Court of Appeals of Indiana | Opinion 23A-CR-1442 | January 9, 2024 Page 1 of 7

ATTORNEY FOR APPELLANT

Christopher Kunz

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Theodore E. Rokita

Attorney General of Indiana

Kathy Bradley

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Steven T. Lakes,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

January 9, 2024

Court of Appeals Case No.

23A-CR-1442

Appeal from the Franklin Circuit 

Court

The Honorable J. Steven Cox, 

Judge

Trial Court Cause No.

24C01-2105-F3-336

Opinion by Judge Weissmann

Chief Judge Altice and Judge Kenworthy concur.
Court of Appeals of Indiana | Opinion 23A-CR-1442 | January 9, 2024 Page 2 of 7

Weissmann, Judge.

[1] Police stopped Steven Lakes for a traffic violation and found that he possessed 

sizeable amounts of methamphetamine and a substance resembling marijuana

that tested positive for the “presence of marijuana.” For this, a jury found Lakes 

guilty of dealing in and possession of methamphetamine, possession of 

marijuana, and two other drug-related crimes. 

[2] On appeal, Lakes argues that the State presented insufficient evidence to 

support his conviction for possession of marijuana. He also alleges, and the 

State concedes, that his possession of methamphetamine conviction should be 

vacated on double jeopardy grounds. We agree on both fronts and thus reverse 

Lakes’s possession of marijuana conviction and remand for the trial court to 

vacate his conviction for the possession of methamphetamine. 

Facts

[3] Brookville Police Lieutenant Ryan Geiser initiated a traffic stop of Lakes for 

failing to signal before turning and because Lakes’s vehicle had an excessively 

loud muffler. During the stop, Lieutenant Geiser detected a strong odor of 

marijuana coming from inside Lakes’s vehicle. A subsequent search of the 

vehicle revealed a clear bag with a substance that field-tested positive for 

marijuana. The search also revealed 10 grams of methamphetamine, a digital 

scale, a smoking pipe, and a small container holding pills of the controlled 

substance buprenorphine.
Court of Appeals of Indiana | Opinion 23A-CR-1442 | January 9, 2024 Page 3 of 7

[4] The State charged Lakes with five crimes: (1) Level 3 felony dealing in 

methamphetamine; (2) Level 5 felony possession of methamphetamine; (3)

Class A misdemeanor possession of a controlled substance; (4) Class B 

misdemeanor possession of marijuana, and (5) Class C misdemeanor 

possession of paraphernalia. A jury found Lakes guilty of all charges, and the 

trial court sentenced him to 15 years imprisonment. On appeal, Lakes 

challenges only his convictions under counts 2 and 4.

Discussion and Decision

I. The State Presented Insufficient Evidence to Prove that 

Lakes Possessed Marijuana.

[5] When reviewing the sufficiency of the evidence supporting a conviction, we 

consider only the probative evidence and reasonable inferences that support the 

judgment. Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). A conviction will be 

affirmed unless no reasonable factfinder could find the elements of the crime 

proven beyond a reasonable doubt. Id. We do not reweigh the evidence or judge 

the credibility of the witnesses. Id.

[6] To convict Lakes of the possession of marijuana, the State needed to prove, 

beyond a reasonable doubt, that he knowingly or intentionally possessed 

marijuana. Ind. Code § 35-48-4-11(a)(1). The Indiana Code defines 

“marijuana” as “any part of the plant genus Cannabis whether growing or not; 

the seeds thereof; the resin extracted from any part of the plant, including 

hashish and hash oil; any compound, manufacture, salt, derivative, mixture, or 

preparation of the plant, its seeds or resin.” Ind. Code § 35-48-1-19(a). This 
Court of Appeals of Indiana | Opinion 23A-CR-1442 | January 9, 2024 Page 4 of 7

definition does not encompass hemp. “Hemp” refers to “the plant Cannabis 

sativa L. and any part of that plant . . . with a delta-9-tetrahydrocannabinol 

concentration of not more than three-tenths of one percent (0.3%) on a dry 

weight basis.” Ind. Code § 15-15-13-6.

[7] These statutory definitions inspire Lakes’s claim. Read together, they 

distinguish legal and illegal cannabis substances by their concentration of delta9-THC. Toledo Rojo v. State, 202 N.E.3d 1085, 1088 (Ind. Ct. App. 2022), trans. 

denied. At bottom, “to be illegal, the concentration of delta-9-THC must be 

more than 0.3%.” Id. As a recent decision of this Court put it: 

Our General Assembly has established a clear distinction 

between legal hemp and illegal marijuana based on the THC 

concentration present in the plant material, the effect being to 

now require the State to prove beyond a reasonable doubt that a 

substance is marijuana by proving that the substance's delta-9-

THC concentration exceeds 0.3% on a dry weight basis.

Fritz v. State, No. 22A-CR-2340, 2023 WL 7478355, at *8 (Ind. Ct. App. Nov. 

13, 2023). 

[8] This Court has lately vacated several marijuana convictions for the State’s 

failure to make this showing. See, e.g., id. at *8; Toledo Rojo, 202 N.E.3d at 1087-

90; Fedji v. State, 186 N.E.3d 696, 707-09 (Ind. Ct. App. 2022). The common 

thread in each of these cases was the State’s failure to present evidence 

establishing the THC concentration in the alleged marijuana. So too here. 
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[9] On the record before us, the only evidence that could be interpreted as 

establishing the delta-9-THC concentration of Lakes’s substance is that 

Lieutenant Geiser conducted a field test that revealed “a positive presence of 

marijuana.” Tr. Vol. III, p. 155. The details about how the field test arrived at 

this conclusion were not explained at Lakes’s trial. And though the State sent 

the suspected methamphetamine to the Indiana State Police Lab for further 

testing, the suspected marijuana was not tested. 

[10] This leads to the fatal flaw underpinning Lakes’s marijuana conviction: with the 

legalization of hemp, Lieutenant Geiser’s generic statement no longer satisfies

the State’s burden of proof. Although “the State [does] not need to prove the 

exact percent concentration of THC,” it must still “prove the substance 

possessed was marijuana.” Fedij, 186 N.E.3d at 709. Because the difference 

between marijuana and hemp turns on whether the concentration of delta-9-

THC exceeds 0.3% and the State did not make this showing here, insufficient 

evidence supports Lakes’s marijuana conviction.

[11] The State’s arguments to the contrary fall flat. First, it alleges that Lakes 

essentially admitted that the substance was illegal marijuana when he described 

it as “weed.” Appellee’s Br., p. 12. But given the legalization of some forms of 

the cannabis plant, it is no longer clear beyond a reasonable doubt whether 

“weed” excludes legal products. See also Fritz, 2023 WL 7478355, at *8

(rejecting a similar confession because “it is well-settled that a person may not 

be convicted of a crime based on a nonjudicial confession of guilt”). Nor does 

Lieutenant Geiser’s experience and expertise in identifying marijuana establish 
Court of Appeals of Indiana | Opinion 23A-CR-1442 | January 9, 2024 Page 6 of 7

the substance as the illegal form of the cannabis plant. See id. (citing Fedij, 186 

N.E.3d at 709).

[12] Though each being insufficient on its own, the State asserts that Lakes’s 

admission and Lieutenant Geiser’s identification combine to create a sufficient 

basis for Lakes’s conviction. To be sure, a handful of prior cases have taken the 

State’s view. For example, in Doolin v. State, this Court held that a police 

officer’s “experience, training, and personal observations, along with other 

circumstantial evidence, sufficiently established the identity of the substance as 

marijuana.” 970 N.E.2d 785 (Ind. Ct. App. 2012) (collecting cases). But these

cases pre-date the existence of legal hemp. Ind. Code § 35-48-1-19(b)(6) (2014)

(redefining “marijuana” to exclude “industrial hemp”); Ind. Code § 35-48-1-

19(b)(6) (2019) (changing the exception to simply “hemp”). Thus, the cases the 

State cites did not require a determination of the alleged marijuana’s delta-9-

THC concentration, subsequently lowering the evidentiary bar for the 

circumstantial evidence to clear. Accordingly, we find the State’s cited cases 

inapposite on this point.

[13] Finding insufficient evidence to support it, we reverse Lakes’s Class B 

misdemeanor possession of marijuana conviction.

II. Lakes’s Conviction for Possession of Methamphetamine 

is Vacated on Double Jeopardy Grounds.

[14] Lakes next asks this Court to vacate his conviction for possession of 

methamphetamine because it is a lesser-included offense to his dealing 
Court of Appeals of Indiana | Opinion 23A-CR-1442 | January 9, 2024 Page 7 of 7

conviction and is based on the same underlying facts. With the State conceding 

that this argument is correct, we agree and remand for the trial court to vacate 

Lakes’s possession of methamphetamine conviction.

[15] Reversed and remanded.

Altice, C.J., and Kenworthy, J., concur..