Three-way opinion affirms marijuana conviction

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Three Court of Appeals judges each wrote opinions but affirmed a Grant County man’s conviction of Class D felony possession of marijuana.

In Dontae M. Clark v. State of Indiana, 27A04-1306-CR-269, Clark argued that the court committed fundamental error when it admitted marijuana seized from him when he was searched on a street after police saw him purchase synthetic marijuana at a convenience store. The sample of marijuana seized was not analyzed, though, apparently because the sample was too small, Judge Cale Bradford wrote for the panel.

Panelists concurred that admitting into evidence what detectives confirmed as pot was not fundamental error. They likewise rejected Clark’s Fourth Amendment claim and his argument that the court abused its discretion when it permitted detectives to offer an opinion on the nature of the substance they found on Clark.

“In addition to Detectives Fleece’s and Sizemore’s testimony, there was other circumstantial evidence supporting a finding that Clark possessed illegal drugs," Bradford wrote. "The State produced sufficient evidence to sustain Clark’s conviction for marijuana possession.”

In a concurring opinion, Judge Paul Mathias wrote that because Clark failed to preserve the argument for appeal, “I believe it is unnecessary to address Clark’s evidentiary arguments on the merits.”

In a separate concurrence, Judge Rudy R. Pyle III wrote that efforts to prove the material was marijuana ran into a “roadblock” because Indiana State Police lab policy sets a minimum quantity for analysis.

“There is likely a rational reason behind the laboratory’s policy, but this type of administrative decision impacts prosecutors, defense counsel, judges, jurors, and defendants,” Pyle wrote. “For these reasons, I would respectfully submit that the laboratory’s policy decision be reconsidered by our colleagues in the executive branch.”


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