                                                                                FILED
                                                                           Mar 25 2020, 10:39 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Jon A. Keyes                                              Curtis T. Hill, Jr.
      Allen Wellman McNew Harvey, LLP                           Attorney General of Indiana
      Greenfield, Indiana
                                                                Ellen H. Meilaender
                                                                Supervising Deputy Attorney
                                                                General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jermaine T. Dearman,                                      March 25, 2020
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                19A-CR-2951
              v.                                                Appeal from the Hancock Superior
                                                                Court
      State of Indiana,                                         The Honorable Dan E. Marshall,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                30D02-1906-F6-1149



      Najam, Judge.


                                        Statement of the Case
[1]   Jermaine Dearman appeals his conviction for possession of a controlled

      substance, as a Level 6 felony, following a bench trial. Dearman presents a


      Court of Appeals of Indiana | Opinion 19A-CR-2951 | March 25, 2020                            Page 1 of 3
      single issue for our review, namely, whether the State presented sufficient

      evidence to support his conviction. We reverse.


                                  Facts and Procedural History
[2]   On June 10, 2019, the State charged Dearman with possession of a controlled

      substance, as a Level 6 felony (“Count I”), and possession of marijuana, as a

      Class A misdemeanor (“Count II”). The information for Count I alleged that

      Dearman violated Indiana Code Section 35-48-4-7(a) (2019) when he possessed

      “Tetrahydrocannabinols [‘THC’] (pure or adulterated) listed in Schedule I”

      while in the possession of a handgun. Appellant’s App. Vol. 2 at 13. Dearman

      pleaded guilty to Count II.


[3]   At a bench trial on Count I, the parties stipulated to the facts, including that

      Dearman possessed vape cartridges containing hash oil. In his opening

      statement, defense counsel argued that Dearman could not be convicted as

      charged because Indiana Code Section 35-48-4-7(a) “specifically excludes

      marijuana,” which is defined in relevant part as hash oil. Tr. at 14. The trial

      court took the matter under advisement and found Dearman guilty as charged

      and entered judgment of conviction for Count I. This appeal ensued.


                                      Discussion and Decision
[4]   Dearman contends, and the State agrees, that his conviction on Count I must be

      vacated. At trial on Count I, the parties stipulated that Dearman possessed

      “vape cartridges containing THC hash oil.” Agreed Stipulation of Facts at 1.



      Court of Appeals of Indiana | Opinion 19A-CR-2951 | March 25, 2020         Page 2 of 3
      Again, Dearman was charged and convicted under Indiana Code Section 35-

      48-4-7, which provides in relevant part that


              (a) A person who, without a valid prescription or order of a
              practitioner acting in the course of the practitioner’s professional
              practice, knowingly or intentionally possesses a:

                       (1) controlled substance (pure or adulterated); or

                       (2) controlled substance analog (pure or adulterated);

              classified in schedule I, II, III, or IV, except marijuana, hashish, or
              salvia, commits possession of a controlled substance, a Class A
              misdemeanor, except as provided in subsection (b).

              (b) The offense is a Level 6 felony if the person commits the
              offense and an enhancing circumstance applies.


      (Emphasis added). As the parties acknowledge on appeal, “marijuana” is

      defined in relevant part as “including hashish and hash oil.” I.C. § 35-48-1-

      19(a). Thus, a defendant’s possession of hash oil is not a violation of Indiana

      Code Section 35-48-4-7.


[5]   We hold that, because the undisputed evidence shows that Dearman possessed

      hash oil, his conviction for possession of a controlled substance, as a Level 6

      felony, must be vacated.


[6]   Reversed.


      Kirsch, J., and Brown, J., concur.


      Court of Appeals of Indiana | Opinion 19A-CR-2951 | March 25, 2020                Page 3 of 3
