Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                               Jun 12 2013, 9:08 am
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:

BARBARA J. SIMMONS                                          GREGORY F. ZOELLER
Oldenburg, Indiana                                          Attorney General of Indiana

                                                            RICHARD C. WEBSTER
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

TYRONE WALKER,                                      )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 49A02-1211-CR-933
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Barbara A. Collins, Judge
                        The Honorable Deborah J. Shook, Commissioner
                              Cause No. 49F08-1206-CM-39880


                                           June 12, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                             Case Summary

        Tyrone Walker (“Walker”) appeals his conviction for Possession of Marijuana, as a

Class A misdemeanor.1 He presents the sole issue of whether sufficient evidence supports

the conviction. We reverse.

                                   Facts and Procedural History

        During the afternoon of May 31, 2012, Officer Philip Bulfer of the Indianapolis

Metropolitan Police Department (“Officer Bulfer”) was observing a “hot spot” for narcotics

activity when his attention was drawn to a vehicle occupied by three black males. (Tr. 5.) It

was parked at the site of a recent drug arrest, and a check of the vehicle license plate revealed

that the vehicle had been involved in an incident a year earlier in which a black man had fled

from police. Officer Bulfer decided to investigate because he believed that the men had

committed “some sort of crime.” (Tr. 11.)

        He and other officers followed the vehicle until it parked near 20th and Rochester

Streets. Officer Bulfer asked to search the vehicle and the driver, Devin Jefferson, gave

consent to search. Passengers Walker and Adrian Jefferson walked away from the vehicle

and moved to a nearby porch.

        During the search, Officer Bulfer noticed “small specks” of a green leafy substance on

the floorboards of the vehicle. (Tr. 14.) A black scale, with particles of a green leafy

substance, was found inside the glove box. Officer Bulfer approached the three former



1
  Ind. Code § 35-48-4-11. This section has now been re-codified. We refer to the statute in effect at the time
the offense was charged.

                                                      2
vehicle occupants, read them their Miranda2 rights, and inquired about ownership of the

scale. Walker claimed to own the scale.

          Walker was charged with Possession of Marijuana, in an aggregate amount of less

than thirty grams. During the bench trial on October 24, 2012, a laboratory report was

admitted into evidence by stipulation of the parties.                The report stated that

Tetrahydrocannabinol residue had been found on the scale. Walker moved to dismiss the

charge against him, observing that the laboratory report did not state that a measurable

amount of marijuana was found. The motion to dismiss was denied and the trial court found

Walker guilty as charged.

          Walker was given a sentence of 365 days, with 363 days suspended, and was placed

on mental health probation and ordered to receive a substance abuse evaluation. Walker

appeals.

                                       Discussion and Decision

          To convict Walker of Possession of Marijuana, as charged, the State was required to

establish beyond a reasonable doubt that Walker knowingly or intentionally possessed

marijuana, in an aggregate weight of less than thirty grams. I.C. § 35-48-4-11; App.18.

          In the context of our criminal law, “marijuana” is:

          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

2
    Miranda v. Arizona, 384 U.S. 436 (1966).

                                                 3
           preparation of the mature stalks (except the resin extracted therefrom); or the
           sterilized seed of the plant which is incapable of germination.

I.C. § 35-48-1-19 (emphasis added.)

           When the sufficiency of the evidence to support a conviction is challenged, we neither

reweigh the evidence nor judge the credibility of the witnesses, and we affirm if there is

substantial evidence of probative value supporting each element of the crime from which a

reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.

Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009).

           Walker does not deny that he possessed the scale in question or that a laboratory

examination found residue of Tetrahydrocannabinol. Rather, he observes that the State failed

to present any evidence that he possessed a measurable amount of marijuana.

           The State responds that, at the time Walker was charged, Tetrahydrocannabinol was

listed as a controlled substance in Indiana Code section 35-48-2-4.3 However, Walker was

not       charged      with     the    possession   of   a    controlled     substance,      specifically

Tetrahydrocannabinol.4 At the bench trial, the State attempted to establish – without expert

or lay testimony – that Tetrahydrocannabinol is in fact THC and that THC is in fact

marijuana.

           After admission of the laboratory report, the deputy prosecutor asked the trial court to

“take judicial notice that marijuana is a controlled substance in the State of Indiana and we’d


3
    This statute has since been re-codified.
4
 We do not suggest that the Prosecutor was required to lodge this particular charge. Prosecutors are vested
with broad discretion in the performance of their duties, and such discretion includes deciding whether and
when to prosecute. State v. Sagalovsky, 836 N.E.2d 260, 265 (Ind. Ct. App. 2005).

                                                    4
also ask the Court to take judicial notice that on the lab report the substance was – the

marijuana was under thirty grams.” (Tr. 23.) Notably, the deputy prosecutor did not ask the

trial court to take judicial notice that Tetrahydrocannabinol is THC or that THC is marijuana.5

Also, there was no stipulation of fact in this regard.

        When the defense objected that the report did not refer to marijuana, the trial court

inquired: “Isn’t that [what] THC is? Tetr—I don’t know, I’m asking, H-cannabinol, THC;

isn’t that – am I right?” (Tr. 24.) The deputy prosecutor responded “THC is marijuana so the

State has proven that the Defendant had marijuana.” (Tr. 25.) Accordingly, the trial court

invited the deputy prosecutor to provide information to fill in the evidentiary gaps, although

she was not a competent witness under oath and would have been precluded from testifying

on a contested issue in a case in which she acted as an advocate. Indiana Rule of

Professional Conduct 3.7(a). Moreover, even if this deputy prosecutor could have testified,

there is no suggestion that she possessed the requisite education, training or experience to

qualify as an expert under Indiana Rule of Evidence 702.

        The fact-finder was not free to resort to a common understanding of what chemically

comprises marijuana when there exists in our criminal code a relevant statute defining

marijuana. The definition of marijuana adopted by our Legislature, quoted above, does not

include a reference to THC and specifically excludes stalks of a marijuana plant. Although a

fact-finder could reasonably conclude that something with THC touched the scale, leaving


5
 We do not suggest that this would have been a proper subject for judicial notice. Indeed, the trial court could
not have relied upon undisputed facts within her knowledge, as she actively inquired whether
tetrahydrocannabinol is marijuana.

                                                       5
residue, the State did not demonstrate that THC is equivalent to marijuana under our criminal

code or that the THC was from a portion of a marijuana plant other than stalks. In short,

evidence of THC residue on a scale, without more, is not substantial evidence of probative

value from which the fact-finder could reasonably conclude that Walker possessed marijuana

as charged.

       Due process requires that the State must prove every element of the crime charged

beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361 (1970). Here, the State failed

to prove a material element of Possession of Marijuana within the meaning of Indiana Code

sections 35-48-4-11 and 35-48-1-19. Accordingly, there is insufficient evidence to sustain

Walker’s conviction.

       Reversed.

NAJAM, J., and BARNES, J., concur.




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