Court of Appeals of Indiana | Opin ion 19A

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- 2951 | March 25, 2020 Page 1 of 3 A TTORNEY FOR A PPELLANT Jon A. Keyes Allen Wellman McNew Harvey, LLP Greenfield, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

Jermaine T. Dearman , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. March 25, 2020 Court of Appeals Cas e No. 19A- CR -2951 Appeal fr o m the Hancock Sup erior Court The Honor able Dan E. Marshall, Jud ge Tr ial C ourt Cause N o. 3 0 D02-1906-F 6 -1149

Najam , Judge . 

### Statement of the Case
[1] Jermaine Dearman appeals his conviction for possession of a controlle d

su bstance, as a Level 6 felony, following a bench trial. Dearman presents aCourt of Appeals of Indiana | Opin ion 19A

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- 2951 | March 25, 2020 Page 2 of 3 single issue for our review, namely, whether the State presented sufficient evidence to support his conviction. We reverse. 

### Facts and Procedural Histor y [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

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- 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 Co unt I, the parties stipulated to the facts , including that Dearman possessed vape cartridges containing hash oil

. I n his opening statement, defense counsel argued that Dearman could not be convicted as charged because Indiana Code Section 35

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- 7(a) “sp ecifically 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 C ount 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

“ vap e cartridges containing THC hash oil.” Agreed Stipulation of Facts at 1.Court of Appeals of Indiana | Opin ion 19A

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- 2951 | March 25, 2020 Page 3 of 3 Again, Dearman was charged and convicted under Indiana Code Section 35

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- 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 o n appeal, “marijuana” is defined in relevant part as “including hashish and hash oil .” I.C. § 35

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- 19 (a). Thus, a defendant’s possession of hash oil is not a violation of Indiana Code Section 35

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- 7.

[5] We hold that, because the undisputed evidence sh ows 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

.