Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                             May 07 2014, 9:30 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

JEREMY K. NIX                                   GREGORY F. ZOELLER
CASEY C. MORGAN                                 Attorney General of Indiana
Matheny Hahn Denman & Nix, LLP
Huntington, Indiana                             ERIC P. BABBS
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

JOHNATHON R. ASLINGER,                          )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )     No. 35A02-1303-CR-296
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE HUNTINGTON SUPERIOR COURT
                          The Honorable Jeffrey R. Heffelfinger, Judge
                     Cause No. 35D01-1206-FD-127 & 35D01-1207-FA-152


                                        May 7, 2014

                                OPINION ON REHEARING

RILEY, Judge
       Appellant-Defendant, Johnathon R. Aslinger (Aslinger), appealed his conviction of

possession of methamphetamine, possession of paraphernalia, and dealing in

methamphetamine. In Aslinger v. State, 2 N.E.3d 84 (Ind. Ct. App. 2014), we reversed his

conviction for possession of methamphetamine, affirmed his conviction of dealing in

methamphetamine, and remanded the case to the trial court for further proceedings. The

State has petitioned for rehearing, to which Aslinger did not file a response. We grant the

State’s petition for rehearing for the limited purpose of clarifying the disposition of

Aslinger’s conviction for possession of paraphernalia.

       In its petition for rehearing, the State requests that we either clarify that Aslinger is

entitled to a retrial on his conviction of possession of paraphernalia or that, as the State

would prefer, we specify our decision to affirm Aslinger’s conviction and remand for

resentencing in accordance with the opinion. See Ind. Appellate Rule 66(C)-(D). In our

opinion, we found that certain evidence was inadmissible as the product of an invalid

seizure   pursuant to     the Fourth      Amendment—specifically a marijuana              joint,

methamphetamine, and several items of paraphernalia. However, we did determine that a

single pipe was permissibly seized in the course of a Terry stop. As a result, we noted in

the fourth footnote that “Aslinger’s conviction for possession of paraphernalia may be

upheld on remand.”

       To sustain Aslinger’s conviction, Indiana Code section 35-48-4-8.3(a)(1) requires

that he possessed that pipe with the intent to use it for “introducing into [his] body a

controlled substance.” Based on the evidence before us, we find that Aslinger’s intended

use for the pipe is unclear and we decline to direct the entry of a final judgment of

                                               2
conviction. Therefore, we clarify our opinion by remanding Aslinger’s conviction for

possession of paraphernalia for a retrial.

                                      CONCLUSION

       We grant the State’s petition for rehearing for the limited purpose of ordering a

retrial on Aslinger’s conviction for possession of paraphernalia. We affirm our opinion in

all other respects.

KIRSCH, J. and ROBB, J. concur




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