HERMAN O. FRITZ v. State of Indiana ( 2023 )

FILED
Nov 13 2023, 8:52 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Christopher C. Crawford Theodore E. Rokita
Goshen, Indiana Attorney General of Indiana
Robert M. Yoke
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Herman O. Fritz, November 13, 2023
Appellant-Defendant Court of Appeals Case No.
22A-CR-2340
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable David C.
Appellee-Plaintiff. Bonfiglio, Judge
Trial Court Cause No.
20D06-2102-F6-147
Opinion by Judge Pyle
Judges Vaidik and Mathias concur.
Pyle, Judge.
Court of Appeals of Indiana | Opinion 22A-CR-2340| November 13, 2023 Page 1 of 22
Statement of the Case
[1] Herman O. Fritz (“Fritz”) appeals his convictions, following a jury trial, for
1
Level 6 felony possession of methamphetamine, Class A misdemeanor
2
resisting law enforcement, Class A misdemeanor possession of marijuana with
3 4
a prior conviction, and Class C misdemeanor possession of paraphernalia.
Fritz argues that: (1) the trial court abused its discretion in admitting evidence
seized from a patdown search and a subsequent search incident to Fritz’s arrest
because the searches violated his constitutional rights; and (2) there was
insufficient evidence to support Fritz’s possession of marijuana conviction.
Concluding that the trial court properly admitted the evidence, but the State
failed to present sufficient evidence to sustain Fritz’s possession of marijuana
conviction, we affirm in part, reverse in part, and remand.
[2] We affirm in part, reverse in part, and remand.
Issues
1. Whether the trial court abused its discretion by admitting
evidence found during a patdown search of Fritz and a
subsequent search incident to Fritz’s arrest.
1
IND. CODE § 35-48-4-6.1.
2
I.C. § 35-44.1-3-1.
3
I.C. § 35-48-4-11.
4
I.C. § 35-48-4-8.3.
Court of Appeals of Indiana | Opinion 22A-CR-2340| November 13, 2023 Page 2 of 22
2. Whether there was sufficient evidence to support Fritz’s
possession of marijuana conviction.
Facts
[3] On the afternoon of January 29, 2021, Elkhart Police Department Sergeant
Seth Watkins (“Sergeant Watkins”) was dispatched to a local grocery store
regarding a medical emergency. When Sergeant Watkins arrived, he saw a
disheveled man, later identified as fifty-eight-year-old Fritz, lying on his back in
the store’s parking lot. Concerned for Fritz’s well-being, Sergeant Watkins
approached Fritz and asked him what had happened. Fritz told Sergeant
Watkins that he “must have [fallen].” (Tr. at 98). When Sergeant Watkins
asked Fritz if he had ingested any drugs, Fritz “slowly responded no.” (Tr. at
98).
[4] Paramedics arrived at the grocery store parking lot shortly after Sergeant
Watkins’ arrival, and the medics and Sergeant Watkins helped Fritz to his feet
so they could “start trying to figure out what [was] going on” with Fritz. (Tr. at
99). At that point, Sergeant Watkins decided to perform a patdown search of
Fritz for officer safety, to “make sure that [Fritz] was not armed[,]” and so that
the medics would not be harmed when they administered treatment, in the
event Fritz later suffered “some type of psychiatric issue[.]” (Tr. at 99).
Because Sergeant Watkins recently had been stabbed with a drug needle while
working a different case, the sergeant asked Fritz if he “had anything that was
going to stick or poke” the sergeant, and Fritz answered in the negative. (Tr. at
99).
Court of Appeals of Indiana | Opinion 22A-CR-2340| November 13, 2023 Page 3 of 22
[5] The jacket that Fritz was wearing was unzipped and open, and Sergeant
Watkins could see the jacket’s interior pocket. Sergeant Watkins patted down
the left side of Fritz’s jacket and the jacket’s outer pocket. Sergeant Watkins
then patted down the interior pocket and felt a long cylindrical object with a
bulbous end that Sergeant Watkins believed, based on his training and
experience, to be a pipe used to ingest methamphetamine. Sergeant Watkins
removed the “longer cylindrical object” and also found and removed a “smaller
cylindrical object with a bulbous end” that Sergeant Watkins also believed to be
a methamphetamine pipe. (Tr. at 101). Sergeant Watkins asked Fritz how he
had used the pipes, and Fritz told Sergeant Watkins that he had used the pipes
to smoke tobacco and synthetic drugs. Sergeant Watkins also patted down
Fritz’s front pants pockets and felt objects inside the pockets, but Sergeant
Watkins did not remove the objects.
[6] To determine Fritz’s mental state, Sergeant Watkins asked Fritz if he knew who
was President; the day of the week; and the current year. Fritz told Sergeant
Watkins that Kennedy was the president and provided incorrect answers to the
other two questions. One of the medics asked Fritz what drugs he had taken,
and Fritz responded, “[a]nything and everything.” (Tr. at 106).
[7] Sergeant Watkins already had determined that Fritz was under arrest for
possession of paraphernalia based on finding what he believed to be
methamphetamine pipes in Fritz’s pocket. However, because Sergeant Watkins
was concerned that Fritz might have sustained a head injury and would need to
Court of Appeals of Indiana | Opinion 22A-CR-2340| November 13, 2023 Page 4 of 22
be medically cleared before going to jail, Fritz was transported by ambulance to
Elkhart General Hospital for evaluation.
[8] After Fritz had arrived at the hospital and had been placed in a room, Sergeant
Watkins continued his search of Fritz’s person, this time incident to Fritz’s
arrest. Sergeant Watkins searched Fritz’s right front pants pocket and found a
black mask that contained a plastic baggy with a white crystal-like substance
5
inside, later tested and determined to be 3.04 grams of methamphetamine.
When Sergeant Watkins found the methamphetamine, Fritz became upset,
began to yell obscenities, and tried to get out of the hospital bed. Fritz tried to
resist the search and “pull[] away” from Sergeant Watkins. (Tr. at 112-113).
Fritz threatened to kill Sergeant Watkins and attempted to kick the attending
hospital personnel.
[9] Sergeant Watkins physically restrained Fritz, handcuffed him to the hospital
bed, and continued to search Fritz’s person and the pockets of his clothing.
Sergeant Watkins eventually found in the left pocket of Fritz’s jacket two hand-
rolled cigarettes that contained a green leafy substance that had the “smell of
marijuana.” (Tr. at 115). Sergeant Watkins later field-tested the cigarettes and
determined that the substance inside contained THC, the “active ingredient in
marijuana.” (Tr. at 120).
5
Sergeant Watkins found a clear container in Fritz’s left front pants pocket containing a white crystal-like
substance. For reasons not apparent from the record, that substance was not lab-tested.
Court of Appeals of Indiana | Opinion 22A-CR-2340| November 13, 2023 Page 5 of 22
[10] Hospital personnel sedated Fritz, and Fritz eventually fell asleep. After Fritz
awoke, Sergeant Watkins gave him a Miranda warning and asked Fritz if the
cigarettes contained a synthetic substance or marijuana. Fritz answered,
“[M]arijuana.” (Tr. at 116). Sergeant Watkins then asked Fritz if the crystal-
like substance he had found was methamphetamine, and Fritz stated that it
was. After Fritz had been medically cleared to leave the hospital, Sergeant
Watkins transported Fritz to jail.
[11] In February 2021, the State charged Fritz with Level 6 felony possession of
methamphetamine, Class A misdemeanor resisting law enforcement, Class B
misdemeanor possession of marijuana, and Class C misdemeanor possession of
paraphernalia. In August 2021, Fritz filed a motion to suppress the evidence
obtained during the patdown search. The trial court held a hearing on the
motion to suppress on October 25, 2021. The following day, the trial court
issued its order denying Fritz’s motion, and the matter proceeded to a jury trial
held on August 15, 2022.
[12] During Sergeant Watkins’ testimony at trial, Fritz objected to the admission of
the evidence obtained during Sergeant Watkins’ patdown search of his person.
The trial court overruled the objection. At the conclusion of the trial, the jury
6
found Fritz guilty on all counts.
6
Following the jury’s finding of guilt on the underlying offense of Class B misdemeanor possession of
marijuana, Fritz pled guilty to the enhanced offense of Class A misdemeanor possession of marijuana with a
prior conviction for a drug offense.
Court of Appeals of Indiana | Opinion 22A-CR-2340| November 13, 2023 Page 6 of 22
[13] On September 15, 2022, the trial court sentenced Fritz as follows: 912 days for
the Level 6 felony possession of methamphetamine conviction; 365 days for the
Class A misdemeanor resisting law enforcement conviction; 180 days for the
Class A misdemeanor possession of marijuana conviction; and 60 days for the
Class C misdemeanor possession of paraphernalia conviction. The trial court
ordered the sentences to run concurrently but suspended all of the time to
probation.
[14] Fritz now appeals.
Decision
[15] Fritz argues that: (1) the trial court abused its discretion in admitting evidence
seized from a patdown search and a subsequent search incident to Fritz’s arrest
because the searches violated his constitutional rights; and (2) there was
insufficient evidence to support Fritz’s possession of marijuana conviction. We
will review each argument in turn.
1. Admission of Evidence
[16] Fritz argues that the trial court abused its discretion when it admitted the
evidence obtained from the patdown search and the subsequent search incident
to Fritz’s arrest because the searches were conducted in violation of his
constitutional rights. We note that Fritz appeals following a completed trial.
Thus, his appeal “is best framed as challenging the admission of evidence at
trial[,]” rather than a denial of a motion to suppress. Clark v. State, 994 N.E.2d
252, 259 (Ind. 2013). We review the admission of evidence for an abuse of
Court of Appeals of Indiana | Opinion 22A-CR-2340| November 13, 2023 Page 7 of 22
discretion, which occurs only when the admission is clearly against the logic
and effect of the facts and circumstances and the error affects a party’s
substantial rights. Id. at 260. “We neither reweigh the evidence nor reevaluate
the witnesses’ credibility; rather, we view the evidence in the light most
favorable to the [judgment], and we will affirm that [judgment] unless we
cannot find substantial evidence of probative value to support it.” Pierce v. State,
29 N.E.3d 1258, 1265 (Ind. 2015). However, whether the facts establish a
constitutional violation is a question of law that we review de novo. See, e.g.,
Pinner v. State, 74 N.E.3d 226, 229 (Ind. 2017).
[17] Fritz argues that Sergeant Watkins’ patdown of his person violated his right to
be free from unreasonable searches under both the Fourth Amendment to the
United States Constitution and Article 1, Section 11, of the Indiana
Constitution. Although the Fourth Amendment and Article 1, Section 11,
contain parallel language, each requires a separate, independent analysis.
Marshall v. State, 117 N.E.3d 1254, 1258 (Ind. 2019). The State asserts that
Fritz waived his state constitutional challenge to the search of his person when
he failed to include a separate Indiana constitutional analysis in his motion to
suppress; failed to specifically argue at the suppression hearing that the search
violated the Indiana Constitution; and failed to argue a violation of the Indiana
Constitution when he objected to the admission of the challenged evidence
during the jury trial. And we note that while Fritz references and cites to
Article 1, Section 11 of the Indiana Constitution in his appellate brief, he does
not articulate a separate argument under the Indiana Constitution.
Court of Appeals of Indiana | Opinion 22A-CR-2340| November 13, 2023 Page 8 of 22
Accordingly, Fritz’s state constitutional claim is waived. See, e.g., Redfield v.
State, 78 N.E.3d 1104, 1108 (Ind. Ct. App. 2017) (finding the defendant waived
an Article 1, Section 11, claim where his arguments in the trial court mentioned
the state constitutional claim but did not provide any independent analysis for
it) (citing Wilkins v. State, 946 N.E.2d 1144, 1147 (Ind. 2011), reh’g denied), trans.
denied; see also Abel v. State, 773 N.E.2d 276, 278 n.1 (Ind. 2002) (“Because Abel
presents no authority or independent analysis supporting a separate standard
under the state constitution, any state constitutional claim is waived.”).
Therefore, we address Fritz’s claim under the Fourth Amendment alone.
Patdown Search
[18] Fritz argues that the evidence obtained as a result of the patdown search, as
well as the subsequent search incident to Fritz’s arrest, should have been
suppressed and should not have been admitted at trial. According to Fritz, the
patdown search was improper because there was “no indication that [police]
officers arriving [at the grocery store parking lot] would be encountering an
individual [who was] armed and dangerous[,]” thus, the patdown search was
“unreasonable[.]” (Fritz’s Br. 17). The State argues that the patdown search
was lawful under the Fourth Amendment because it was performed for the
safety of the medical personnel tending to Fritz, who was found “disoriented
and lying on the ground in the middle of a parking lot on a cold winter day.”
(State’s Br. 10).
[19] The Fourth Amendment states that:
Court of Appeals of Indiana | Opinion 22A-CR-2340| November 13, 2023 Page 9 of 22
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.
U.S. CONST. AMEND. IV.
[20] “The fundamental purpose of the Fourth Amendment to the United States
Constitution is to protect the legitimate expectations of privacy that citizens
possess in their persons, their homes, and their belongings.” Taylor v. State, 842
N.E.2d 327, 330 (Ind. 2006). This protection has been “extended to the states
through the Fourteenth Amendment.” Bradley v. State, 54 N.E.3d 996, 999
(Ind. 2016). “As a deterrent mechanism, evidence obtained in violation of this
rule is generally not admissible in a prosecution against the victim of the
unlawful search or seizure absent evidence of a recognized exception.” Clark,
994 N.E.2d at 260. “When a search is conducted without a warrant, the State
has the burden of proving that an exception to the warrant requirement existed
at the time of the search.” Bradley, 54 N.E.3d at 999 (quotation marks and
citations omitted).
[21] One such exception relevant to the circumstances in this case is that the law
enforcement officer had “an objectively reasonable basis for believing that
medical assistance was needed, or persons were in danger[.]” Michigan v. Fisher,
558 U.S. 45, 49, 130 S. Ct. 546, 549, 175 L. Ed. 2d 410 (2009) (internal
quotations omitted). See also Mincey v. Arizona, 437 U.S. 385, 392, 98 S. Ct.
Court of Appeals of Indiana | Opinion 22A-CR-2340| November 13, 2023 Page 10 of 22
2408, 2413, 57 L. Ed. 2d 290 (1978) (“Numerous state and federal cases have
recognized that the Fourth Amendment does not bar police officers from
making warrantless entries and searches when they reasonably believe that a
person within is in need of immediate aid.”) (footnotes omitted). Our Courts
have recognized this emergency aid exception, see M.O. v. State, 63 N.E.3d 329,
332 (Ind. 2016), but have yet to apply the exception to a search of a person.
[22] In M.O., the emergency aid exception was recognized under circumstances
where an officer responded to a report that a woman was trapped under her car.
That report raised a reasonable concern that emergency medical assistance was
needed and prompted further investigation. However, the investigation did not
objectively support that concern. M.O. was not under her vehicle or even at the
gas station when the officers arrived. While it was not unreasonable for the
officer to look for her, the officer noted that she operated her vehicle normally
and was not observed committing any traffic infractions or criminal conduct.
[23] Our supreme court in M.O. stated that the test for applying the emergency aid
exception was objective and that the government must establish that the
circumstances as they appeared at the moment would lead a reasonable,
experienced law enforcement officer to believe that someone inside the vehicle
required immediate assistance. 63 N.E.3d at 333. The Court concluded that
the State had failed to carry its burden of showing that an exception to the
warrant requirement of the Fourth Amendment justified the stop. Accordingly,
the Court reversed M.O.’s conviction. Id.
Court of Appeals of Indiana | Opinion 22A-CR-2340| November 13, 2023 Page 11 of 22
[24] However, in Vauss v. United States, 370 F.2d 250, 251-252 (D.C. Cir. 1966) (per
curiam), a case we find instructive, the emergency aid exception was extended
to the warrantless search of a person. In Vauss, police officers found a man
lying unconscious on a public street. Unable to rouse him, the police called for
an ambulance. As they waited for the ambulance to arrive, one of the officers
searched the defendant’s pockets for identification but, instead, found narcotics.
The United States Court of Appeals for the District of Columbia Circuit
declined to suppress the evidence. The Court held that the narcotics were
legally seized, finding that “[a] search of one found in an unconscious condition
is both legally permissible and highly necessary.” Id. at 252.
[25] In the instant case, the circumstances leading to the patdown of Fritz’s person
and resulting in the seizure of the pipes, are similar to the circumstances in
Vauss. On a cold day in January, Sergeant Watkins responded to a call
regarding a medical emergency in a grocery store parking lot. Sergeant
Watkins found Fritz lying on his back in the middle of the parking lot. Fritz
told Sergeant Watkins that he “must have [fallen].” (Tr. at 98). When Sergeant
Watkins asked Fritz if he had ingested any drugs, Fritz’s response of “no” was
“slow[,] long, [and] drawn out.” (Tr. at 98). Sergeant Watkins testified that
“[c]ommonly[,] with unknown [medical issues,] when we are dispatched to
them, a common cause . . . [o]ften times . . . is a drug or alcohol related issue.”
(Tr. at 98). Sergeant Watkins performed a patdown search of Fritz for his
safety and the safety of the paramedics so that the medics would not be harmed
Court of Appeals of Indiana | Opinion 22A-CR-2340| November 13, 2023 Page 12 of 22
when they administered treatment, in the event Fritz later suffered “some type
of psychiatric issue[.]” (Tr. at 99).
[26] The protective patdown search that Sergeant Watkins performed before Fritz
was transported to the hospital in the ambulance was limited to a search for
weapons and/or items that might harm Sergeant Watkins or the paramedics as
they administered treatment to Fritz. Under such circumstances, Sergeant
Watkins had an objectively reasonable basis to believe that Fritz might need
medical assistance, and it was not unreasonable for the sergeant to be
concerned about his safety and the safety of the attending paramedics when
they rendered assistance to Fritz. Thus, we do not believe the patdown search
of Fritz’s person performed by a concerned police officer violates Fritz’s Fourth
7
Amendment rights.
[27] Therefore, we conclude that the State has carried its burden of showing an
exception to the warrant requirement to justify the patdown search. We also
conclude that the search was permissible under the emergency aid exception to
the Fourth Amendment because it was reasonable for Sergeant Watkins to
7
See, e.g., State v. Smith, 59 Kan. App. 2d 28, 476 P.3d 847 (2020), rev. denied. In Smith, officers were
dispatched to check on Smith, who had apparently fallen asleep in her car parked in someone else’s
driveway. After failing to rouse Smith, the officers removed her from the car, but she remained largely
unresponsive and appeared to be suffering from an overdose. When emergency personnel arrived at the
scene, an officer searched Smith’s purse, looking for her identification and any information about substances
she may have ingested. Under these circumstances, the Court found that the officer’s belief that Smith’s life
or safety was in immediate danger because of a potential overdose was objectively reasonable, satisfying the
first prong of the emergency aid exception (that is, whether the officers reasonably believe the search was
necessary to provide emergency assistance) and upholding the search of Smith’s purse. 59 Kan. App. 2d at
36-38, 476 P.3d at 853-854.
Court of Appeals of Indiana | Opinion 22A-CR-2340| November 13, 2023 Page 13 of 22
8
believe that Fritz needed medical attention. Therefore, we hold that the trial
court properly admitted into evidence the methamphetamine pipes found on
Fritz’s person as a result of the patddown search.
[28] Fritz also argues that, even if the patdown was proper, the removal of the
methamphetamine pipes from his pocket was improper. We disagree. The
United States Supreme Court recognized a plain-feel exception to the warrant
requirement in Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S. Ct. 2130, 2137,
124 L. Ed. 2d 334 (1993). The Supreme Court explained in Dickerson that
[i]f a police officer lawfully pats down a suspect’s outer clothing
and feels an object whose contour or mass makes its identity
immediately apparent, there has been no invasion of the suspect’s
privacy beyond that already authorized by the officer’s search for
weapons; if the object is contraband, its warrantless seizure
would be justified by the same practical considerations that
inhere in the plain-view context.
Id. at 375-76, 113 S. Ct. at 2137.
[29] In determining the admissibility of contraband seized without a warrant under
the “plain feel” doctrine, two issues are dispositive: (1) whether the contraband
was detected during an initial patdown for weapons rather than during a further
search; and (2) whether the identity of the contraband was immediately
apparent to the officer. Patterson v. State, 958 N.E.2d 478, 487 (Ind. Ct. App.
8
As an appellate court, we will sustain the trial court if it can be done on any legal ground apparent in the
record. Ratliff v. State, 770 N.E.2d 807, 809 (Ind. 2002).
Court of Appeals of Indiana | Opinion 22A-CR-2340| November 13, 2023 Page 14 of 22
2011) (quoting Wright v. State, 766 N.E.2d 1223, 1233 (Ind. Ct. App. 2002)).
The phrase “immediately apparent” does not mean that an officer must be
certain about the object’s identity; rather, an officer must “have probable cause
to believe that the item is contraband before seizing it[.]” Dickerson, 508 U.S. at
376, 113 S. Ct. at 2137.
[30] Sergeant Watkins’ testimony demonstrates that it was immediately apparent to
him that the object he felt in Fritz’s pocket was contraband. Sergeant Watkins
testified that he had been involved in “well over 100” drug-related cases and
affirmed that he had experience with “various types of paraphernalia, including
pipes.” (Tr. at 96). He testified that when he patted down Fritz’s jacket and the
jacket’s outer and inner pockets, he “felt a long, cylindrical object with a
bulbous end which is essentially a meth[amphetamine] pipe.” (Tr. at 100).
Sergeant Watkins further testified that “[t]hrough [his] training and
experience,” he had realized that when he felt the object, it was a “hard object,”
“a distinct object,” and was “used commonly to ingest illegal drugs into the
body.” (Tr. at 100).
[31] The methamphetamine pipe’s identity was immediately apparent to Sergeant
Watkins based on its shape and consistency. Therefore, Sergeant Watkins’
warrantless seizure of the pipe was permissible under the plain feel doctrine.
Search Incident to Arrest
[32] Fritz also challenges the search that Sergeant Watkins conducted at the hospital
that resulted in the seizure of the methamphetamine and the marijuana
Court of Appeals of Indiana | Opinion 22A-CR-2340| November 13, 2023 Page 15 of 22
cigarettes. Another exception to the warrant requirement is a search incident to
a lawful arrest. Wilkinson v. State, 70 N.E.3d 392, 403 (Ind. Ct. App. 2017). An
officer may conduct a warrantless search of an arrestee’s person and the area in
the person’s immediate control if the officer has probable cause to make an
arrest. Id. “Probable cause for an arrest exists if at the time of the arrest the
officer has knowledge of facts and circumstances which would warrant a man
of reasonable caution to believe that the suspect has committed the criminal act
in question.” Id. A suspect is considered under arrest when a police officer
interrupts his freedom and restricts his liberty of movement. Fentress v. State,
863 N.E.2d 420, 423 (Ind. Ct. App. 2007). The fact that a police officer does
not inform a defendant he is under arrest prior to a search does not invalidate
the search incident to arrest exception as long as there is probable cause to
make an arrest. Id.[33] We have already determined that the removal of the pipes from Fritz’s pocket
was permissible. Once Sergeant Watkins discovered the pipes that he believed
were used to consume methamphetamine, he had probable cause to arrest Fritz
for possession of paraphernalia. See IND. CODE § 35-48-4-8.3. Sergeant
Watkins testified that, at that point, he had determined that Watkins was under
arrest for possession of paraphernalia, but out of caution, had Fritz transported
to the hospital for evaluation. The search Sergeant Watkins performed at the
hospital incident to Fritz’s arrest resulted in Sergeant Watkins finding the
methamphetamine in Fritz’s pants pocket and the marijuana cigarettes in
Fritz’s jacket pocket. Sergeant Watkins’ discovery of the methamphetamine
Court of Appeals of Indiana | Opinion 22A-CR-2340| November 13, 2023 Page 16 of 22
and the marijuana cigarettes in Fritz’s pockets did not violate the Fourth
Amendment. Therefore, the trial court properly admitted the evidence.
[34] In sum, the patdown search, the removal of the methamphetamine pipes under
the plain feel doctrine, and the search incident to Fritz’s arrest that resulted in
the discovery of the methamphetamine and the marijuana cigarettes, are
exceptions to the warrant requirement of the Fourth Amendment. The
evidence obtained was properly admitted at trial.
2. Sufficiency of the Evidence
[35] Next, Fritz challenges the sufficiency of the evidence for his possession of
marijuana conviction. He contends that there was insufficient evidence to
support the conviction because the State failed to prove the percentage of the
THC concentration in what the State alleged was marijuana in the cigarettes.
He argues, essentially, that evidence of the THC concentration was essential so
the factfinder could reasonably distinguish between marijuana, which is illegal
to possess, and hemp, which is legal.
[36] Our standard of review for sufficiency of evidence claims is well-settled. We do
not assess the credibility of the witnesses or reweigh the evidence in
determining whether the evidence is sufficient. Drane v. State, 867 N.E.2d 144,
146 (Ind. 2007). We consider only the probative evidence and reasonable
inferences supporting the verdict. Id. Reversal is appropriate only when no
reasonable factfinder could find the elements of the crime proven beyond a
reasonable doubt. Id.Court of Appeals of Indiana | Opinion 22A-CR-2340| November 13, 2023 Page 17 of 22
[37] In order to convict Fritz of possession of marijuana, the State was required to
prove that he: (1) knowingly or intentionally; (2) possessed; (3) marijuana, pure
or adulterated. I.C. § 35-48-4-11(a)(1). “Marijuana” is defined by statute 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.” I.C. § 35-48-1-19(a). Importantly, however,
“[t]he term [marijuana] does not include: . . . hemp (as defined by IC 15-15-13-
6).” I.C. § 35-48-1-19(b)(6). “Hemp” is in turn defined as:
the plant Cannabis sativa L. and any part of that plant, including
the seeds thereof and all derivatives, extracts, cannabinoids,
isomers, acids, salts, and salts of isomers, whether growing or
not, with a delta-9-tetrahydrocannabinol concentration of not
more than three-tenths of one percent (0.3%) on a dry weight
basis, for any part of the Cannabis sativa L. plant.
I.C. § 15-15-13-6 (emphasis added). “Accordingly, in Indiana, the difference
between a legal substance, such as hemp, and illegal marijuana is determined by
the concentration of delta-9-THC in a particular substance: to be illegal, the
concentration of delta-9-THC must be more than 0.3%.” Rojo v. State, 202
N.E.3d 1085, 1088 (Ind. Ct. App. 2022), trans. denied. See also Fedij v. State, 186
N.E.3d 696, 708 (Ind. Ct. App. 2022) (“[A]s a matter of Indiana law, the
difference between legal hemp and illegal marijuana is determined by the
percent concentration of THC in a particular substance: to be illegal, the
percent concentration of THC must be more than 0.3%”).
Court of Appeals of Indiana | Opinion 22A-CR-2340| November 13, 2023 Page 18 of 22
[38] In support of Fritz’s argument that his possession of marijuana conviction
cannot stand because the State failed to prove the percentage of the THC
concentration of the substance found in the cigarettes, Fritz cites both Fedij and
Rojo. In Fedij, a panel of this court reversed Fedij’s conviction for possession of
marijuana due to the State’s failure to prove that the seized substance was
illegal marijuana, as opposed to legal hemp. At Fedij’s trial, the State’s
witnesses “were unequivocal in their testimony that they had no way to
distinguish any of the substances between hemp and marijuana absent a test for
the percent concentration of THC.” Fedij, 186 N.E.3d at 708.
[39] In Rojo, another panel of this court reversed Rojo’s conviction for possession of
marijuana based on insufficient evidence to establish that the substance found
on Rojo’s person was illegal marijuana with a THC concentration of 0.3% or
more. At Rojo’s trial, the officer had testified that he knew the substance that
was seized from Rojo was marijuana due to markers regarding sight and smell.
However, applying the reasoning in Fedij, we held that “the State presented no
evidence from which a reasonable factfinder could conclude that the substance
seized from Toledo Rojo was in fact marijuana and not a similar-smelling or -
looking substance that is not illegal in Indiana.” Rojo, 202 N.E.3d at 1089.
[40] In the case before us, the State introduced evidence indicating that based on a
field test, the substance in the cigarettes tested positive for the presence of THC.
Sergeant Watkins testified that based on his experience, the green leafy
substance in the cigarettes had the “smell of marijuana.” (Tr. at 115).
Court of Appeals of Indiana | Opinion 22A-CR-2340| November 13, 2023 Page 19 of 22
However, the State did not present any evidence of the delta-9-THC
concentration in the cigarettes.
[41] Our General Assembly has established a clear distinction between legal hemp
and illegal marijuana based on the THC concentration present in the plant
9
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. Here, the State failed to
present any evidence of the delta-9 THC concentration of the substance in the
cigarettes found on Fritz’s person. Consequently, and as we found in Fedij, the
State has presented “no evidentiary basis from which a reasonable fact-finder
could conclude that the [substance in the cigarettes was] in fact marijuana and
not hemp.” Fedij, 186 N.E.3d at 709. Thus, the evidence presented at Fritz’s
trial was insufficient for the jury to conclude that the cigarettes found on Fritz’s
person contained marijuana and not a legal substance.
[42] Regarding Fritz’s post-Miranda admission – that the substance in the cigarettes
was marijuana – said admission does not alter our determination that the
evidence was insufficient to sustain Fritz’s possession of marijuana conviction.
Fritz’s admission was a nonjudicial confession, and it is well-settled that a
person may not be convicted of a crime based solely on a nonjudicial confession
of guilt. Shinnock v. State, 76 N.E.3d 841, 843 (Ind. 2017) (citing Green v. State,
9
See I.C. §§ 35-48-1-19(a), 15-15-13-6.
Court of Appeals of Indiana | Opinion 22A-CR-2340| November 13, 2023 Page 20 of 22
304 N.E.2d 845, 848 (Ind. Ct. App. 1973)). Rather, there must be independent
proof of the corpus delicti before the defendant may be convicted upon a
nonjudicial confession. Id. “Proof of the corpus delicti means ‘proof that the
specific crime charged has actually been committed by someone[.]’” Shinnock,
76 N.E.3d at 843 (quoting Walker v. State, 249 Ind. 551, 559, 233 N.E.2d 483,
488 (Ind. 1968)). We have determined that, in the instant case, the State failed
to present sufficient evidence to show that Fritz possessed marijuana and not a
legal substance. The only evidence presented to show that the substance was,
in fact, marijuana was Sergeant Watkins’ opinion testimony, based on his
experience, and the results of a field test showing that the substance contained
THC. Therefore, we reverse Fritz’s Class A misdemeanor possession of
marijuana conviction.
[43] Based on the foregoing, we hold that the trial court did not abuse its discretion
when it admitted into evidence the methamphetamine pipes found during the
patdown search and the marijuana cigarettes found during the search incident
to Fritz’s arrest. We further hold that the State failed to present sufficient
evidence to sustain Fritz’s conviction for possession of marijuana. Accordingly,
we affirm in part, reverse in part, and remand with instructions for the trial
court to vacate Fritz’s conviction and sentence for the Class A misdemeanor
possession of marijuana conviction.
Court of Appeals of Indiana | Opinion 22A-CR-2340| November 13, 2023 Page 21 of 22
[44] Affirmed in part, reversed in part, and remanded with instructions.
Vaidik, J., and Mathias, J., concur.
Court of Appeals of Indiana | Opinion 22A-CR-2340| November 13, 2023 Page 22 of 22