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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: VICTORIA L. BAILEY Marion County Public Defender Agency Indianapolis, Indiana IAN M. FLEMING Certified Legal Intern Marion County Public Defender Agency Indianapolis, Indiana

FILED
Dec 01 2010, 8:23 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana MONIKA PREKOPA TALBOT Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
DEMOND WITHERS, Appellant- Defendant, vs. STATE OF INDIANA, Appellee- Plaintiff, ) ) ) ) ) ) ) ) )

No. 49A04-1003-CR-182

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Richard Sallee, Judge Cause No. 49F10-0912-CM-98468

December 1, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issue Demond Withers appeals his conviction, following a bench trial, of possession of paraphernalia, a Class A misdemeanor. Withers raises the sole issue of whether

sufficient evidence supports his conviction. Concluding the evidence is sufficient, we affirm. Facts and Procedural History On December 1, 2009, Officer Lawlis of the Indianapolis Metropolitan Police Department observed a car parked in a lane of traffic and activated his red and blue lights to approach and investigate. Withers's brother was sitting on the curb, and Withers was in the car's driver's seat. In response to Officer Lawlis's questions, Withers was partly nonresponsive and otherwise incoherent, could not hold his head straight, and had glassy eyes. Officer Lawlis "smelled a strong odor of burnt marijuana that permeated the entire vehicle." Transcript at 15. Officer Lawlis also recognized a "faint[]" marijuana odor coming from Withers. Id. at 30.1 According to Officer Lawlis's testimony, Withers "appeared to be under the influence of something much stronger than marijuana." Id. at 21. Officer Lawlis retrieved Withers's identification from his back pocket, ran a license check, and arrested Withers for driving while his license was suspended. During a search incident to the arrest, Officer Lawlis found rolling papers in Withers's back pocket. According to Officer Lawlis's testimony, such rolling papers are commonly used to roll marijuana cigarettes and thereby introduce marijuana into the body. Officer

Although Officer Lawlis was not a specially trained "Drug Recognition Expert," he testified he had training in recognizing the odor of burnt marijuana. Tr. at 25, 28.

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Lawlis's search of the car did not uncover any marijuana. Officer McCauley, who responded to the scene as backup, observed that Withers appeared "out of it," did not know where he was, and appeared to be under the influence of "some type of narcotics." Id. at 34. Officer McCauley did not notice any odor of alcohol coming from Withers. The State charged Withers with possession of paraphernalia and driving while suspended, both Class A misdemeanors. Following a bench trial, the trial court found Withers guilty of the former count and not guilty of the latter. Withers now appeals his conviction of possession of paraphernalia. Discussion and Decision I. Standard of Review When reviewing the sufficiency of the evidence to support a conviction, we neither reweigh the evidence nor judge the credibility of witnesses. Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005). Rather, we consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Therefore, we will affirm the conviction if the probative evidence and reasonable inferences drawn therefrom could have allowed a reasonable trier of fact to find all elements of the crime proven beyond a reasonable doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). II. Evidence of Intent Withers argues the State failed to present sufficient evidence to support the intent element of the charged offense. To convict Withers of possession of paraphernalia as a Class A misdemeanor, the State must prove beyond a reasonable doubt Withers (1)
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knowingly or intentionally (2) possessed rolling papers that he (3) intended to use for introducing marijuana into his body. See Ind. Code

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