Preview:

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.

FILED
Sep 01 2011, 9:29 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: SUZY ST. JOHN Marion County Public Defender Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana NICOLE M. SCHUSTER Deputy Attorney General Indianapolis, Indiana

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

No. 49A05-1101-CR-40

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Richard E. Sallee, Judge Cause No. 49F19-1007-CM-58487

September 1, 2011

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE James Casey appeals his convictions for dealing in marijuana, as a Class A misdemeanor, and possession of marijuana, as a Class A misdemeanor, following a bench trial. Casey presents three issues for our review: 1. 2. Whether his convictions violate double jeopardy. Whether the trial court abused its discretion when it permitted a police officer to testify as a skilled witness. Whether the evidence is sufficient to support his dealing in marijuana conviction.

3.

We affirm in part, reverse in part, and remand with instructions. FACTS AND PROCEDURAL HISTORY On July 28, 2010, shortly after midnight, Officer Michael McKenna of the Lawrence Police Department observed Casey and another man standing outside of a gas station in Indianapolis. Officer McKenna had observed the men at that location "several times" during his patrol that night, and he watched as they approached several vehicles and patrons in the gas station parking lot. Transcript at 11. At one point, Officer McKenna saw Casey walk to the rear corner of the building and out of sight momentarily before walking back into the officer's view. Based upon his training and experience as a police officer handling narcotics investigations, Officer McKenna knew that someone "approaching vehicles and . . . people in a parking lot" in the same manner usually indicated drug dealing. Id. at 13. Officer McKenna parked his vehicle in the gas station parking lot, exited, and approached Casey on foot. Officer McKenna identified himself to Casey and asked him
2

to walk to the front of his police vehicle, which Casey did. Officer McKenna asked Casey what he was doing, and Casey responded that he was waiting for his cousin to arrive from across the street so that Casey could pay the cousin's phone bill. Officer McKenna then saw a closed donut box sitting on the ground near where Casey had been standing at the corner of the building. When Officer McKenna had observed Casey throughout the evening, Casey had repeatedly returned to that spot after each contact with patrons in vehicles and on foot. Two other officers arrived at the scene, and Officer McKenna walked over to the donut box and lifted the lid open with his foot. At that point, Casey was approximately ten feet away from the box, and both Officer McKenna and his vehicle were between Casey and the donut box. Casey could not see the contents of the donut box. But once Officer McKenna opened the box, Casey stated, without being asked any questions, "That's not my weed." Transcript at 24. Officer McKenna saw that inside the donut box was a baggie containing eleven smaller baggies of marijuana. One of the other officers placed Casey under arrest. During a search incident to that arrest, Officer McKenna found on Casey's person $41 in cash and three cell phones. The State charged Casey with dealing in marijuana, as a Class A misdemeanor, and possession of marijuana, as a Class A misdemeanor. Following a bench trial, the trial court found Casey guilty as charged and entered judgment and conviction accordingly. This appeal ensued.

3

DISCUSSION AND DECISION Issue One: Double Jeopardy Casey contends, and the State concedes, that his convictions violate double jeopardy. Possession of marijuana is a lesser-included offense of dealing in marijuana. And it is undisputed that the same marijuana was used to prove the element of possession in both the possession and dealing charges. Accordingly, the trial court erred when it entered judgment of conviction and sentence on both crimes. See, e.g., Harrison v. State, 901 N.E.2d 635, 643 (Ind. Ct. App. 2009), trans. denied. We remand to the trial court with instructions to vacate Casey's possession of marijuana conviction. See Ind. Code

Download James Casey v. State of Indiana.pdf

Indiana Law