A.M. v. State

• Decision Date: 07 January 2013
• Docket Number: No. 67A01–1205–JV–211.,67A01–1205–JV–211.
• Parties: A.M., Appellant–Respondent, v. STATE of Indiana, Appellee–Petitioner.
• Court: Indiana Appellate Court

981 N.E.2d 91

A.M., Appellant–Respondent,

v.STATE of Indiana, Appellee–Petitioner.

No. 67A01–1205–JV–211.

Court of Appeals of Indiana.

Nov. 20, 2012.

Ordered Published Jan. 7, 2013.

Joel C. Wieneke, Wieneke Law Office, LLC, Greencastle, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAKER, Judge.

A.M., a minor, was found in possession of a pipe at school that he told school officials that he had used to smoke “spice.” After confiscating the pipe and having A.M. provide a written statement, the school reported A.M. to the local police. Thereafter, the State filed a petition alleging that A.M. was a delinquent child because he had possessed a pipe with the intent to smoke marijuana from it.

A.M. appeals from the juvenile court's order adjudicating him as a delinquent child for Possession of Paraphernalia,¹ an offense that would have been a class A misdemeanor if committed by an adult. Specifically, A.M. contends that there was insufficient evidence supporting the adjudication because the State failed to prove beyond a reasonable doubt that he intended to use the pipe to introduce a controlled substance, namely marijuana, into his body. Concluding that the State failed to present sufficient evidence, we reverse the judgment of the juvenile court.

FACTS

On January 11, 2012, Assistant Principal Richard Scott Weltz of Greencastle Middle School learned that one of A.M.'s classmates had observed a pipe sticking out of A.M.'s pants pocket. After learning this, Weltz called A.M. out of the classroom and escorted him to the assistant principal's office, where Principal Tamera Walker joined them. Weltz and Walker told A.M. that they “were aware that there could be a situation where he was in possession of something that should not be brought to school and that [they] were interested in knowing more about that.” Tr. p. 22. Without saying anything, A.M. retrieved a pipe from his sock and laid it on Weltz's desk.

After seeing the pipe, Weltz and Walker asked A.M. where he had acquired the pipe and why he had brought it to school. A.M. answered these questions. The school officials also asked if A.M. had any other prohibited items at school. A.M. emptied his pants pockets, turned them inside out, and pulled up his pants legs, indicating he had no further contraband in his pockets or his socks.

In addition to questioning A.M., Weltz and Walker “had [A.M.] write out a statement that explained having the pipe at school and why he came about bringing it to school.” Id. at 23. This statement read:

I got in trobel [sic] today because I had a pipe on me and what a pipe is is ... smothing [sic] were [sic] you smoke drug's [sic] out of it. The last thing I smoked out of it was spice[.] Spice is like weed but it has different flavor than weed and spice can kill you aloot [sic] faster than weed can. The pipe I have I got it from my cousin [A.J.] and I gave him mine[.] I got my pipe from someone named [J.Y.] like 3 or 4 mount's [sic] ago.

Petitioner's Ex. 1.

After A.M. provided this statement, Weltz notified the Greencastle Police Department. Greencastle Middle School has a policy of always notifying the police when it discovers evidence of drug use or paraphernalia within the school. When Officer Jeff Modlin arrived, he went directly to Weltz's office. Weltz apprised Officer Modlin that A.M. had brought a pipe to school, and Officer Modlin asked to speak to A.M.'s mother.

Assistant Principal Weltz called A.M.'s mother, and Officer Modlin informed her of the situation and obtained her consent to speak to A.M. During this conversation, A.M.'s mother was never permitted to speak directly to A.M. nor was she asked whether she would want to speak to A.M. After hanging up with A.M.'s mother, Officer Modlin asked A.M. whether the pipe that he had been handed by the school officials was the pipe that A.M. had placed on Weltz's desk. A.M. stated that it was.

The State filed a petition alleging that A.M. was a delinquent child. More particularly, the petition alleged that A.M. was a delinquent child because:

On or about January 11, 2012, in Putnam County, Indiana, [A.M.] did knowingly or intentionally possess a raw material, instrument, device, or object, to-wit: marijuana pipe; that the defendant intended to use for introducing into the defendant's body of a controlled substance, to-wit: marijuana, contrary to the form and statue [sic] in such case made and provided, the offense being Possession of Paraphernalia, I.C. 35–48–4–8.3(a)(3), an offense which would be ... a Class A Misdemeanor if committed by an adult.

Appellant's App. p. 7.²

A.M. moved to suppress all of his statements made on January 11, 2012, because the school did not call his mother until after he had already produced the pipe, made statements about the pipe, and given his written statement, and because Officer Modlin questioned him without providing his mother with an opportunity to speak with him. On April 9, 2012, the trial court heard evidence on this motion. The assistant principal testified that it would not have been an inconvenience to call A.M.'s mother at work before questioning A.M. about the pipe, and when he did call her at work, there was only a short delay before he spoke to her.

Also during this hearing, Officer Modlin testified that his professional opinion was that the pipe had been used for smoking marijuana and nothing else. He acknowledged that the pipe could be used for smoking other substances as well, such as “spice,” which Officer Modlin testified was another name for “synthetic marijuana.” Tr. p. 33. Officer Modlin further testified that he detected marijuana residue in the pipe when he first handled it, and he believed the residue was that of marijuana because it had the “odor of” marijuana. Id. at 34. However, on cross-examination, Officer Modlin admitted that the odors of burnt marijuana and burnt “spice” are “pretty close to the same thing.” Id. at 35. When pressed further about his ability to distinguish between the two odors, Officer Modlin stated, “There's probably not going to be much difference at all. You would have to look at the chemical makeup between the two.” Id. at 36. He stated that to decisively determine whether the residue was that of marijuana or “spice,” “that's going to have to be something that a laboratory is going to have to come back on.” Id. In conclusion, Officer Modlin testified that “it smelled more like marijuana” to him, but he admitted he “could be wrong.” Id.

The juvenile court suppressed the statement A.M. made to Officer Modlin but denied A.M.'s motion to suppress his oral statements to the school officials as well as his written statement. The juvenile court then moved directly to the fact-finding hearing, incorporating the testimony heard and the exhibits presented during the suppression hearing into the record. Additional testimony was heard from A.M.'s mother, and at the conclusion of the evidence, the juvenile court found that the State had met its burden on its petition alleging delinquency possession of paraphernalia.

DISCUSSION AND DECISION

A.M.'s sole contention on appeal is that the evidence presented by the State was insufficient to support his adjudication as a delinquent child. More particularly, A.M. asserts that Officer Modlin's testimony was inadequate to prove that he intended to use the pipe to smoke marijuana. Additionally, A.M. claims that because the State failed to introduce any evidence that “spice” was a controlled substance, the State's evidence was also insufficient to prove that A.M.'s adjudication as a delinquent child was proper on the basis that he intended to use the pipe to smoke “spice.” Appellant's Br. p. 5–6.

In resolving a claim that the evidence supporting an adjudication of juvenile delinquency is insufficient, we apply the standard of review that applies to all sufficiency matters. Johnson v. State, 719 N.E.2d 445, 448 (Ind.Ct.App.1999). Accordingly, we consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.2007). We do not reweigh the evidence or assess the credibility of witnesses, and we consider conflicting evidence most favorably to the trial court's ruling. Id. We will affirm if there is substantial evidence of probative value from which the trier of fact could reasonably infer that the appellant was guilty beyond a reasonable doubt. Dabner v. State, 258 Ind. 179, 182, 279 N.E.2d 797, 798 (1972). But we will reverse if no reasonable trier of fact could find the elements of the offense proven beyond a reasonable doubt. Drane, 867 N.E.2d at 146.

In juvenile delinquency proceedings, the State must prove every element of the offense beyond a reasonable doubt. A.B. v. State, 885 N.E.2d 1223, 1226 (Ind.2008). It is generally not necessary that the evidence overcomes “every reasonable hypothesis of innocence.” Drane, 867 N.E.2d at 147. However, evidence that merely tends to establish suspicion of guilt, rather than proof of it, is insufficient to sustain a guilty verdict. Easton v. State, 248 Ind. 338, 344, 228 N.E.2d 6, 10–11 (1967).

In the instant case, A.M. was accused of knowingly or intentionally violating Indiana Code section 35–48–4–8.3(a), which provides:

A person who possesses a raw material, an instrument, a device, or other object that the person intends to use for:

(1) introducing into the person's body a controlled substance;

(2) testing the strength, effectiveness, or purity of a controlled substance; or

(3) enhancing the effect of a controlled substance;

in violation of this chapter commits ... possessing paraphernalia.

See Appellant's App. p. 7.

Under Indiana law, a controlled substance for the purpose of the possession of paraphernalia statute is defined as “a drug, substance, or immediate precursor in schedule I, II, III, IV, or V.” Ind. Code § 35–48–1–9....