Reversal: THC candy packages wrongly admitted under hearsay exception rule

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A woman has been cleared of a drug-related charge after the Court of Appeals of Indiana concluded two packages of THC candies seized from a search warrant of her bedroom were wrongly admitted under the market reports exception to hearsay.

In February 2020, the Carmel Police Department responded to a disturbance at a home where Lisa Rose Fedij was living alone. Officer Shelby Jellison spoke with Fedij, who came out of her bedroom just near the front door.

Jellison immediately smelled the odor of burnt hemp or marijuana coming from Fedij’s bedroom, but Fedij refused to let the officer search it. After securing a search warrant to do so, Jellison and another officer found multiple drug-related items inside the room including packages of candy and liquid with writings on the outside that indicated the presence of THC and a liquid package with similar markings.

Fedij was charged with Class A misdemeanor possession of marijuana, Class B misdemeanor possession of marijuana and Class C misdemeanor possession of paraphernalia.

During trial, Jellison stated that she was not trained on the smell of burnt hemp or on any differences that may exist between the smell of burnt hemp and burnt marijuana.

Meanwhile, the trial court permitted the admission of photos of the candy packages, which stated the products contained 60 mg of THC and 80-85% of THC, respectively. Fedij unsuccessfully objected on the grounds that the packages’ writing and symbols were inadmissible hearsay.

Separate analyses by both the CPD and the Miami Valley Regional Crime Laboratory of the plant material and the candies found in Fedij’s room could not differentiate the material between hemp and marijuana or how much THC they contained. The state later told the trial court that it was relying on the candy packages and “circumstantial” evidence to show the percent concentration of THC in the candy, liquid and plant material.

The judge ruled against Fedij, finding her guilty on all counts, but the Court of Appeals partially reversed in Lisa Rose Fedij v. State of Indiana, 21A-CR-1481.

The COA found the trial court abused its discretion when it admitted the writing and symbols from packages in Fedij’s possession into evidence under the market reports exception to hearsay, Evidence Rule 803(17).

“There is no dispute in this appeal that the writings and symbols on the Hard Drops package and the Exotic Carts package were hearsay,” Judge Paul D. Mathias wrote, concluding that the trial court erred when it relied on Reemer v. State, 835 N.E.2d 1005, 1007 (Ind. 2005) and Forler v. State, 846 N.E.2d 266 (Ind. Ct. App. 2006) to admit the writing and symbols on the packages under the market reports exception.

Unlike the labels on pharmaceuticals, the COA noted that nothing in the writings or symbols of the packages in Fedij’s room provided a detailed analysis of the products’ chemical compositions, their directions for use or specific warnings from their misuse.

It also found that unlike the dangerous product at issue in Forler, there was no indication that the products in Fedij’s case contained ingredients that could cause immediate and serious injury if the products were misused.

“There is no basis in this record to conclude under that exception that the packages contained sufficient indicia of reliability for the trustworthiness of their representations,” Mathias wrote. “Thus, the writing and symbols on the packages contained inadmissible hearsay, and they should have been excluded.”

The COA also held that the state failed to present sufficient evidence to show that Fedij possessed marijuana and therefore reversed her Class A misdemeanor conviction. However, it affirmed Fedij’s conviction for Class C misdemeanor possession of paraphernalia based on a bong, smoking pipe and smoking bowl found during the search.

“Thus, we affirm in part, reverse in part, and remand with instructions for the trial court to vacate Fedij’s conviction and sentence for the Class A misdemeanor conviction,” the court concluded.

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