Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-837 | July 16, 2015 Page 1 of 4

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

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

Patricia Caress McMath

Marion County Public Defender Agency

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory Zoeller

Attorney General of Indiana

Cynthia L. Ploughe 

Deputy Attorney General

Indianapolis, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

Kenny Weaver,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff,

July 16, 2015

Court of Appeals Case No.

49A02-1412-CR-837

Appeal from the Marion Superior 

Court

The Honorable Marshelle 

Broadwell, Judge pro tempore

Cause No. 49G10-1409-CM-45040

Bradford, Judge.

Case Summary

[1] Appellee-Plaintiff the State of Indiana (“the State”) charged AppellantDefendant 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 2 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 3 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 4 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.