      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                       Jul 16 2015, 8:40 am
      Memorandum Decision shall not be regarded as
      precedent or cited before 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
      Patricia Caress McMath                                    Gregory Zoeller
      Marion County Public Defender Agency                      Attorney General of Indiana
      Indianapolis, Indiana
                                                                Cynthia L. Ploughe
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Kenny Weaver,                                             July 16, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A02-1412-CR-837
              v.                                                Appeal from the Marion Superior
                                                                Court
                                                                The Honorable Marshelle
      State of Indiana,                                         Broadwell, Judge pro tempore
      Appellee-Plaintiff,                                       Cause No. 49G10-1409-CM-45040




      Bradford, Judge.



                                            Case Summary
[1]   Appellee-Plaintiff the State of Indiana (“the State”) charged Appellant-

      Defendant Kenny Weaver with Class A misdemeanor possession of a synthetic


      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-837 | July 16, 2015      Page 1 of 4
      drug lookalike substance after a police officer discovered Weaver in possession

      of a white baggie containing a green leafy substance. The only evidence

      presented by the State that the substance was an illegal synthetic drug lookalike

      was testimony from the arresting officer that Weaver admitted that the

      substance was “spice,” a term commonly used to refer to synthetic forms of

      marijuana.1 The trial court found Weaver guilty as charged. On appeal,

      Weaver argues that there is insufficient evidence to support his conviction and

      the State agrees. We reverse Weaver’s conviction for possession of a synthetic

      drug lookalike substance.



                                 Facts and Procedural History
[2]   On September 23, 2014, Indianapolis Metropolitan Police Officer Shawn

      Romeril identified Weaver’s vehicle as having an improperly displayed

      temporary license plate. A BMV check revealed that the temporary plate had

      been issued to a different car. (Tr. 7-8) After conducting a traffic stop, Officer

      Romeril learned that Weaver had never been issued a driver’s license and had

      an active warrant for his arrest. (Tr. 9, 12) Officer Romeril placed Weaver

      under arrest and, upon searching his person, found a white baggie in Weaver’s

      pocket containing a green leafy substance. (Tr. 13) Weaver told Officer

      Romeril that the leafy substance was “spice,” not marijuana. Tr. p. 20.




      1
          Elvers v. State, 22 N.E.3d 824, 828 (Ind. Ct. App. 2014).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-837 | July 16, 2015   Page 2 of 4
[3]   The State charged Weaver with Class A misdemeanor possession of a synthetic

      drug lookalike substance and Class C misdemeanor operating a vehicle without

      ever receiving a license. (App. 5, 13) The only evidence presented by the State

      that the substance was an illegal synthetic drug lookalike was testimony from

      Officer Romeril that Weaver stated that the substance was spice. (Tr. 20) The

      State conducted no chemical analysis to verify the nature of the substance. (Tr.

      28) A bench trial was conducted on November 10, 2014 at which the trial court

      found Weaver guilty as charged and sentenced him to a 365-day term with 305

      days suspended, noting that Weaver had 60 days of credit for time served.



                                 Discussion and Decision
[4]   Weaver challenges only his conviction for possession of a synthetic drug

      lookalike substance, arguing (1) that there is insufficient evidence to support his

      conviction and (2) that the Indiana statutes defining “synthetic drug lookalike

      substance” are unconstitutionally vague. Because the State concedes and we

      find that there is insufficient evidence to support Weaver’s conviction, we need

      not address the constitutionality of the statute.

[5]           When reviewing the sufficiency of the evidence, we consider only the
              probative evidence and reasonable inferences supporting the verdict.
              Mork v. State, 912 N.E.2d 408, 411 (Ind. Ct. App. 2009) (citing Drane v.
              State, 867 N.E.2d 144, 146 (Ind. 2007)). We do not reweigh the
              evidence or assess witness credibility. Id. We consider conflicting
              evidence most favorably 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. Id.
      Boggs v. State, 928 N.E.2d 855, 864 (Ind. Ct. App. 2010).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-837 | July 16, 2015   Page 3 of 4
[6]   “[W]hen the charge is possession of a controlled substance, the courts require

      more than a Defendant’s extrajudicial statement of identification of the

      substance to show that the substance possessed was indeed contraband.”

      Warthan v. State, 440 N.E.2d 657, 661 (Ind. 1982). The only evidence that the

      leafy substance in Weaver’s possession was an illegal substance was Weaver’s

      own statement to Officer Romeril that it was “spice.” Tr. p. 20. Based on

      Warthan, this evidence alone is insufficient to prove that Weaver was in

      possession of a synthetic lookalike drug. In its brief, the State acknowledges

      that “its evidence did not establish that the substance that [Weaver] possessed

      meets the definition of ‘synthetic drug lookalike substance.’” Appellee’s Br. p.

      4. Accordingly, we reverse Weaver’s conviction for possession of a synthetic

      drug lookalike substance. Weaver’s conviction for class C misdemeanor

      operating a vehicle without having received a license remains unaffected by this

      judgment.


[7]   The judgment of the trial court is affirmed in part and reversed in part.


      Vaidik, C.J., and Kirsch, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-837 | July 16, 2015   Page 4 of 4
