Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
                                                                 FILED
                                                              Jun 20 2012, 9:14 am
collateral estoppel, or the law of the case.
                                                                      CLERK
                                                                    of the supreme court,
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ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

BERNICE A. N. CORLEY                                 GREGORY F. ZOELLER
Marion County Public Defender Agency                 Attorney General of Indiana
Indianapolis, Indiana
                                                     GEORGE P. SHERMAN
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

BAKARI EDWARDS,                        )
                                       )
       Appellant,                      )
                                       )
               vs.                     )       No. 49A02-1111-CR-1006
                                       )
STATE OF INDIANA,                      )
                                       )
       Appellee.                       )


                      APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Theresa Hall, Commissioner
                              Cause No. 49F24-1010-FD-82344


                                           June 20, 2012

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       Bakari Edwards (“Edwards”) was convicted of Class D felony obstruction of

justice, Class A misdemeanor possession of marijuana, and driving while suspended as an

infraction. Edwards appeals his convictions and raises two issues:

       I. Whether his convictions for obstruction of justice and possession of marijuana

       violate double jeopardy principles; and,

       II. Whether Edwards was improperly ordered to serve a term of imprisonment for

       an infraction.

       We affirm in part, reverse in part, and remand for proceedings consistent with this

opinion.

                              Facts and Procedural History

       On October 28, 2010, Indianapolis Metropolitan Police Department Officer James

Hurt (“Officer Hurt”) initiated a traffic stop of a vehicle after determining that the license

plate was not registered to the vehicle. Edwards, the vehicle’s driver, gave the officer an

Indiana Identification Card after the officer requested his driver’s license. Officer Hurt

then determined that Edwards’s license was suspended.

       As the officer returned to the driver’s side of the vehicle, he observed Edwards

repeatedly reaching towards his pockets and the vehicle’s center console. Officer Hurt

also smelled the odor of raw marijuana in the vehicle. The officer then asked Edwards to

exit the vehicle and performed a quick patdown search.

       As Officer Hurt continued to speak to Edwards, he had a hard time understanding

Edwards’s responses because he was mumbling. And the raw odor of marijuana became

stronger as Edwards spoke. Therefore, Officer Hurt ordered Edwards to open his mouth.

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Edwards had a substantial amount of raw marijuana in his mouth. The officer then asked

Edwards what he was chewing on and Edwards replied, “I’m chewing and trying to

swallow this marijuana.” Tr. p. 78. Edwards was ordered to spit out the marijuana, he

refused, and eventually swallowed it.

      Edwards was arrested and placed in Officer Hurt’s vehicle. The officer then had a

discussion with another officer about the potential criminal charges and mentioned

possession of marijuana. Edwards interjected and said, “you guys can’t charge me with

anything because you don’t have the evidence.” Tr. p. 79.

      Edwards was subsequently charged with Class D felony obstruction of justice,

Class A misdemeanor possession of marijuana, and Class A misdemeanor driving while

suspended. A jury trial was held on August 30, 2011, and the jury found Edwards guilty

as charged. But the trial court entered a conviction for the driving while suspended

charge as an infraction, not as a misdemeanor. Tr. p. 168. On October 18, 2011,

Edwards was ordered to serve an aggregate sentence of 730 days, with 365 days executed

to be served on home detention. Edwards now appeals. Additional facts will be provided

as necessary.

                                  I. Double Jeopardy

      Article 1, Section 14 of the Indiana Constitution reads in pertinent part, “No

person shall be put in jeopardy twice for the same offense.” Edwards argues that his

convictions for possession of marijuana and obstruction of justice violate the

constitutional prohibition against double jeopardy under the actual evidence test

established by our supreme court in Richardson v. State, 717 N.E.2d 32, 53 (Ind.1999).

                                           3
       The Richardson court provided the following guidance for applying the actual

evidence test:

       Under this inquiry the actual evidence presented at trial is examined to
       determine whether each challenged offense was established by separate and
       distinct facts. To show that two challenged offenses constitute the “same
       offense” in a claim of double jeopardy, a defendant must demonstrate a
       reasonable possibility that the evidentiary facts used by the fact-finder to
       establish the essential elements of one offense may also have been used to
       establish the essential elements of a second challenged offense.

Id. (footnote omitted).

       Our courts must identify the essential elements of each of the challenged offenses

and evaluate the evidence from the jury’s perspective. Lee v. State, 892 N.E.2d 1231,

1234 (Ind. 2008). “In determining the facts used by the fact-finder to establish the

elements of each offense, it is appropriate to consider the charging information, jury

instructions, and arguments of counsel.” Id. A “‘reasonable possibility’ turns on a

practical assessment of whether the jury may have latched on to exactly the same facts

for both convictions.” Id. at 1236. Finally, “the Indiana Double Jeopardy Clause is not

violated when the evidentiary facts establishing the essential elements of one offense also

establish only one or even several, but not all, of the essential elements of a second

offense.” Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002).

       Edwards was charged with Class D felony obstruction of justice for “knowingly or

intentionally” damaging, altering, or removing any thing, i.e. marijuana, “with the intent

to prevent it from being produced or used as evidence in any official proceeding or

investigation.” Appellant’s App. p. 20. He was also charged with knowingly possessing

marijuana as a Class A misdemeanor. Id. at 21.

                                            4
       At trial, Officer Hurt testified that he smelled the odor of raw marijuana in

Edwards’s vehicle prior to asking him to exit the vehicle.          The assisting officer,

Indianapolis Police Department Officer Michael Skeens, testified that after Edwards

exited the vehicle, the officer noted the “strong odor of . . . raw marijuana coming from

[Edwards’s] clothing and his breath[.]” Tr. p. 106. Edwards was then asked to open his

mouth and both officers observed a green, leafy substance which they identified through

their training and experience as raw marijuana. Tr. pp. 77, 107. This evidence was

sufficient to prove possession of marijuana.

       Moreover, the jury was instructed that the State was not required to “introduce the

subject contraband to obtain a conviction for . . . possession.” Appellant’s App. p. 66.

The following instruction was also tendered to the jury: “The opinion of someone

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

circumstantial evidence in order to obtain a conviction on a controlled substance[.]” Id.

at 67. After receiving these instructions, it is reasonably probable that the jury relied on

the officers’ identification of the marijuana in Edwards’s mouth to conclude that he

knowingly possessed the marijuana at issue.

       After the officers determined that Edwards had a mouthful of raw marijuana,

Officer Hurt asked Edwards what he was chewing on, to which he replied, “I’m chewing

and trying to swallow this marijuana.” Tr. p. 78. The officer then ordered him to spit it

out, and Edwards refused. He eventually swallowed the marijuana. While the officers

discussed whether Edwards might be charged with possession of marijuana, Edwards

interjected, “You guys can’t charge me with anything because you don’t have the

                                               5
evidence.”      Tr. p. 79.      This separate and distinct evidence is sufficient to prove

obstruction of justice.

        Under these facts and circumstances, we conclude that Edwards’s convictions for

Class D felony obstruction of justice and Class A misdemeanor possession of marijuana

do not run afoul of the principles of Indiana’s Double Jeopardy Clause.

                               II. The Class A Infraction Sentence

        Edwards was charged with driving while suspended as a Class A misdemeanor,

and the jury found him guilty as charged. However, after observing that the judgment of

conviction for Edwards’s license suspension was not admitted into evidence, the trial

court sua sponte entered a judgment on the driving while suspended charge as a Class A

infraction instead of a Class A misdemeanor.1 Tr. p. 168.

        However, during the sentencing hearing, the trial court improperly ordered

Edwards to serve a concurrent term of 365 days with 361 days suspended for the Class A

infraction. Indiana Code section 33-23-1-6 provides that an infraction is a violation of a

statute “for which a person may be fined but not imprisoned.” And Indiana Code section

34-28-5-4 provides for maximum fines or judgments for each class of infraction. The

State concedes that the trial court improperly ordered Edwards to serve a term of

imprisonment for the Class A infraction.
1
  In deciding to enter the judgment of conviction as an infraction, the trial court made reference to a Court
of Appeals decision reversing the same trial court for entering a judgment of conviction on a Class A
misdemeanor driving while suspended charge where the State failed to submit the prior judgment
suspending the defendant’s license, but relied solely on the BMV driving record, as the State did in this
case. It appears the trial court was referring to our memorandum decision in Warren v. State, No. 49A02-
1009-CR-997 (Ind. Ct. App. June 3, 2011), trans. denied, wherein we remanded the case to the trial court
to vacate the Class A misdemeanor conviction and enter the lesser-included “Class A infraction in its
place.”

                                                     6
       We therefore remand this case to the trial court to correct its order of judgment of

conviction and its abstract of judgment to vacate the term of imprisonment imposed on

Edwards for Class A infraction driving while suspended.

                                       Conclusion

       Edwards’s Class D felony obstruction of justice and Class A misdemeanor

possession of marijuana convictions do not violate double jeopardy principles. However,

the trial court erred when it ordered Edwards to serve a term of imprisonment for a Class

A infraction.

       Affirmed in part, reversed in part, and remanded for proceedings consistent with

this opinion.

ROBB, C.J., and BAILEY, J., concur.




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