MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be                                     Mar 24 2020, 10:17 am
regarded as precedent or cited before any
                                                                                 CLERK
court except for the purpose of establishing                               Indiana Supreme Court
                                                                              Court of Appeals
the defense of res judicata, collateral                                         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
Appellate Division
Indianapolis, Indiana                                    George P. Sherman
                                                         Supervising Deputy Attorney General
                                                         Indianapolis, Indiana


                                            IN THE
      COURT OF APPEALS OF INDIANA

John C. Jones,                                           March 24, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2161
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Clayton A. Graham,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G07-1810-CM-34883



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2161 | March 24, 2020                     Page 1 of 9
                                             Case Summary
[1]   John C. Jones appeals his conviction for class A misdemeanor possession of

      marijuana. He contends that the State presented insufficient evidence to

      support his conviction and that the trial court committed fundamental error in

      instructing the jury. Finding sufficient evidence, and concluding that Jones has

      not met his burden to demonstrate fundamental error, we affirm.


                                 Facts and Procedural History
[2]   On October 10, 2018, Indianapolis Metropolitan Police Department Detective

      Sergeant Steven Spears was working undercover conducting surveillance for a

      drug investigation. Detective Spears was parked in an unmarked vehicle on

      East LeGrande Avenue when Jones, who was not a target of the investigation,

      exited his nearby residence and approached the vehicle. Jones asked Detective

      Spears why he was parked in front of his residence. Detective Spears told Jones

      that he was waiting for a realtor and that he would be leaving soon. Jones told

      Detective Spears that he needed to move. Detective Spears explained to Jones

      that he was not doing anything wrong and that he was parked legally on the

      side of the road. Jones became “very upset” and told Detective Spears “to get

      out of his f**king [parking] spot.” Tr. Vol. 2 at 86. Detective Spears refused,

      and Jones went back inside his residence. Detective Spears radioed his team so

      that they would be ready to assist in the event that Jones failed to “calm[]

      down.” Id. at 88. Jones stayed inside for a short period but then exited and got

      into his own vehicle. Jones pulled his vehicle right up to Detective Spears’s



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2161 | March 24, 2020   Page 2 of 9
      vehicle and “glared” at Detective Spears. Id. Jones then returned inside his

      residence.


[3]   A few minutes later, Jones exited his residence and approached Detective

      Spears. Detective Spears rolled his window down a couple inches, and Jones

      told him, “I’m giving you one last f**king chance … you better move or you’re

      going to get hurt.” Id. at 89. After Detective Spears rolled his window back up,

      Jones “aggressive[ly]” grabbed at the detective’s car “door handle and started

      yanking on it.” Id. Detective Spears exited his vehicle and verbally identified

      himself as a police officer.


[4]   Jones retreated inside his residence for a moment and then came back out and

      got in his own vehicle and drove away. Detective Spears followed him, and

      uniformed officers subsequently performed a traffic stop of Jones’s vehicle.

      During the stop, Officer Christopher Maher “smelled a strong odor of

      marijuana coming from [Jones’s] vehicle.” Id. at 50-51. He immediately

      recognized the smell based upon his training and experience, which included

      “hundreds of arrests involving marijuana.” Id. at 51. Consequently, Officer

      Maher searched the vehicle and found a “marijuana blunt cigarette” and a

      digital scale in the center console. Id.


[5]   The State charged Jones with class A misdemeanor intimidation and class B

      misdemeanor possession of marijuana. The possession charge was

      subsequently enhanced to a class A misdemeanor based upon Jones’s prior

      conviction for a drug offense. A jury trial was held on August 15, 2019.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2161 | March 24, 2020   Page 3 of 9
      During trial, Jones stipulated to the admission of a lab report containing the

      forensic analysis of the blunt found in his vehicle. The lab report stated that

      “the vegetation” in the “broken hand rolled cigarette” was tested and “was

      found to contain Marijuana with Tetrahydrocannabinol (THC) – percent not

      determined.” State’s Ex. 1.


[6]   The jury found Jones guilty of class A misdemeanor possession of marijuana

      but not guilty of class A misdemeanor intimidation. Following a hearing, the

      trial court sentenced Jones to 365 days, with 351 days suspended and 180 days

      of non-reporting probation. This appeal ensued.


                                     Discussion and Decision

       Section 1 – The State presented sufficient evidence to support
                            Jones’s conviction.
[7]   Jones first asserts that the State presented insufficient evidence to support his

      conviction for class A misdemeanor possession of marijuana. When reviewing

      a claim of insufficient evidence, we neither reweigh the evidence nor assess

      witness credibility. Bell v. State, 31 N.E.3d 495, 499 (Ind. 2015). We look to the

      evidence and reasonable inferences drawn therefrom that support the

      conviction, and will affirm if there is probative evidence from which a

      reasonable factfinder could have found the defendant guilty beyond a

      reasonable doubt. Id. In short, if the testimony believed by the trier of fact is

      enough to support the conviction, then the reviewing court will not disturb it.

      Id. at 500.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2161 | March 24, 2020   Page 4 of 9
[8]   To prove that Jones committed class A misdemeanor possession of marijuana,

      the State was required to prove that he knowingly or intentionally possessed

      marijuana. Ind Code § 35-48-4-11. Jones argues that the State failed to prove

      that the substance he possessed (the vegetation in the blunt) was actually

      marijuana. We disagree.


[9]   At the time of Jones’s possession of the blunt, October 2018, Indiana Code

      Section 35-48-1-19 provided:


                 (a) “Marijuana” means 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.


                 (b) The term does not include:

                     (1) the mature stalks of the plant;
                     (2) fiber produced from the stalks;
                     (3) oil or cake made from seeds of the plant;
                     (4) any other compound, manufacture, salt, derivative,
                     mixture, or preparation of the mature stalks (except the resin
                     extracted therefrom);
                     (5) the sterilized seed of the plant which is incapable of
                     germination;
                     (6) industrial hemp (as defined by IC 15-15-13-6);[ 1] or
                     (7) low THC hemp extract.




      1
          At the time of Jones’s possession, Indiana Code Section 15-15-13-6 defined “industrial hemp” as:



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2161 | March 24, 2020                     Page 5 of 9
[10]   Here, in addition to Officer Maher’s testimony that he smelled what he

       recognized, based upon his training and experience, to be the strong odor of

       marijuana emanating from Jones’s vehicle, the trial court admitted into

       evidence, by stipulation of the parties, a lab report that provided forensic

       analysis for the “broken hand rolled cigarette containing/spilling vegetation”

       found in the vehicle. State’s Ex. 1. The report stated that “[t]he vegetation,

       with a net weight of 1.83 grams, was tested and was found to contain

       Marijuana with Tetrahydrocannabinol (THC) – percent not determined.” Id.


[11]   Jones speculates that the vegetation in the blunt could have been “industrial

       hemp” rather than marijuana because the lab report indicated that the

       percentage of THC present in the substance was “not determined.” Id. First,

       we note that the statutory definition of marijuana adopted by our legislature

       does not include a specific reference to THC content. Accordingly, the State

       was not required to present evidence of the exact percentage of THC content in

       the substance. Moreover, we agree with the State that there is no reason to



             (1) all 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
                (B) the percent based on a dry weight basis determined by the federal Controlled Substances
                    Act (21 U.S.C. 801 et seq.); or
             (2) any Cannabis sativa seed that is:
                (A) part of a growing crop;
                (B) retained by a grower for future planting; or
                (C) for processing into, or use as, agricultural hemp seed.
             The term does not include industrial hemp commodities or products.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2161 | March 24, 2020                    Page 6 of 9
       believe that the forensic lab report identifying the substance specifically as

       “Marijuana” would have identified the substance as such if it were not.

       Significantly, Jones did not object to the validity of the forensic lab’s testing

       procedures or methodologies underlying its conclusion that the substance was

       marijuana as defined by applicable statute, and he never once suggested during

       trial that the substance found in his possession might have been industrial hemp

       rather than marijuana. To the extent that Jones implies that the State was

       required to present a lab report that contained a finding that the substance was

       not industrial hemp, that is simply not the case. 2


[12]   Contrary to Jones’s suggestion, it was not the State’s burden to prove what the

       substance was not; meaning, the State was not required to establish that the

       substance in the blunt was not industrial hemp. Rather, it was the State’s burden

       to prove that the substance in the blunt was marijuana. The police officer’s

       testimony, coupled with the stipulated-to forensic lab report concluding that the




       2
         Jones argues that the State was required to prove that the substance was not industrial hemp by proving that
       “the crop wide average” THC concentration for the substance tested exceeded “three-tenths of one percent
       (0.3%) on a dry weight basis.” See Ind. Code § 15-15-13-6. How exactly the State could have acquired and
       presented evidence regarding “the crop wide average” THC concentration for the vegetation in the blunt is
       unknown to us. The language of the industrial hemp statute was clearly intended to legalize and regulate
       hemp farming rather than provide an additional evidentiary hurdle for the State in prosecutions for marijuana
       possession.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2161 | March 24, 2020                    Page 7 of 9
[13]   vegetation in the blunt was, in fact, marijuana, was sufficient to do so.3 The

       State presented sufficient evidence to support Jones’s conviction.


           Section 2 – The trial court did not commit fundamental error
                               in instructing the jury.
[14]   Jones next argues that the trial court committed fundamental error in failing to

       instruct the jury regarding the definition of industrial hemp. Jones concedes

       that he did not tender the instruction that he now asserts should have been

       given, and that such failure has resulted in waiver of the issue. See Ortiz v. State,

       766 N.E.2d 370, 375 (Ind. 2002) (“failure to tender an instruction results in

       waiver of the issue for review”). Thus, he asserts that fundamental error

       occurred when the trial court failed to sua sponte instruct the jury on the

       definition of industrial hemp. An error is fundamental if it clearly and blatantly

       violated basic principles of due process resulting in “undeniable and substantial

       potential for harm.” Batchelor v. State, 119 N.E.3d 550, 559 (Ind. 2019) (citation

       omitted). Fundamental error is an “extremely narrow exception to the waiver

       rule,” and a defendant “bears the heavy burden of showing that a fair trial was

       impossible.” Harris v. State, 76 N.E.3d 137, 139 (Ind. 2017).




       3
         Jones’s brief includes numerous citations to material outside the record. We remind Jones that “[i]t is well
       settled that matters outside the record cannot be considered by this [C]ourt on appeal.” LHT Capital, LLC v.
       Ind. Horse Racing Com’n, 891 N.E.2d 646, 654 (Ind. Ct. App. 2008) (citation omitted). Indeed, “[a] judge
       must not independently investigate facts in a case and must consider only the evidence presented.” See A.B. v.
       State, 885 N.E.2d 1223, 1224 (Ind. 2008) (citing Ind. Code of Judicial Conduct, Commentary to Canon 3B).



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2161 | March 24, 2020                    Page 8 of 9
[15]   Jones has not met that heavy burden. Jones is claiming that, in addition to

       giving the statutory definition of marijuana, which includes the substances that

       are excluded from the definition, the trial court was required to sua sponte also

       give an instruction specifically defining one of the substances, industrial hemp,

       that is not marijuana. He makes this assertion despite the fact that he presented

       no evidence or argument during trial that the substance found in his vehicle was

       industrial hemp. To say that such an instruction, when given completely out of

       context as Jones suggests, would have served to confuse the jury would be an

       understatement. Jones is essentially arguing that he was deprived of a fair trial

       because the trial court failed to act as his advocate and advance a novel theory

       that was never raised and that was unsupported by the evidence. His argument

       in unavailing. See Santiago v. State, 985 N.E.2d 760, 761 (Ind. Ct. App. 2013)

       (jury instruction must be supported by evidence and should not serve to mislead

       jury as to law in case). Jones has not met his burden to establish that the trial

       court’s instruction of the jury resulted in undeniable and substantial potential

       for harm. We affirm his conviction.


[16]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2161 | March 24, 2020   Page 9 of 9
