      MEMORANDUM DECISION
                                                                          Apr 29 2015, 9:09 am
      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,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Kimberly A. Jackson                                       Gregory F. Zoeller
      Indianapolis, Indiana                                     Attorney General of Indiana
                                                                Brian Reitz
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Dwight Patton,                                            April 29, 2015

      Appellant-Defendant,                                      Court of Appeals Cause No.
                                                                60A01-1403-CR-115
              v.                                                Appeal from the Owen Circuit Court
                                                                Lower Court Cause No.
      State of Indiana,                                         60C01-1107-FD-417
                                                                The Honorable Lori Thatcher
      Appellee-Plaintiff.
                                                                Quillen, Judge




      Pyle, Judge.


                                     Statement of the Case
[1]   Appellant/Defendant, Dwight Patton (“Patton”), appeals his conviction for

      Class D felony possession of marijuana in an amount greater than thirty (30)



      Court of Appeals of Indiana | Memorandum Decision 60A01-1403-CR-115 | April 29, 2015       Page 1 of 18
      grams.1 His conviction was based on marijuana seized from his barn, a patch

      beside his barn, and a wagon beside his house. On appeal, he does not

      challenge the trial court’s admission of the marijuana found in the patch or

      wagon but argues that the trial court abused its discretion in admitting the

      marijuana seized from his barn because the seizure resulted from a search that

      he claims violated his constitutional rights under the United States and Indiana

      Constitutions. He also argues that the State did not produce sufficient evidence

      that the weight of the marijuana supporting his conviction exceeded thirty (30)

      grams, as was required to convict him of a Class D felony rather than a Class A

      misdemeanor. We conclude that the search of Patton’s barn and seizure of the

      marijuana did not violate Patton’s rights under the United States Constitution

      because there were exigent circumstances and the marijuana was in plain view.

      The search and seizure also did not violate the Indiana Constitution because the

      State troopers’ actions were reasonable. Finally, we conclude that there was

      sufficient evidence that Patton possessed more than thirty (30) grams of

      marijuana.


[2]   We affirm.


                                                       Issues
[3]   1. Whether the trial court abused its discretion in admitting evidence.




      1
       IND. CODE § 35-48-4-11(1). We note that, effective July 1, 2014, a new version of this statute was enacted
      and Patton’s offense would now qualify as Class B misdemeanor. However, because Patton committed his
      offense in 2011, we will apply the statute in effect at that time.

      Court of Appeals of Indiana | Memorandum Decision 60A01-1403-CR-115 | April 29, 2015             Page 2 of 18
[4]   2. Whether the State produced sufficient evidence that Patton possessed more
      than thirty (30) grams of marijuana.

                                                         Facts
[5]   On July 14, 2011, Indiana State Police (“ISP”) troopers Tim Cummins

      (“Trooper Cummins”), Kurt Feather (“Trooper Feather”), Jason Kempf

      (“Trooper Kempf”), and Larry Annick (“Trooper Annick”), who are troopers

      in the ISP Marijuana Eradication Program, flew over Central Indiana in a

      helicopter trying to spot outdoor marijuana cultivation. They were heading to

      Hulman Field in Terre Haute to refuel their helicopter when they passed over

      property that Patton was renting in Owen County (“Patton’s Property”). 2 On

      the property were a single-story residence, a large vegetable garden to the west

      of the residence, and a dilapidated barn to the west of the garden. The barn was

      about fifty yards from the road and 100 yards from the residence.3 Trooper

      Feather thought that he saw marijuana plants next to the barn and told the




      2
       For ease of reference, we will refer to the property as “Patton’s Property,” even though he did not own the
      property.
      3
        Trooper Cummins testified to these lengths at trial. In contrast, Trooper Kempf testified at trial that the
      barn was about 150 yards from the house. Trooper Feathers testified at the suppression hearing that the barn
      was twenty-five to 100 yards from the house. We will consider the distance between the house and the barn
      100 yards as all three troopers agree that it was potentially that far. In addition, to the extent Trooper
      Feathers testified that the distance might only be twenty-five yards, that testimony contradicts the testimony
      of the other two troopers, and we may only consider evidence produced in a suppression hearing to the
      extent it does not contradict later trial testimony. Morris v. State, 871 N.E.2d 1011, 1016 (Ind. Ct. App. 2007),
      trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 60A01-1403-CR-115 | April 29, 2015                Page 3 of 18
      other troopers that he wanted to return to the property for further investigation

      after refueling.


[6]   Accordingly, the troopers flew back over the property an hour or two later after

      refueling. Trooper Cummins observed that there was indeed a patch containing

      what appeared to be rows of marijuana plants behind Patton’s barn. He

      estimated that there were thirty plants in total. The patch was also partially

      bordered by eight to twelve foot tall horseweeds, which resemble marijuana.4

      Trooper Kempf took aerial photographs of the property, including the barn and

      the marijuana patch.


[7]   It was the troopers’ normal procedure to mark the locations of marijuana they

      discovered on a handheld GPS unit so that they could follow up at another time

      and avoid landing the helicopter. However, they also had a policy that if they

      observed a person on a property where they had discovered marijuana, they

      would investigate immediately to avoid potential destruction of evidence. On

      their second pass around Patton’s Property, the troopers noticed a man near the

      garden. As a result, they decided to land their helicopter and investigate

      immediately. While they were trying to find somewhere to land, they saw the

      man, whom they later identified as Patton, in the marijuana patch pulling up

      the marijuana plants.




      4
        Trooper Cummins testified that the horseweeds were ten to twelve feet tall, and Trooper Feathers testified
      that the horseweeds were eight to ten feet tall.

      Court of Appeals of Indiana | Memorandum Decision 60A01-1403-CR-115 | April 29, 2015              Page 4 of 18
[8]   Approximately three to four minutes later, the troopers landed directly across

      the road on the other side of the barn. Trooper Cummins ran to the barn and

      found Patton inside on his hands and knees. He made Patton stand and

      noticed that Patton was “[v]ery dirty”, “very hot, . . . profusely sweating, [and] .

      . . had mud starting to drip down him.” (Tr. 226). At his request, Patton left

      the barn and sat on a cinder block in the yard.


[9]   Meanwhile, Trooper Feathers ran to the marijuana patch and observed that the

      dirt in the patch had been disturbed, and only two of the marijuana plants

      remained. When he told Trooper Kempf that most of the plants were gone,

      they both attempted to search for the plants in the horseweeds surrounding the

      marijuana patch. When they did not find any of the plants there, Trooper

      Cummins told Trooper Kempf about finding Patton in the barn, and Trooper

      Kempf went to that spot in the barn. He got on his hands and knees—the

      position in which Trooper Cummins had found Patton—and spotted some

      marijuana plants through a hole in the barn’s floor. He could not reach the

      plants from the inside of the barn, so he walked outside and was able to retrieve

      them through another hole on the outside of the barn. In total, he retrieved ten

      marijuana plants. He observed that they appeared to be “freshly pulled up” and

      still had dirt and roots attached. (Tr. 330). All of the plants were immature.5




      5
       Trooper Cummins later testified that this was because marijuana is not usually harvested until the end of
      September or beginning of October, and these plants were seized in July.

      Court of Appeals of Indiana | Memorandum Decision 60A01-1403-CR-115 | April 29, 2015             Page 5 of 18
[10]   While the troopers were at the scene, they searched the immediate area around

       the marijuana patch, and Patton’s wife gave consent for them to search the

       house. Although they did not find any plants in the house, they did discover a

       wagon with thirty-eight starter marijuana plants in Styrofoam cups by the

       backside of the garden, near the house.6 Patton talked to Trooper Cummins

       and admitted that the starter plants were his, although he denied having

       anything to do with the marijuana plants in the patch and barn. Before leaving,

       Trooper Feathers went back up into the helicopter to see if he could find any of

       the remaining eighteen missing plants from the air, but he did not have any

       success.


[11]   Subsequently, Haley Newton (“Newton”), a forensic scientist with the ISP Lab,

       analyzed the plants obtained from Patton’s Property and confirmed they were

       indeed marijuana plants. She found that the marijuana recovered from the barn

       and patch weighed 20.47 grams, and the starter marijuana plants from the

       wagon weighed 14.88 grams. In total, the plant material weighed 35.35 grams.


[12]   Thereafter, on July 15, 2011, the State charged Patton with two counts of Class

       D felony possession of marijuana in an amount over thirty (30) grams,

       including one count under INDIANA CODE § 35-48-4-11(1) for possessing it and

       one count under INDIANA CODE § 35-48-11(2) for growing it.7 On June 18,




       6
           The starter plants were six to eight inches tall.
       7
        It is apparent that the State combined the weights of the marijuana seized from Patton’s patch, barn, and
       wagon to exceed the thirty grams required for a Class D felony.

       Court of Appeals of Indiana | Memorandum Decision 60A01-1403-CR-115 | April 29, 2015             Page 6 of 18
       2012, Patton filed a motion to suppress the evidence of the marijuana. 8 He filed

       a second motion to suppress on October 3, 2013, in which he argued that the

       troopers had violated his federal and state constitutional rights to be free from

       unreasonable search and seizure and that, accordingly, the trial court should

       suppress the evidence seized from the search of his barn. Notably, he did not

       argue that the trial court should suppress the evidence of the marijuana found in

       the patch or the wagon.


[13]   On October 7, 2013, the trial court held a hearing on Patton’s motion to

       suppress, which it ultimately denied. The trial court then held a jury trial on

       October 9-11, 2013. On the first day of the trial, Patton made a motion in

       limine, again requesting the trial court to suppress the barn marijuana evidence.

       The trial court denied the motion but showed Patton’s continuing objection to

       any admission of the marijuana into evidence. At trial, the trial court admitted

       all the marijuana, and at the conclusion of the trial, the jury found Patton guilty

       as charged. Subsequently, the trial court held a sentencing hearing on

       November 12, 2013. It merged Patton’s convictions and sentenced him to

       1,095 days, with 180 days executed on home detention and the rest suspended

       to probation. Patton now appeals.9




       8
        Patton cites that this motion is included on page forty-six of his Appendix, but page forty-six of the
       Appendix is missing.
       9
         Patton filed both a motion for leave to file a belated notice of appeal and an amended motion for leave to
       file a belated notice of appeal. The trial court granted the amended motion.

       Court of Appeals of Indiana | Memorandum Decision 60A01-1403-CR-115 | April 29, 2015                Page 7 of 18
                                                   Decision
[14]   On appeal, Patton argues that the trial court abused its discretion in admitting

       the evidence of the marijuana seized from his barn because the troopers’ search

       of the barn was unconstitutional under both the United States and Indiana

       constitutions. Alternately, he asserts that the State did not produce sufficient

       evidence that the marijuana he possessed weighed more than thirty (30) grams,

       as was required to convict him of a Class D felony as opposed to a Class A

       misdemeanor. We will address each of these arguments in turn.


       1. Constitutional Claims

[15]   First we will consider the trial court’s admission of the evidence of the

       marijuana seized from Patton’s barn. Because Patton did not seek an

       interlocutory appeal of his motion to suppress evidence, we consider the trial

       court’s admission of the evidence at trial rather than its denial of his motion to

       suppress. Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014). We review a trial

       court’s decision to admit evidence for an abuse of discretion, which we will find

       if the court’s decision is clearly against the logic and effect of the facts and

       circumstances before it, and the error affects a party’s substantial rights. Id. In

       making this determination, we do not reweigh the evidence, and we consider

       conflicting evidence in the light most favorable to the trial court. Weddle v.

       State, 989 N.E.2d 371, 375 (Ind. Ct. App. 2013), aff’d on reh’g, trans. denied. We

       review any questions of law, such as the ultimate determination of the

       constitutionality of a search and seizure de novo. Carpenter, 18 N.E.3d at 1001.



       Court of Appeals of Indiana | Memorandum Decision 60A01-1403-CR-115 | April 29, 2015   Page 8 of 18
[16]   Patton’s admissibility argument is founded on his assertion that the troopers

       conducted an unconstitutional search of the inside of his barn and that the

       evidence they discovered as a result of the search was, thus, inadmissible. Both

       the Fourth Amendment to the United States Constitution and Article 1, Section

       11 of the Indiana Constitution protect against unreasonable searches and

       seizures, and both use similar language.10 In spite of their similarities, however,

       we analyze claims differently under each constitution. Accordingly, we will

       first address Patton’s claims under the Fourth Amendment and then turn to

       Article 1, Section 11.


       A. United States Constitution

[17]   Patton first argues that the troopers’ search of the inside of his barn violated the

       Fourth Amendment’s prohibition against unreasonable searches and seizures

       because they did not have a warrant and because no exceptions to the Fourth

       Amendment’s warrant requirements applied. In response, the State argues that

       the troopers did not need a warrant because Patton’s barn was not protected by

       the Fourth Amendment. Alternately, the State contends that exceptions to the

       Fourth Amendment applied because the marijuana was in plain view, and

       Patton’s attempted disposal of the marijuana created exigent circumstances.


[18]   To trigger Fourth Amendment protections, a search arises out of an intrusion

       by a government actor upon an area in which a person maintains “‘a reasonable



       10
         The Fourth Amendments protections extend to the states through the Fourteenth Amendment. Dora v.
       State, 957 N.E.2d 1049, 1052 (Ind. Ct. App. 2011), reh’g denied, trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 60A01-1403-CR-115 | April 29, 2015      Page 9 of 18
       expectation of privacy.’” Holder v. State, 847 N.E.2d 930, 935 (Ind. 2006)

       (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). A constitutionally

       protected expectation of privacy exists where there is both a subjective

       expectation of privacy and societal recognition that such expectation of privacy

       is reasonable. Dora v. State, 957 N.E.2d 1049, 1052 (Ind. Ct. App. 2011), reh’g

       denied, trans. denied. The United States Supreme Court has held that the land

       immediately surrounding and associated with the home, known as the

       curtilage, merits Fourth Amendment protections. Id. In contrast, a person does

       not have a legitimate expectation of privacy in open field areas that fall beyond

       a home’s curtilage. Oliver v. United States, 466 U.S. 170, 181 (1984). These

       “open fields” need be neither open nor fields. Blalock v. State, 483 N.E.2d 439,

       443 (Ind. 1985). In addition, the Fourth Amendment also does not protect

       “‘activities or items that, even if within the curtilage, are knowingly exposed to

       the public.’” Dora, 957 N.E.2d at 1052 (quoting Trimble v. State, 842 N.E.2d

       798, 802 (Ind. 2006)).


[19]   Citing the above precedent, the State argues that Patton’s barn was outside of

       the curtilage and, therefore, was not protected by the Fourth Amendment.

       However, we need not address this argument, because the Troopers’ search and

       seizure were reasonable even if the barn was protected by the Fourth

       Amendment.


[20]   A search or seizure conducted without a warrant in an area protected by the

       Fourth Amendment is per se unreasonable. Rush v. State, 881 N.E.2d 46, 50

       (Ind. Ct. App. 2008). However, there are a few well-delineated exceptions,

       Court of Appeals of Indiana | Memorandum Decision 60A01-1403-CR-115 | April 29, 2015   Page 10 of 18
       including when exigent circumstances exist and when an officer conducts a

       lawful search and discovers an item in plain view. Id; see Justice v. State, 765

       N.E.2d 161 (Ind. Ct. App. 2002), decision clarified on reh’g. If a warrantless

       search or seizure is conducted, the burden is on the State to prove that, at the

       time of the search or seizure, an exception to the warrant requirement existed.

       Id.


[21]   One exception to the Fourth Amendment warrant requirement allows police to

       dispense with obtaining a warrant if there are exigent circumstances—

       specifically where “‘the exigencies of the situation’ make the needs of law

       enforcement so compelling that the warrantless search is objectively reasonable

       under the Fourth Amendment.’” Holder, 847 N.E.2d at 936-37 (quoting Mincey

       v. Arizona, 437 U.S. 38, 394 (1978)). Among the exigencies that may properly

       excuse the warrant requirement are threats to the lives and safety of officers and

       others and the imminent destruction of evidence. Id.


[22]   Another exception to the Fourth Amendment warrant requirement is the plain

       view doctrine. Under the plain view doctrine, an officer may seize evidence if:

       (1) the officer did not violate the Fourth Amendment in arriving at the place

       from which the evidence could be plainly viewed; (2) the incriminating

       character of the evidence is immediately apparent; and (3) the officer has a

       lawful right of access to the object itself. Middleton v. State, 714 N.E.2d 1099,

       1101 (Ind. 1999).




       Court of Appeals of Indiana | Memorandum Decision 60A01-1403-CR-115 | April 29, 2015   Page 11 of 18
[23]   Here, the troopers, while lawfully flying above the property, observed

       marijuana growing on the property in plain view. This observation was not a

       Fourth Amendment violation. See, e.g., Kyllo v. United States, 533 U.S. 27, 33

       (2001) (noting that the Court has held “on two different occasions . . . that

       aerial surveillance of private homes and surrounding areas does not constitute a

       search” under the Fourth Amendment) (citing Florida v. Riley, 488 U.S. 445

       (1989) (plurality opinion); California v. Ciraolo, 476 U.S. 207 (1986)).


[24]   The troopers then observed Patton near the marijuana, and, while they were

       still in the air, they saw Patton start to pull up the marijuana and take the

       removed plants into the dilapidated barn. These observations created exigent

       circumstances—namely, the potential, imminent destruction of evidence. See,

       e.g., Kentucky v. King, 131 S. Ct. 1849, 1856 (2011) (“the need to prevent the

       imminent destruction of evidence has long been recognized as a sufficient

       justification for a warrantless search”) (citations and quotations omitted). Thus,

       the troopers were justified in landing on Patton’s property and following Patton

       into the barn without a warrant.


[25]   Finally, once inside the barn, the troopers observed Patton on his hands and

       knees on the floor of the barn before they placed him under arrest. After they

       had detained Patton, Trooper Kempf then got on his hands and knees where

       Patton had been and observed, through a hole in the floor, the marijuana plants

       Patton had removed. Trooper Kempf was also able to observe the uprooted

       plants from outside the barn. As a matter of Fourth Amendment law, Trooper

       Kempf was in a place where he had a legal right to be and he observed the

       Court of Appeals of Indiana | Memorandum Decision 60A01-1403-CR-115 | April 29, 2015   Page 12 of 18
       plants in plain view from that location. See, e.g., Texas v. Brown, 460 U.S. 730,

       740 (1983) (holding that the officer’s change in position, which included

       “ben[ding] down at an angle, . . . is irrelevant to Fourth Amendment analysis”)

       (quotation omitted). In light of these exceptions to the warrant requirement, we

       conclude that the troopers’ search and seizure did not violate Patton’s

       constitutional right to privacy under the Fourth Amendment. However,

       because we analyze the Indiana Constitution differently from the United States

       Constitution, we will turn to address Patton’s claims under the Indiana

       Constitution.


       B. Indiana Constitution


[26]   Article 1, Section 11 of the Indiana Constitution, like the Fourth Amendment,

       prohibits unreasonable searches and seizures. However, although the language

       of Article 1, Section 11 is almost identical to the language of the Fourth

       Amendment, interpretations and applications between them vary. Holder, 847

       N.E.2d at 935. This is because Indiana courts have “explicitly rejected the

       ‘expectation of privacy’ as a test of the reasonableness of a search or seizure.”

       Mundy v. State, 21 N.E.3d 114, 118 (Ind. Ct. App. 2014) (quoting Litchfield v.

       State, 824 N.E.2d 356, 359 (Ind. 2005)).


[27]   Under the Indiana Constitution, the legality of a governmental search turns on

       an evaluation of the reasonableness of the police conduct under the totality of

       the circumstances. Id. We determine the reasonableness of a search or seizure

       by balancing: (a) the degree of concern, suspicion, or knowledge that a


       Court of Appeals of Indiana | Memorandum Decision 60A01-1403-CR-115 | April 29, 2015   Page 13 of 18
       violation has occurred; (b) the degree of intrusion the method of the search or

       seizure imposes on the citizens’ ordinary activities; and (c) the extent of law

       enforcement needs. Rush, 881 N.E.2d at 52. We give Article 1, Section 11 a

       liberal construction in favor of protecting individuals from unreasonable

       intrusions on privacy, id., and the State must bear the burden of showing that,

       under the totality of the circumstances, an intrusion was reasonable. Mitchell,

       745 N.E.2d at 786.


[28]   As for the first factor, the troopers here had a high degree of suspicion that a

       violation had occurred because they had identified thirty marijuana plants on

       Patton’s Property from their helicopter, and they had seen Patton attempting to

       pull the plants up. When they arrived at the marijuana patch, only two of the

       marijuana plants remained.


[29]   As for the second factor, the troopers’ degree of intrusion was relatively low. It

       is apparent from the record that the troopers’ discovery of Patton and

       subsequent discovery of the marijuana occurred within a relatively short time

       frame, and, therefore, the troopers did not unreasonably interfere with Patton’s

       ordinary activities. In addition, the scope of the search was narrow because

       Trooper Kempf contained his search to the area of the barn where Trooper

       Cummins had discovered Patton. Accordingly, we conclude that the troopers’

       level of intrusion was relatively minimal.


[30]   Finally, as for the third factor, it is clear that the extent of law enforcement

       needs was strong. The troopers had identified thirty marijuana plants on


       Court of Appeals of Indiana | Memorandum Decision 60A01-1403-CR-115 | April 29, 2015   Page 14 of 18
       Patton’s Property from their helicopter and only found two plants remaining

       when they arrived at the patch. They knew that a violation had occurred and

       needed to find the marijuana before it was destroyed. Further, because the

       troopers saw Patton pulling up the plants and very little time had passed before

       they landed their helicopter and arrived at the patch, the troopers knew that the

       plants were likely within the vicinity of the patch and barn.


[31]   In regards to Patton’s argument that, because he was detained, the troopers did

       not have an extensive law enforcement need to find the marijuana because he

       could not continue to destroy the marijuana while detained, we note that it is

       true that Patton could not continue to destroy evidence. However, that does

       not affect the fact that the troopers knew Patton had committed a violation,

       knew the marijuana was in the vicinity of the barn, and needed to obtain it for

       law enforcement purposes. The fact that Patton was detained does impact the

       extent of law enforcement need but not to the point that the troopers did not

       need to find the marijuana.


       Furthermore, even if we were to decide this factor in Patton’s favor, we must

       balance the three factors, and the troopers had knowledge a violation had

       occurred and only minimally intruded on Patton’s ordinary activities.

       Therefore, we conclude that the troopers’ actions were reasonable under the

       totality of the circumstances and did not violate Article I, Section 11 of the

       Indiana Constitution. Accordingly, the trial court did not abuse its discretion in

       admitting the evidence of the marijuana recovered from the barn.



       Court of Appeals of Indiana | Memorandum Decision 60A01-1403-CR-115 | April 29, 2015   Page 15 of 18
       2. Sufficiency

[32]   Next, Patton argues that the State did not present sufficient evidence that the

       marijuana he possessed weighed more than thirty grams, which was the

       amount required to convict him of possession of marijuana as a Class D felony.

       The standard of review for a sufficiency of the evidence claim is that this Court

       should only reverse a conviction when reasonable persons would not be able to

       form inferences as to each material element of the offense. Perez v. State, 872

       N.E.2d 208, 212-13 (Ind. Ct. App. 2007), trans. denied. We do not reweigh

       evidence or judge the credibility of witnesses. Id. at 213. In addition, we only

       consider the evidence most favorable to the verdict and the reasonable

       inferences stemming from that evidence. Id.


[33]   At the time of Patton’s offense, INDIANA CODE § 35-48-4-11 provided that a

       person who “knowingly or intentionally possesse[d] (pure or adulterated)

       marijuana” in an amount greater than thirty grams committed Class D felony

       possession of marijuana. However, the offense was a Class A misdemeanor if

       the amount involved was thirty grams or less. I.C. § 35-48-4-11. Also at that

       time, INDIANA CODE § 35-48-1-19 defined “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. It does not include the mature stalks of the plant; fiber
               produced from the stalks; oil or cake made from the seeds of the
               plant; any other compound, manufacture, salt, derivative,
               mixture, or preparation of the mature stalks (except the resin


       Court of Appeals of Indiana | Memorandum Decision 60A01-1403-CR-115 | April 29, 2015   Page 16 of 18
           extracted therefrom); or the sterilized seed of the plant which is
           incapable of germination.11


For purposes of determining whether a defendant has possessed more than

thirty grams of marijuana, we may also consider the weight of any adulterated

marijuana, which includes “‘other vegetable material’ not included within the

definition of marijuana.” Adams v. State, 968 N.E.2d 281, 286 (Ind. Ct. App.

2012) (quoting Allison v. State, 527 N.E.2d 234, 238 (Ind. Ct. App. 1988), trans.

denied), trans. denied.


Patton’s first argument with respect to the weight of the marijuana is that the

State did not prove that the marijuana the ISP Lab weighed was dry. He

contends that if the marijuana were not dry, its weight could have included

external water weight. In support of this argument, he cites to Lycan v. State,

671 N.E.2d 447, 457 (Ind. Ct. App. 1996), where this Court held that the

aggregate weight of marijuana for the purposes of an offense enhancement

could not include external water weight. In Lycan, the marijuana at issue was

“very wet” when it was first weighed and weighed ten and a half pounds. Id. at

452. In contrast, the marijuana only weighed nine pounds after it dried, and

that amount was not sufficient to support Lycan’s conviction for Class C felony

possession with the intent to deliver more than ten pounds of marijuana. Id. at

459.




11
     This statute was amended, effective March 6, 2014.


Court of Appeals of Indiana | Memorandum Decision 60A01-1403-CR-115 | April 29, 2015   Page 17 of 18
[34]   Unlike Lycan, however, there is no evidence here that the marijuana Newton

       from the ISP Lab measured was wet and contained excess water weight.

       Trooper Feather testified that he left the marijuana in a room that the State

       Troopers call the “dry room” so that it could dry until it “really dr[ied] out.”

       (Tr. 336). Newton also testified that the ISP Lab would not accept wet plant

       material for analysis. Based on this evidence, it is clear that the marijuana was

       dry, and Patton’s argument that it might have contained external water weight

       is pure speculation that we will not consider.


[35]   In a second challenge to the weight of the marijuana, Patton contends that the

       plant material Newton weighed at the lab might have included some

       horseweed. However, Trooper Feather specifically testified that the samples he

       sent to the lab did not contain any horseweed or any parts of horseweed plants.

       We will not reweigh the evidence. Perez, 872 N.E.2d at 213. Accordingly, we

       conclude that the State presented sufficient evidence that Patton possessed more

       than thirty grams of marijuana.


       Affirmed.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 60A01-1403-CR-115 | April 29, 2015   Page 18 of 18
