vehicle. A subsequent search of the
vehicle revealed a clear bag with a substance that field-tested positive for
marijuana. The search also revealed 10 grams of methamphetamine, a digital
scale, a smoking pipe, and a small container holding pills of the controlled
substance buprenorphine.
Court of Appeals of Indiana | Opinion 23A-CR-1442 | January 9, 2024 Page 2 of 7 [4] The State charged Lakes with five crimes: (1) Level 3 felony dealing in
methamphetamine; (2) Level 5 felony possession of methamphetamine; (3)
Class A misdemeanor possession of a controlled substance; (4) Class B
misdemeanor possession of marijuana, and (5) Class C misdemeanor
possession of paraphernalia. A jury found Lakes guilty of all charges, and the
trial court sentenced him to 15 years imprisonment. On appeal, Lakes
challenges only his convictions under counts 2 and 4.
Discussion and Decision
I. The State Presented Insufficient Evidence to Prove that Lakes Possessed Marijuana. [5] When reviewing the sufficiency of the evidence supporting a conviction, we
consider only the probative evidence and reasonable inferences that support the
judgment. Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). A conviction will be
affirmed unless no reasonable factfinder could find the elements of the crime
proven beyond a reasonable doubt. Id. We do not reweigh the evidence or judge
the credibility of the witnesses. Id.
[6] To convict Lakes of the possession of marijuana, the State needed to prove,
beyond a reasonable doubt, that he knowingly or intentionally possessed
marijuana. Ind. Code § 35-48-4-11(a)(1). The Indiana Code defines
“marijuana” as “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.” Ind. Code § 35-48-1-19(a). This Court of Appeals of Indiana | Opinion 23A-CR-1442 | January 9, 2024 Page 3 of 7 definition does not encompass hemp. “Hemp” refers to “the plant Cannabis
sativa L. and any part of that plant . . . with a delta-9-tetrahydrocannabinol
concentration of not more than three-tenths of one percent (0.3%) on a dry
weight basis.” Ind. Code § 15-15-13-6.
[7] These statutory definitions inspire Lakes’s claim. Read together, they
distinguish legal and illegal cannabis substances by their concentration of delta-
9-THC. Toledo Rojo v. State, 202 N.E.3d 1085, 1088 (Ind. Ct. App. 2022), trans.
denied. At bottom, “to be illegal, the concentration of delta-9-THC must be
more than 0.3%.” Id. As a recent decision of this Court put it:
Our General Assembly has established a clear distinction between legal hemp and illegal marijuana based on the THC concentration present in the plant material, the effect being to now require the State to prove beyond a reasonable doubt that a substance is marijuana by proving that the substance's delta-9- THC concentration exceeds 0.3% on a dry weight basis.
Fritz v. State, No. 22A-CR-2340, 2023 WL 7478355, at *8 (Ind. Ct. App. Nov.
13, 2023).
[8] This Court has lately vacated several marijuana convictions for the State’s
failure to make this showing. See, e.g., id. at *8; Toledo Rojo, 202 N.E.3d at 1087-
90; Fedji v. State, 186 N.E.3d 696, 707-09 (Ind. Ct. App. 2022). The common
thread in each of these cases was the State’s failure to present evidence
establishing the THC concentration in the alleged marijuana. So too here.
Court of Appeals of Indiana | Opinion 23A-CR-1442 | January 9, 2024 Page 4 of 7 [9] On the record before us, the only evidence that could be interpreted as
establishing the delta-9-THC concentration of Lakes’s substance is that
Lieutenant Geiser conducted a field test that revealed “a positive presence of
marijuana.” Tr. Vol. III, p. 155. The details about how the field test arrived at
this conclusion were not explained at Lakes’s trial. And though the State sent
the suspected methamphetamine to the Indiana State Police Lab for further
testing, the suspected marijuana was not tested.
[10] This leads to the fatal flaw underpinning Lakes’s marijuana conviction: with the
legalization of hemp, Lieutenant Geiser’s generic statement no longer satisfies
the State’s burden of proof. Although “the State [does] not need to prove the
exact percent concentration of THC,” it must still “prove the substance
possessed was marijuana.” Fedij, 186 N.E.3d at 709. Because the difference
between marijuana and hemp turns on whether the concentration of delta-9-
THC exceeds 0.3% and the State did not make this showing here, insufficient
evidence supports Lakes’s marijuana conviction.
[11] The State’s arguments to the contrary fall flat. First, it alleges that Lakes
essentially admitted that the substance was illegal marijuana when he described
it as “weed.” Appellee’s Br., p. 12. But given the legalization of some forms of
the cannabis plant, it is no longer clear beyond a reasonable doubt whether
“weed” excludes legal products. See also Fritz, 2023 WL 7478355, at *8
(rejecting a similar confession because “it is well-settled that a person may not
be convicted of a crime based on a nonjudicial confession of guilt”). Nor does
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FILED Jan 09 2024, 9:06 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Christopher Kunz Theodore E. Rokita Indianapolis, Indiana Attorney General of Indiana Kathy Bradley Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Steven T. Lakes, January 9, 2024 Appellant-Defendant, Court of Appeals Case No. 23A-CR-1442 v. Appeal from the Franklin Circuit Court State of Indiana, The Honorable J. Steven Cox, Appellee-Plaintiff Judge Trial Court Cause No. 24C01-2105-F3-336
Opinion by Judge Weissmann Chief Judge Altice and Judge Kenworthy concur.
Court of Appeals of Indiana | Opinion 23A-CR-1442 | January 9, 2024 Page 1 of 7 Weissmann, Judge.
[1] Police stopped Steven Lakes for a traffic violation and found that he possessed
sizeable amounts of methamphetamine and a substance resembling marijuana
that tested positive for the “presence of marijuana.” For this, a jury found Lakes
guilty of dealing in and possession of methamphetamine, possession of
marijuana, and two other drug-related crimes.
[2] On appeal, Lakes argues that the State presented insufficient evidence to
support his conviction for possession of marijuana. He also alleges, and the
State concedes, that his possession of methamphetamine conviction should be
vacated on double jeopardy grounds. We agree on both fronts and thus reverse
Lakes’s possession of marijuana conviction and remand for the trial court to
vacate his conviction for the possession of methamphetamine.
Facts [3] Brookville Police Lieutenant Ryan Geiser initiated a traffic stop of Lakes for
failing to signal before turning and because Lakes’s vehicle had an excessively
loud muffler. During the stop, Lieutenant Geiser detected a strong odor of
marijuana coming from inside Lakes’s vehicle. A subsequent search of the
vehicle revealed a clear bag with a substance that field-tested positive for
marijuana. The search also revealed 10 grams of methamphetamine, a digital
scale, a smoking pipe, and a small container holding pills of the controlled
substance buprenorphine.
Court of Appeals of Indiana | Opinion 23A-CR-1442 | January 9, 2024 Page 2 of 7 [4] The State charged Lakes with five crimes: (1) Level 3 felony dealing in
methamphetamine; (2) Level 5 felony possession of methamphetamine; (3)
Class A misdemeanor possession of a controlled substance; (4) Class B
misdemeanor possession of marijuana, and (5) Class C misdemeanor
possession of paraphernalia. A jury found Lakes guilty of all charges, and the
trial court sentenced him to 15 years imprisonment. On appeal, Lakes
challenges only his convictions under counts 2 and 4.
Discussion and Decision
I. The State Presented Insufficient Evidence to Prove that Lakes Possessed Marijuana. [5] When reviewing the sufficiency of the evidence supporting a conviction, we
consider only the probative evidence and reasonable inferences that support the
judgment. Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). A conviction will be
affirmed unless no reasonable factfinder could find the elements of the crime
proven beyond a reasonable doubt. Id. We do not reweigh the evidence or judge
the credibility of the witnesses. Id.
[6] To convict Lakes of the possession of marijuana, the State needed to prove,
beyond a reasonable doubt, that he knowingly or intentionally possessed
marijuana. Ind. Code § 35-48-4-11(a)(1). The Indiana Code defines
“marijuana” as “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.” Ind. Code § 35-48-1-19(a). This Court of Appeals of Indiana | Opinion 23A-CR-1442 | January 9, 2024 Page 3 of 7 definition does not encompass hemp. “Hemp” refers to “the plant Cannabis
sativa L. and any part of that plant . . . with a delta-9-tetrahydrocannabinol
concentration of not more than three-tenths of one percent (0.3%) on a dry
weight basis.” Ind. Code § 15-15-13-6.
[7] These statutory definitions inspire Lakes’s claim. Read together, they
distinguish legal and illegal cannabis substances by their concentration of delta-
9-THC. Toledo Rojo v. State, 202 N.E.3d 1085, 1088 (Ind. Ct. App. 2022), trans.
denied. At bottom, “to be illegal, the concentration of delta-9-THC must be
more than 0.3%.” Id. As a recent decision of this Court put it:
Our General Assembly has established a clear distinction between legal hemp and illegal marijuana based on the THC concentration present in the plant material, the effect being to now require the State to prove beyond a reasonable doubt that a substance is marijuana by proving that the substance's delta-9- THC concentration exceeds 0.3% on a dry weight basis.
Fritz v. State, No. 22A-CR-2340, 2023 WL 7478355, at *8 (Ind. Ct. App. Nov.
13, 2023).
[8] This Court has lately vacated several marijuana convictions for the State’s
failure to make this showing. See, e.g., id. at *8; Toledo Rojo, 202 N.E.3d at 1087-
90; Fedji v. State, 186 N.E.3d 696, 707-09 (Ind. Ct. App. 2022). The common
thread in each of these cases was the State’s failure to present evidence
establishing the THC concentration in the alleged marijuana. So too here.
Court of Appeals of Indiana | Opinion 23A-CR-1442 | January 9, 2024 Page 4 of 7 [9] On the record before us, the only evidence that could be interpreted as
establishing the delta-9-THC concentration of Lakes’s substance is that
Lieutenant Geiser conducted a field test that revealed “a positive presence of
marijuana.” Tr. Vol. III, p. 155. The details about how the field test arrived at
this conclusion were not explained at Lakes’s trial. And though the State sent
the suspected methamphetamine to the Indiana State Police Lab for further
testing, the suspected marijuana was not tested.
[10] This leads to the fatal flaw underpinning Lakes’s marijuana conviction: with the
legalization of hemp, Lieutenant Geiser’s generic statement no longer satisfies
the State’s burden of proof. Although “the State [does] not need to prove the
exact percent concentration of THC,” it must still “prove the substance
possessed was marijuana.” Fedij, 186 N.E.3d at 709. Because the difference
between marijuana and hemp turns on whether the concentration of delta-9-
THC exceeds 0.3% and the State did not make this showing here, insufficient
evidence supports Lakes’s marijuana conviction.
[11] The State’s arguments to the contrary fall flat. First, it alleges that Lakes
essentially admitted that the substance was illegal marijuana when he described
it as “weed.” Appellee’s Br., p. 12. But given the legalization of some forms of
the cannabis plant, it is no longer clear beyond a reasonable doubt whether
“weed” excludes legal products. See also Fritz, 2023 WL 7478355, at *8
(rejecting a similar confession because “it is well-settled that a person may not
be convicted of a crime based on a nonjudicial confession of guilt”). Nor does
Lieutenant Geiser’s experience and expertise in identifying marijuana establish
Court of Appeals of Indiana | Opinion 23A-CR-1442 | January 9, 2024 Page 5 of 7 the substance as the illegal form of the cannabis plant. See id. (citing Fedij, 186
N.E.3d at 709).
[12] Though each being insufficient on its own, the State asserts that Lakes’s
admission and Lieutenant Geiser’s identification combine to create a sufficient
basis for Lakes’s conviction. To be sure, a handful of prior cases have taken the
State’s view. For example, in Doolin v. State, this Court held that a police
officer’s “experience, training, and personal observations, along with other
circumstantial evidence, sufficiently established the identity of the substance as
marijuana.” 970 N.E.2d 785 (Ind. Ct. App. 2012) (collecting cases). But these
cases pre-date the existence of legal hemp. Ind. Code § 35-48-1-19(b)(6) (2014)
(redefining “marijuana” to exclude “industrial hemp”); Ind. Code § 35-48-1-
19(b)(6) (2019) (changing the exception to simply “hemp”). Thus, the cases the
State cites did not require a determination of the alleged marijuana’s delta-9-
THC concentration, subsequently lowering the evidentiary bar for the
circumstantial evidence to clear. Accordingly, we find the State’s cited cases
inapposite on this point.
[13] Finding insufficient evidence to support it, we reverse Lakes’s Class B
misdemeanor possession of marijuana conviction.
II. Lakes’s Conviction for Possession of Methamphetamine is Vacated on Double Jeopardy Grounds. [14] Lakes next asks this Court to vacate his conviction for possession of
methamphetamine because it is a lesser-included offense to his dealing
Court of Appeals of Indiana | Opinion 23A-CR-1442 | January 9, 2024 Page 6 of 7 conviction and is based on the same underlying facts. With the State conceding
that this argument is correct, we agree and remand for the trial court to vacate
Lakes’s possession of methamphetamine conviction.
[15] Reversed and remanded.
Altice, C.J., and Kenworthy, J., concur..
Court of Appeals of Indiana | Opinion 23A-CR-1442 | January 9, 2024 Page 7 of 7