MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                           FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                             Nov 30 2018, 10:55 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
John T. Wilson                                          Curtis T. Hill, Jr.
Anderson, Indiana                                       Attorney General of Indiana

                                                        Matthew B. MacKenzie
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

Joshua S. Jessup,                                       November 30, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1343
        v.                                              Appeal from the
                                                        Henry Circuit Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     David L. McCord, Judge
                                                        Trial Court Cause No.
                                                        33C03-1708-CM-793




Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1343 | November 30, 2018              Page 1 of 5
[1]   Joshua S. Jessup (“Jessup”) appeals his conviction for Class B misdemeanor

      possession of marijuana,1 raising the following restated issue: whether the State

      presented sufficient evidence to support Jessup’s conviction.


[2]   We affirm.


                                      Facts and Procedural History
[3]   On August 14, 2017, Officer Donald McClure (“Officer McClure”) responded

      to a dispatch regarding an intoxicated man who had fallen. Tr. Vol. II at 6.

      Officer McClure had served as a law enforcement officer for about nine years,

      had been trained to recognize marijuana by odor and color, and had made

      arrests or been “involved in” approximately thirty marijuana-related cases. Id.

      at 5-6.


[4]   When Officer McClure arrived, several EMTs were standing around Jessup and

      speaking with him. Id. at 7. Officer McClure also spoke with Jessup, who kept

      reaching down to his lower pants’ pocket. Id. Officer McClure asked Jessup

      what was in the pocket, and Jessup admitted that he had a “joint.” Id. at 8.

      Officer McClure removed the joint from Jessup’s pocket, which turned out to

      be two hand-rolled joints, one unburnt and unconsumed, and the other burnt

      and half consumed; both were stored in a cigarette box. Id.; Ex. Vol. 3, State’s

      Ex. 2 at 7. Jessup was charged with possession of marijuana, a Class B




      1
          See Ind. Code § 35-48-4-11(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1343 | November 30, 2018   Page 2 of 5
      misdemeanor. Appellant’s App. Vol. II at 6. At the bench trial, Officer McClure

      testified that the intact joint smelled of raw marijuana and that the half-burned

      joint smelled of burnt marijuana. Tr. Vol II at 8. Jessup did not object to this

      testimony. Appellant’s Br. at 5. During later testimony, Officer McClure

      identified the items in State’s Exhibit 2 as marijuana. Tr. Vol. II at 10. Jessup

      did not object to this testimony either. The trial court found Jessup guilty as

      charged, stating “the officer testified that in his training and experience that he

      smelled the marijuana.” Id. at 18. Jessup now appeals.


                                     Discussion and Decision
[5]   When reviewing the sufficiency of the evidence, we consider only the probative

      evidence and reasonable inferences supporting the verdict. Willis v. State, 27

      N.E.3d 1065, 1066 (Ind. 2015). The fact-finder, not the appellate court,

      assesses witness credibility and the weight of the evidence to determine if the

      evidence supports a conviction. Id. When we confront conflicting evidence, we

      consider the evidence most favorable to the trial court’s ruling. Id. We will

      affirm the conviction unless no reasonable fact-finder could find the elements of

      the crime proven beyond a reasonable doubt. Drane v. State, 867 N.E.2d 144,

      146 (Ind. 2007). Thus, the evidence need not overcome every reasonable

      hypothesis of innocence. Id. at 147.


[6]   To obtain a conviction for Class B misdemeanor possession of marijuana, the

      State must prove that a person knowingly or intentionally possessed marijuana.

      See Ind. Code § 35-48-4-11(a). “The identity of a controlled substance may be


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1343 | November 30, 2018   Page 3 of 5
      established through witness testimony and circumstantial evidence.” Yoakum v.

      State, 95 N.E.3d 169, 175 (Ind. Ct. App. 2018) (citing Helton v. State, 907

      N.E.2d 1020, 1024 (Ind. 2009), trans. denied). “The opinion of someone

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

      circumstantial evidence. Although chemical analysis is one way, and perhaps

      the best way, to establish the identity of a compound, persons experienced in

      the area may be able to identify cigarette smoke, [and] marijuana . . . . .” Id.

      (citation omitted).


[7]   Where an appellant has failed to object to the admission of evidence at trial, we

      may review an evidentiary claim only if the appellant demonstrates

      fundamental error. Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014). “The

      fundamental error exception is extremely narrow and applies only when the

      error constitutes a blatant violation of basic principles, the harm or potential for

      harm is substantial, and the resulting error denies the defendant fundamental

      due process.” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). Such error is so

      prejudicial to a defendant that a fair trial is impossible. McKinley v. State, 45

      N.E.3d 25, 28 (Ind. Ct. App. 2015).


[8]   Here, Jessup contends that even though Officer McClure’s testimony

      established his training and experience regarding the identification of

      marijuana, his testimony did not establish a sufficiently specific foundation for

      his conclusion that Jessup was possessing marijuana. Jessup contends that the

      State’s foundational evidence should have addressed 1) whether Officer

      McClure himself had seized the marijuana in the previous cases; 2) whether the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1343 | November 30, 2018   Page 4 of 5
       marijuana in previous cases was field tested or lab tested; and 3) whether

       Officer McClure was a certified drug recognition expert or had even

       successfully completed his training. Appellant’s Br. at 6. Recognizing that he

       failed to object to the State’s foundation, Jessup contends that the allegedly

       inadequate foundation constitutes fundamental error.


[9]    We reject Jessup’s argument and find that the foundation for Officer McClure’s

       testimony was sufficiently specific. Thus, we find no error, fundamental or

       otherwise. It is well established that testimony covering the basics of an

       officer’s training and experience is adequate to establish an adequate foundation

       for an officer’s testimony about the identity of a controlled substance. See, e.g.,

       Vasquez v. State, 741 N.E.2d 1214, 1217 (Ind. 2001); Clifton v. State, 499 N.E.2d

       256, 258 (Ind. 1986); Helton v. State, 907 N.E.2d 1020, 1024 (Ind. 2009); and

       Boggs v. State, 928 N.E.2d 855, 865 (Ind. Ct. App. 2010), trans. denied. Here,

       Officer McClure’s testimony about his training and experience in identifying

       marijuana by odor and color and his involvement in thirty marijuana-related

       arrests more than adequately fulfilled the requirements of the foundation.

       Thus, Officer McClure’s testimony that the controlled substance that Jessup

       possessed was marijuana, in addition to Jessup’s admission that he was

       carrying joints in his pocket, provided sufficient evidence for Jessup’s

       conviction for Class B misdemeanor possession of marijuana.


[10]   Affirmed.


       Vaidik, C.J., and Riley, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1343 | November 30, 2018   Page 5 of 5
