Kenny Weaver v. State of Indiana (mem. dec.) ( 2015 )

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
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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).
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[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).
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[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.
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