Felony reversed for man who possessed hash oil

The Indiana Court of Appeals reversed a man’s felony conviction for possession of a controlled substance after finding that his vaping cartridge containing hash oil did not violate state law under which he was charged.

In June 2019, Jermaine Dearman was charged with Level 6 felony possession of a controlled substance and Class A misdemeanor possession of marijuana. The felony count 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. Dearman ultimately pleaded guilty to the Class A misdemeanor, but not the Level 6 felony.

During a bench trial on the felony count in Hancock Superior Court, both parties stipulated to the facts, including that Dearman possessed vape cartridges containing hash oil. Dearman’s defense counsel argued that Dearman could not be convicted as charged because the statute at issue “specifically excludes marijuana,” defined in relevant part as hash oil.

Regardless, the trial court found Dearman guilty and convicted him on the possession of a controlled substance charge. But the Indiana Court of Appeals reversed in Jermaine T. Dearman v. State of Indiana, 19A-CR-2951,  noting that both Dearman and the state agreed that his conviction must be vacated.

“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,” Judge Edward Najam wrote for the unanimous appellate court.

“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,” it concluded, reversing the trial court’s judgment.