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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.

FILED
Feb 29 2008, 9:31 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: DONALD C. SWANSON, JR. Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana ARTHUR THADDEUS PERRY Deputy Attorney General Indianapolis, Indiana

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

No. 02A05-0709-CR-549

APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Kenneth Scheibenberger, Judge Cause No. 02D04-0610-FD-908

February 29, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge

Case Summary James Johnston appeals his conviction for Class D felony possession of a controlled substance. We affirm. Issue Johnston raises one issue, which we restate as whether his conviction is supported by sufficient evidence. Facts On October 20, 2006, Officer Mark Deshaies of the Fort Wayne Police Department responded to a traffic accident in Fort Wayne. Johnston was the driver of one of the vehicles involved in this accident and Officer Deshaies conducted a search of Johnston. During this search, a sealed plastic bag with white pills was found in

Johnston's front pocket. Johnston explained to Officer Deshaies that the pills were Xanax, that he took them for back pain, and that they were a friend's prescription. The State charged Johnston with one count of Class D felony possession of a controlled substance. During trial, Johnston testified that he had a prescription for the Xanax due to anxiety. However, it was also revealed that this particular prescription was not given to Johnston until November 2, 2006, thirteen days after he was found in possession of the drug. Johnston next presented evidence of a valid prescription for alprazolam, a generic version of Xanax, that was given to him on November 14, 2000

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