Kenny Weaver v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jul 16 2015, 8:40 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Patricia Caress McMath Gregory Zoeller Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Cynthia L. Ploughe Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kenny Weaver, July 16, 2015

Appellant-Defendant, Court of Appeals Case No. 49A02-1412-CR-837 v. Appeal from the Marion Superior Court The Honorable Marshelle State of Indiana, Broadwell, Judge pro tempore Appellee-Plaintiff, Cause No. 49G10-1409-CM-45040

Bradford, Judge.

Case Summary [1] Appellee-Plaintiff the State of Indiana (“the State”) charged Appellant-

Defendant Kenny Weaver with Class A misdemeanor possession of a synthetic

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-837 | July 16, 2015 Page 1 of 4

drug lookalike substance after a police officer discovered Weaver in possession

of a white baggie containing a green leafy substance. The only evidence

presented by the State that the substance was an illegal synthetic drug lookalike

was testimony from the arresting officer that Weaver admitted that the

substance was “spice,” a term commonly used to refer to synthetic forms of

marijuana.1 The trial court found Weaver guilty as charged. On appeal,

Weaver argues that there is insufficient evidence to support his conviction and

the State agrees. We reverse Weaver’s conviction for possession of a synthetic

drug lookalike substance.

Facts and Procedural History [2] On September 23, 2014, Indianapolis Metropolitan Police Officer Shawn

Romeril identified Weaver’s vehicle as having an improperly displayed

temporary license plate. A BMV check revealed that the temporary plate had

been issued to a different car. (Tr. 7-8) After conducting a traffic stop, Officer

Romeril learned that Weaver had never been issued a driver’s license and had

an active warrant for his arrest. (Tr. 9, 12) Officer Romeril placed Weaver

under arrest and, upon searching his person, found a white baggie in Weaver’s

pocket containing a green leafy substance. (Tr. 13) Weaver told Officer

Romeril that the leafy substance was “spice,” not marijuana. Tr. p. 20.

1 Elvers v. State, 22 N.E.3d 824, 828 (Ind. Ct. App. 2014).

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-837 | July 16, 2015 Page 2 of 4 [3] The State charged Weaver with Class A misdemeanor possession of a synthetic

drug lookalike substance and Class C misdemeanor operating a vehicle without

ever receiving a license. (App. 5, 13) The only evidence presented by the State

that the substance was an illegal synthetic drug lookalike was testimony from

Officer Romeril that Weaver stated that the substance was spice. (Tr. 20) The

State conducted no chemical analysis to verify the nature of the substance. (Tr.

28) A bench trial was conducted on November 10, 2014 at which the trial court

found Weaver guilty as charged and sentenced him to a 365-day term with 305

days suspended, noting that Weaver had 60 days of credit for time served.

Discussion and Decision [4] Weaver challenges only his conviction for possession of a synthetic drug

lookalike substance, arguing (1) that there is insufficient evidence to support his

conviction and (2) that the Indiana statutes defining “synthetic drug lookalike

substance” are unconstitutionally vague. Because the State concedes and we

find that there is insufficient evidence to support Weaver’s conviction, we need

not address the constitutionality of the statute.

[5] When reviewing the sufficiency of the evidence, we consider only the probative evidence and reasonable inferences supporting the verdict. Mork v. State, 912 N.E.2d 408, 411 (Ind. Ct. App. 2009) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)). We do not reweigh the evidence or assess witness credibility. Id. We consider conflicting evidence most favorably 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. Id. Boggs v. State, 928 N.E.2d 855, 864 (Ind. Ct. App. 2010).

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-837 | July 16, 2015 Page 3 of 4 [6] “[W]hen the charge is possession of a controlled substance, the courts require

more than a Defendant’s extrajudicial statement of identification of the

substance to show that the substance possessed was indeed contraband.”

Warthan v. State, 440 N.E.2d 657, 661 (Ind. 1982). The only evidence that the

leafy substance in Weaver’s possession was an illegal substance was Weaver’s

own statement to Officer Romeril that it was “spice.” Tr. p. 20. Based on

Warthan, this evidence alone is insufficient to prove that Weaver was in

possession of a synthetic lookalike drug. In its brief, the State acknowledges

that “its evidence did not establish that the substance that [Weaver] possessed

meets the definition of ‘synthetic drug lookalike substance.’” Appellee’s Br. p.

4. Accordingly, we reverse Weaver’s conviction for possession of a synthetic

drug lookalike substance. Weaver’s conviction for class C misdemeanor

operating a vehicle without having received a license remains unaffected by this

judgment. [7] The judgment of the trial court is affirmed in part and reversed in part.

Vaidik, C.J., and Kirsch, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-837 | July 16, 2015 Page 4 of 4