MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                    FILED
regarded as precedent or cited before any                                   Jun 22 2020, 10:27 am

court except for the purpose of establishing                                        CLERK
                                                                                Indiana Supreme Court
the defense of res judicata, collateral                                            Court of Appeals
                                                                                     and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Darren Bedwell                                          Curtis T. Hill, Jr.
Marion County Public Defender                           Attorney General of Indiana
Indianapolis, Indiana                                   Caroline G. Templeton
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Charlton Jones,                                         June 22, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-2291
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Charnette D.
Appellee-Plaintiff,                                     Garner, Judge
                                                        Trial Court Cause No.
                                                        49G09-1805-F6-17571



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2291 | June 22, 2020                     Page 1 of 10
                               Case Summary and Issues
[1]   Following a bench trial, Charlton Jones was convicted of possession of

      marijuana and operating a vehicle while intoxicated endangering a person, both

      Class A misdemeanors, and was sentenced to concurrent 365 day sentences on

      each charge, with credit for four days served and 361 days suspended. Jones

      appeals and raises two issues, which we restate as: (1) whether the State

      presented sufficient evidence to support his conviction of possession of

      marijuana, and (2) whether the State presented sufficient evidence to support

      his conviction of operating a vehicle while intoxicated endangering a person.

      Concluding the State produced sufficient evidence to support both convictions,

      we affirm.



                            Facts and Procedural History
[2]   The facts most favorable to the judgment are as follows: Late on the evening of

      May 18, 2018, Captain Erwin Faulk of the Indiana State Police (“ISP”) was

      traveling on Interstate 70 in Indianapolis, Indiana, when he observed a truck

      traveling sixty-eight miles per hour in a fifty mile per hour zone. The truck “was

      swerving back and forth within its lane” and Captain Faulk “observed it come

      out of its lane a couple times[.]” Transcript, Volume II at 76. On at least one

      occasion and possibly two, the driver of the truck failed to signal when

      changing lanes. At the time, however, Officer Faulk had a detainee in his

      vehicle so he could not initiate a traffic stop because it was “against ISP policy

      to stop another vehicle when we have a prisoner in the vehicle.” Id. at 77.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2291 | June 22, 2020   Page 2 of 10
      Therefore, he requested assistance and continued to follow the truck until

      another unit initiated a traffic stop.


[3]   ISP Trooper Matthew Helmbrecht responded to the call for assistance, located

      the truck, and initiated a traffic stop. Trooper Helmbrecht discovered that Jones

      was the driver of the truck and that he had a friend in the car with him. Jones

      told Trooper Helmbrecht that he knew he had been swerving, claiming that he

      was on his cellphone. But while speaking with Jones, Trooper Helmbrecht

      identified signs of intoxication such as the odor of alcohol, watery and blood

      shot eyes, unsteady balance, and slurred speech. Trooper Helmbrecht also

      noticed an odor emanating from inside the vehicle that based on his seven years

      of training and experience, he believed to be marijuana and observed what

      appeared to be “lose [sic] pieces of [m]arijuana stuck to [Jones’] pants[.]” Id. at

      90. When asked if he had been drinking, Jones responded that he had.


[4]   Trooper Helmbrecht asked Jones to exit his vehicle and began to administer a

      field sobriety test. Jones failed the test and refused to undergo any further field

      sobriety tests or a portable breath test. Trooper Helmbrecht asked Jones about

      the marijuana on his pants and Jones said that “he had just rolled up and

      smoked before being stopped” and described himself as being a “weed head.”

      Id. at 100. When asked if there was any more marijuana in the vehicle, Jones

      responded that he did not know but admitted that the vehicle and “everything

      in the vehicle [was] his[.]” Id. at 100-01. After searching the vehicle, Officer

      Helmbrecht located two plastic bags containing a substance he identified as

      marijuana. Id. at 102. Jones was arrested and transported to Eskenazi Health

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2291 | June 22, 2020   Page 3 of 10
      Hospital for a chemical test, which showed an alcohol concentration equivalent

      (“ACE”) of .02.


[5]   The State charged Jones with possession of marijuana, a Class B misdemeanor,

      and operating a vehicle while intoxicated endangering a person, a Class A

      misdemeanor. The State also filed an enhancement to the possession of

      marijuana charge, alleging Jones had a previous conviction for possession of

      marijuana which would enhance that charge to a Class A misdemeanor.


[6]   At Jones’ bench trial, the trial court found him guilty as charged.1 Jones

      admitted to having a prior conviction for possession of marijuana and therefore,

      the trial court entered judgment of conviction for both possession of marijuana

      and operating a vehicle while intoxicated endangering a person as Class A

      misdemeanors. Jones received an aggregate sentence of 365 days, with 361 days

      suspended. Jones now appeals.



                                  Discussion and Decision
                                       I. Standard of Review
[7]   Our standard of review in this area is well settled. When reviewing the

      sufficiency of evidence, we do not reweigh the evidence or assess witness




      1
        Prior to trial, the State amended its charging information to add a charge of operating a vehicle with a
      schedule I or II controlled substance or its metabolite in the body as a Class C misdemeanor. After the State
      presented its case, Jones moved for an involuntary dismissal of all crimes charged pursuant to Indiana Trial
      Rule 41(B). However, the trial court only granted Jones’ motion as to operating a vehicle with a schedule I or
      II controlled substance or its metabolite in the body. See Tr., Vol. II at 200.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2291 | June 22, 2020                     Page 4 of 10
      credibility. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Instead, we consider

      only the probative evidence and reasonable inferences supporting the judgment.

      Id. We consider conflicting evidence in the light most favorable to the judgment

      and will affirm the conviction unless no reasonable factfinder could find that the

      elements of the crime were proven beyond a reasonable doubt. Oster v. State, 992

      N.E.2d 871, 875 (Ind. Ct. App. 2013), trans. denied. The evidence is sufficient if

      an inference may be reasonably drawn from it to support the judgment.

      Temperly v. State, 933 N.E.2d 558, 567 (Ind. Ct App. 2010), trans. denied, cert.

      denied, 565 U.S. 976 (2011). “A conviction may be based upon circumstantial

      evidence alone.” Bockler v. State, 908 N.E.2d 342, 346 (Ind. Ct. App. 2009)

      (citation omitted).


                             II. Sufficiency of the Evidence
                                    A. Possession of Marijuana
[8]   Jones first contends that evidence that Trooper Helmbrecht “smelled” the odor

      of marijuana and found a plant material that “looked” like marijuana was

      insufficient to support his possession of marijuana conviction. Brief of

      Appellant at 11. Jones maintains that because the substance found in his vehicle

      was not admitted into evidence and the State failed to provide expert testimony

      to confirm the substance was marijuana, his conviction for possession of

      marijuana cannot stand. We disagree.


[9]   To convict Jones of possession of marijuana as a Class A misdemeanor, the

      State was required to prove beyond a reasonable doubt that Jones knowingly or

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2291 | June 22, 2020   Page 5 of 10
       intentionally possessed marijuana and had a prior conviction for a drug offense.

       See Ind. Code § 35-48-4-11(a), (b)(1). For offenses involving controlled

       substances, the State is not required to introduce the contraband to obtain a

       conviction for possession. Helton v. State, 907 N.E.2d 1020, 1024 (Ind. 2009).

       “The identity and quantity of a controlled substance, and the defendant’s

       possession of or dealing in narcotics, may all be established through witness

       testimony and circumstantial evidence.” Id. “Although chemical analysis is one

       way, and perhaps the best way, to establish the identity of a compound,” “[t]he

       opinion of someone sufficiently experienced with the drug may establish its

       identity[.]” Vasquez v. State, 741 N.E.2d 1214, 1216 (Ind. 2001).


[10]   Here, Trooper Helmbrecht testified at trial that he was trained to identify

       marijuana and had seven years of experience with ISP, during which he

       encountered marijuana on multiple occasions. He has “dealt with [m]arijuana,

       weighed it, packaged it, put it into evidence, [and] smelled it on numerous . . .

       occasions.” Tr., Vol. II at 92. Trooper Helmbrecht testified that even without

       field testing the substance found on Jones, “it looked like [m]arijuana, smelled

       like [m]arijuana, [and] I do not know it to be anything else but [m]arijuana.” Id.

       Therefore, viewing the evidence in the light most favorable to the judgment, a

       court could reasonably determine that the testimony of Trooper Helmbrecht

       was sufficient to establish the identity of the substance as marijuana because he

       was sufficiently experienced with marijuana. Moreover, Jones’ own statements

       confirmed that he possessed marijuana. He explained the loose marijuana on

       his pants by telling Trooper Helmbrecht that before he was stopped, he had just


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2291 | June 22, 2020   Page 6 of 10
       finished rolling up and smoking and even characterized himself as a “weed

       head.” Id. at 100. After officers searched and found marijuana in Jones’ vehicle,

       Jones confirmed that “if there was [m]arijuana in the vehicle it was his” and did

       not belong to his passenger. Id. at 103. This evidence is sufficient to establish

       that Jones possessed marijuana. See, e.g., Boggs v. State, 928 N.E.2d 855, 867

       (Ind. Ct. App. 2010) (holding that sufficient evidence existed when officers

       testified that, based on their training and experience, the green, leafy substance

       they found was consistent with marijuana and the defendant admitted that he

       had a small amount of marijuana), trans. denied.


[11]   Jones argues that the State failed to prove that the substance he possessed was

       actually marijuana and not “industrial hemp.” At the time of Jones’ arrest in

       2018, Indiana Code section 35-48-1-19(a) 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.” There were seven exceptions that did not fall within the

       definition of marijuana, one of which was “industrial hemp.” Ind. Code § 35-

       48-1-19(b)(6) (2018). “Industrial hemp” was defined as:


               (1) [A]ll nonseed parts and varieties of the Cannabis sativa plant,
                   whether growing or not, that contain a crop wide average
                   tetrahydrocannabinol (THC) concentration that does not
                   exceed the lesser of:


                   (A) three-tenths of one percent (0.3%) on a dry weight basis;
                      or
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2291 | June 22, 2020   Page 7 of 10
                   (B) the percent based on a dry weight basis determined by the
                      federal Controlled Substances Act[.]


       Ind. Code § 15-15-13-6 (2014).


[12]   The State did not admit a lab report into evidence that would indicate the

       percentage of THC present in the substance found on Jones and in his truck.

       Regardless, the possession of marijuana statute does not require the State to

       prove an exact percentage of THC content. To the extent that Jones suggests

       the State was required to prove that the substance was not “industrial hemp,”

       that is incorrect. Contrary to Jones’ assertion, it is not (and never has been) the

       State’s burden to prove what the substance was not; that is Jones’ obligation. In

       other words, the State was not required to establish that the substance Trooper

       Helmbrecht found on Jones was not industrial hemp. Instead, it was the State’s

       burden to show that the substance was marijuana – a burden that we have

       already concluded the State has met through the testimony of Trooper

       Helmbrecht. Therefore, under the circumstances of this case, the State

       presented sufficient evidence to prove beyond a reasonable doubt that Jones

       possessed marijuana.


              B. Operating a vehicle while intoxicated endangering a
                                      person
[13]   Jones next argues that the evidence was insufficient to support the

       “endangerment” element of operating a vehicle while intoxicated endangering a

       person. Jones contends that although he was speeding and swerving as Captain

       Faulk followed him, he “successfully navigated nine intersections with traffic
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2291 | June 22, 2020   Page 8 of 10
       lights during that time, and stopped promptly when another officer pulled him

       over.” Br. of Appellant at 20.


[14]   To convict Jones of operating a vehicle while intoxicated as a Class A

       misdemeanor, the State was required to prove beyond a reasonable doubt that

       he 1) operated his vehicle 2) while intoxicated 3) in a manner that endangered a

       person. Ind. Code § 9-30-5-2(b). Based on the argument Jones presents, we need

       only decide if the evidence of endangerment is sufficient.


[15]   The endangerment element can be established by evidence showing that the

       defendant’s condition or manner of operating a vehicle could have endangered

       any person, including the public, the police, or the defendant. Staley v. State, 895

       N.E.2d 1245, 1249 (Ind. Ct. App. 2008), trans. denied. It is not required that the

       State prove that a person other than the defendant was actually in the path of

       the defendant’s vehicle or in the same area to obtain a conviction. Id. at 1251.

       Thus, it is sufficient to show endangerment if the defendant’s conduct renders

       driving unsafe. Id.


[16]   Here, although Jones did not injure anyone from his careless driving, the

       manner in which he was driving could have endangered himself or others.

       Captain Faulk testified that he observed Jones traveling sixty-eight miles per

       hour in a fifty mile per hour zone and driving in an erratic manner on the

       interstate. This evidence of Jones’ excessive speed coupled with swerving in and

       out of his lane is sufficient to prove endangerment. See, e.g., Staley, 895 N.E.2d

       at 1251 (holding there was sufficient evidence that the defendant endangered


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2291 | June 22, 2020   Page 9 of 10
       himself and others when he was driving ten miles over the speed limit with his

       lights off); see also Boyd v. State, 519 N.E.2d 182, 184 (Ind. Ct. App. 1988)

       (holding the defendant endangered himself or others when he was driving fifty-

       four miles per hour, at night, in a thirty mile per hour zone). Jones’ argument to

       the contrary is merely a request for this court to reweigh the evidence, which we

       cannot do. See Drane, 867 N.E.2d at 146. Therefore, the State presented

       sufficient evidence to prove that Jones operated a vehicle while intoxicated

       endangering a person.



                                               Conclusion
[17]   The State presented sufficient evidence to support Jones’ convictions for

       possession of marijuana and operating a vehicle while intoxicated endangering

       a person. Accordingly, the judgment of the trial court is affirmed.


[18]   Affirmed.


       May, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2291 | June 22, 2020   Page 10 of 10
