Casey R. Greene v. State of Indiana

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

FILED

Jun 25 2012, 9:29 am

establishing the defense of res judicata,

collateral estoppel, or the law of the CLERK

case. of the supreme court,

court of appeals and

tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

SAMUEL S. SHAPIRO GREGORY F. ZOELLER

Bloomington, Indiana Attorney General of Indiana

J.T. WHITEHEAD

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

CASEY R. GREENE, )

)

Appellant-Defendant, )

)

vs. ) No. 07A01-1109-CR-391

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE BROWN CIRCUIT COURT

The Honorable Judith A. Stewart, Judge

Cause No. 07C01-0810-FC-437

June 25, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge

Case Summary

Casey Greene appeals his convictions for Class C felony dealing in marijuana and

Class A misdemeanor resisting law enforcement. We affirm.

Issues

Greene raises several issues, which we restate as:

I. whether the trial court abused its discretion by

admitting marijuana found during a search of Greene’s

property;

II. whether the trial court properly instructed the jury

regarding the definition of marijuana;

III. whether the evidence is sufficient to sustain Greene’s

conviction for Class C felony possession of marijuana;

and

IV. whether Greene’s due process rights were violated.

Facts

On September 26, 2008, Captain Jason Lee, a Conservation Officer for the Indiana

Department of Natural Resources, received information from a confidential informant

that there was a marijuana growing operation near Gatesville Road and Bear Wallow

Road in Brown County. The property at issue was owned by Greene, and it had a locked

gate on the driveway. Captain Lee and Officer Brent Bohbrink drove to the area and

parked at an adjacent property. They walked around a pond and toward an opening in the

forest, where they smelled the strong odor of marijuana. They went closer and saw three

people, several vehicles, and a large white box trailer. Captain Lee used a spotting scope

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and saw that the people were using scissors to process marijuana near the trailer. Captain

Lee and Officer Bohbrink left the area and obtained a search warrant.

They returned to the property later with additional officers. Some of the officers

approached the area from the adjacent property, and other officers entered the property at

its driveway. Greene saw Captain Lee and started running. Jeffrey Smith, Paul Fowler,

and Kevin Rotino were apprehended. Indiana State Trooper Chris Griggs saw Greene,

recognized him, and ordered him to stop, but Greene kept running and escaped. The

officers searched the area and found a large amount of marijuana, drying racks, a

generator, batteries, camouflage netting, fans, and scissors. Captain Lee did not find any

full marijuana plants because when they “got there all of the marijuana had basically been

processed.” Tr. p. 115. The officers later obtained two additional search warrants to

search vehicles and cell phones.

The State charged Greene with Class C felony dealing in marijuana, Class D

felony possession of marijuana, Class A misdemeanor possession of paraphernalia, Class

A misdemeanor resisting law enforcement, and Class B misdemeanor visiting a common

nuisance. The dealing in marijuana charge was a Class C felony due to the recovery of

ten pounds or more of marijuana. Green filed a motion to suppress evidence discovered

as a result of the search warrant, and the trial court denied the motion.

At the trial, the State dismissed the charges of Class A misdemeanor possession of

paraphernalia and Class B misdemeanor visiting a common nuisance. Hailey Newton, a

forensic scientist with the Indiana State Police laboratory, testified regarding the

marijuana, which she received in several large paper bags. Newton testified that she

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emptied the bags of marijuana onto a table and removed “mature stalks” and stems larger

than a pencil. Id. at 216. She then weighed the remaining marijuana. According to

Newton, the marijuana in Exhibit 43 weighed 6.20 pounds, and the marijuana in Exhibit

44 weighed 4.52 pounds, for a total of 10.72 pounds. She then took a sample of the

marijuana for testing and placed the stalks and stems back into the bags.

Smith testified that, in September 2008, Greene offered him an opportunity to

make some money. Smith went to Greene’s Brown County property, and Greene

unlocked the trailer and asked Smith to help “clean” the marijuana. Id. at 238. Smith

worked at the property for three days processing the marijuana. Smith said that Greene

ran from the property when the officers arrived. Smith pled guilty to felony possession of

marijuana and agreed to testify against Greene and the others.

Dr. Eugene Schwilke, a forensic toxicologist with AIT Laboratories, testified on

Greene’s behalf. Schwilke testified that he removed stalks and stems and reweighed the

marijuana in State’s Exhibit 43 and 44. Schwilke testified that the marijuana weighed

9.645 pounds. On cross examination, Schwilke admitted that this was the first time he

had weighed marijuana. He was unaware that Newton had removed part of the marijuana

from the exhibits for testing. He also weighed the marijuana while it was in the bags. He

only weighed one of the paper bags and then estimated the weight of the remaining paper

bags. He did not take into account varying amounts of tape and staples on the paper

bags.

The jury found Greene guilty of Class C felony dealing in marijuana, Class D

felony possession of marijuana, and Class A misdemeanor resisting law enforcement.

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The trial court entered judgment of conviction for Class C felony dealing in marijuana

and Class A misdemeanor resisting law enforcement and sentenced Greene to an

aggregate sentence of five years with two years suspended to probation. Greene now

appeals.

Analysis

I. Admission of Evidence

Greene argues that the trial court abused its discretion by admitting the marijuana

found during a search of his property. We review the trial court’s ruling on the admission

or exclusion of evidence for an abuse of discretion. Roche v. State, 690 N.E.2d 1115,

1134 (Ind. 1997). We reverse only where the decision is clearly against the logic and

effect of the facts and circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997).

According to Greene, Captain Lee’s initial warrantless observations of his

property violated the Fourth Amendment to the United States Constitution and Article 1,

Section 11 of the Indiana Constitution. Greene also argues that the search warrant was

not supported by probable cause because the credibility of the informant was not

established and because the affidavit did not contain a description of Captain Lee’s

training to recognize the smell of marijuana.1

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The State argues that Greene waived this issue by failing to object. Greene did object to Exhibits 43 and

44, which were the large quantities of marijuana found on his property, and made a continuing objection

to that evidence. However, he failed to object to the testimony by Captain Lee regarding his observations

and the search, and he failed to object to the remainder of the evidence found as a result of the search.

“The failure to make a contemporaneous objection to the admission of evidence at trial results in waiver

of the error on appeal.” Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000). “A contemporaneous

objection affords the trial court the opportunity to make a final ruling on the matter in the context in

which the evidence is introduced.” Id. Greene’s failure to properly object results in waiver of appellate

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A. Warrantless Observations

1. United States Constitution

The Fourth Amendment to the Constitution of the United States protects citizens

against unreasonable searches and seizures. Trimble v. State, 842 N.E.2d 798, 801

adhered to on reh’g, 848 N.E.2d 278 (Ind. 2006). In Oliver v. United States, 466 U.S.

170, 183, 104 S. Ct. 1735, 1743-44 (1984), the Supreme Court held that “officers’

information-gathering intrusion on an ‘open field’ did not constitute a Fourth

Amendment search even though it was a trespass at common law.” United States v.

Jones, 132 S. Ct. 945, 953 (2012). “Quite simply, an open field, unlike the curtilage of a

home, . . . is not one of those protected areas enumerated in the Fourth Amendment.” Id.

“The Government’s physical intrusion on such an area . . . is of no Fourth Amendment

significance.” Id.

Greene argues that the property was not an “open field” because it had a driveway

with a locked gate, it was his future homesite, and his tools, vehicles, a pole barn, a barn,

a fishing pond, and his construction materials were located on the property. However,

the facts here are very similar to those in Oliver, 466 U.S. at 173, 104 S. Ct. at 1738.

There, officers drove past the defendant’s house to a locked gate with a “no trespassing”

sign and a footpath to one side. They walked around the gate and along the road, passing

a barn and a parked camper. They found marijuana in a secluded field one mile from the

defendant’s house. The State argues, and we agree, that this case is indistinguishable

review. Waiver notwithstanding, we address the merits of Greene’s claims. Moreover, even if Greene’s

objection to the marijuana was sufficient, his arguments regarding the search fail.

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from Oliver. The officers’ warrantless observation of Greene’s property does not

implicate the Fourth Amendment.

2. Indiana Constitution

Next, Greene argues that the warrantless observations violated Article 1, Section

11 of the Indiana Constitution, which provides:

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable search or seizure,

shall not be violated; and no warrant shall issue, but upon

probable cause, supported by oath or affirmation, and

particularly describing the place to be searched, and the

person or thing to be seized.

“Although this language tracks the Fourth Amendment verbatim, we proceed somewhat

differently when analyzing the language under the Indiana Constitution than when

considering the same language under the Federal Constitution.” Trimble, 842 N.E.2d at

803. “Instead of focusing on the defendant’s reasonable expectation of privacy, we focus

on the actions of the police officer, concluding that the search is legitimate where it is

reasonable given the totality of the circumstances.” Id. “We will consider the following

factors in assessing reasonableness: ‘1) the degree of concern, suspicion, or knowledge

that a violation has occurred, 2) the degree of intrusion the method of the search or

seizure imposes on the citizen’s ordinary activities, and 3) the extent of law enforcement

needs.’” Id. (quoting Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005)).

Greene does not analyze the three factors identified in Litchfield. Rather, he

argues that “we Hoosiers do not approve of persons skulking or trespassing upon our

future homesites—particularly where there is valuable property such as vehicles, heavy

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equipment bulldozers and trenchers, tools, and building materials—when we have clearly

indicated by a gated driveway that we do not condone or invite entry onto our property.”

Appellant’s Br. p. 12.

Our analysis of the relevant factors reveals no violation of Article 1, Section 11 of

the Indiana Constitution. We begin by considering “the degree of concern, suspicion, or

knowledge that a violation has occurred.” Litchfield, 824 N.E.2d at 361. If a search is

based on a concerned citizen’s report of an alleged crime, the degree of concern,

suspicion, or knowledge that a violation has occurred is essentially the same as the

reasonable suspicion required for an investigatory stop. Trimble, 842 N.E.2d at 803.

“The reasonable suspicion standard is less demanding than probable cause and requires a

showing considerably less than a preponderance of the evidence, but it still requires at

least a minimal level of objective justification and more than an inchoate and

unparticularized suspicion or hunch of criminal activity.” Teague v. State, 891 N.E.2d

1121, 1128 (Ind. Ct. App. 2008).

Here, a confidential, but not anonymous, informant told Captain Lee that there

was a marijuana growing operation at Greene’s property. The informant had given

Captain Lee credible information in the past. That same day, Captain Lee and another

officer approached the property at issue from a neighboring property owner’s woods and

observed the marijuana operation. We conclude that Captain Lee’s degree of concern

that a violation was occurring was reasonable. See Trimble, 842 N.E.2d at 804 (holding

that an officer’s degree of concern that a violation had occurred was reasonable based on

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a citizen’s report of criminal activity, the officer’s corroboration of their descriptions, and

the fact that there was no indication the citizens were unreliable).

The degree of intrusion here was minimal. Captain Lee approached Greene’s land

from the adjacent property, and he observed the activities on Greene’s property through a

spotting scope. It is not even clear from the record whether the officers entered Greene’s

property at all. The marijuana activities were being performed in the open on Greene’s

property, without any attempt to conceal their activities. Further, “the degree of intrusion

is viewed from the point of view of the occupants or owners of the premises searched.”

Duran v. State, 930 N.E.2d 10, 19 (Ind. 2010). Greene testified that he routinely let other

people fish in the pond on his property. Viewing his property through a spotting scope is

a minimal degree of intrusion.

The final factor is the “extent of law enforcement needs.” Litchfield, 824 N.E.2d

at 361. “[T]he severity of the law enforcement need embraces proper concern for the

health and safety of others.” Trimble, 842 N.E.2d at 804. “Where a police officer has

received a timely tip concerning a possibly dangerous situation, the privacy interest is

diminished.” Id. The officer here received information regarding a marijuana growing

operation. The marijuana could be quickly removed from the property and distributed,

resulting in a need to investigate the complaint in a prompt manner. Although this was

not a particularly dangerous situation, we conclude there was a moderate law

enforcement need.

Given our review of the factors, we conclude that Captain Lee’s actions were

reasonable under the Indiana Constitution. As in Trimble, the information provided to

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Captain Lee “was sufficient to trigger an investigation that was done from essentially

public space, and this investigation justified further action.” Trimble, 842 N.E.2d at 804.

B. Validity of Search Warrant

Next, Greene argues that the marijuana was inadmissible because the search

warrant was not supported by probable cause. “In deciding whether to issue a search

warrant, ‘[t]he task of the issuing magistrate is simply to make a practical, common-sense

decision whether, given all the circumstances set forth in the affidavit . . . there is a fair

probability that contraband or evidence of a crime will be found in a particular place.’”

Jackson v. State, 908 N.E.2d 1140, 1142 (Ind. 2009) (quoting Illinois v. Gates, 462 U.S.

213, 238, 103 S. Ct. 2317, 2332 (1983)). “The duty of the reviewing court is to

determine whether the magistrate had a ‘substantial basis’ for concluding that probable

cause existed.” Id. (quoting Gates, 462 U.S. at 238, 103 S. Ct. at 2332). A substantial

basis requires the reviewing court, with significant deference to the magistrate’s

determination, to focus on whether reasonable inferences drawn from the totality of the

evidence support the determination of probable cause. Id. Although we review de novo

the trial court’s substantial basis determination, we nonetheless afford significant

deference to the magistrate’s determination as we focus on whether reasonable inferences

drawn from the totality of the evidence support that determination. Id. “Probable cause

to search premises is established when a sufficient basis of fact exists to permit a

reasonably prudent person to believe that a search of those premises will uncover

evidence of a crime.” Esquerdo v. State, 640 N.E.2d 1023, 1029 (Ind. 1994).

Captain Lee’s search warrant affidavit provided:

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I am a law enforcement officer with the Indiana Department

of Natural Resources.

Earlier today, I was contacted by an individual who wishes to

remain anonymous. I knew the individual, and that individual

has given me accurate information in the past. Further, that

person could potentially face false informing charges if he

gave me false information. That person told me that he saw

marijuana growing on property described as the first lane on

the south side of Gatesville Road west of the intersection of

Gatesville Rd. and Bear Wallow Rd., Brown County, Indiana.

There does not appear to be a permanent residence on the

property.

This afternoon, I entered onto an adjoining property and

approached the suspect property in the woods. From a

location in the woods, I could see the driveway described

above. The driveway is blocked by a gate about 150 yards

from Gatesville Rd. On the inside of the gate, there is a green

Dodge truck with a camper shell. Further up the drive, I saw

a dark Dodge truck and a pull-behind trailer. Inside the

trailer, I could see plant material hanging as if drying from

the roof of the trailer. I was downwind of the trailer and

could smell the strong odor of fresh marijuana. I observed

three people near the trailer. One would remove marijuana

from the back of the trailer, bring it to the table, where the

other two were cutting up the marijuana with scissors.

Based on the above, I have probable cause to believe that

evidence of the crimes of dealing marijuana and possession of

marijuana is located at the location. Specifically, I request

authorization to enter onto the above described property and

to search inside the trailer to search for and retrieve

marijuana, a schedule one controlled substance.

Appellant’s App. p. 97.

In arguing that the reliability of the informant was not established, Greene relies

upon Indiana Code Section 35-33-5-2(b), which provides:

When based on hearsay, the affidavit must either:

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(1) contain reliable information establishing the credibility

of the source and of each of the declarants of the

hearsay and establishing that there is a factual basis for

the information furnished; or

(2) contain information that establishes that the totality of

the circumstances corroborates the hearsay.

Greene argues that probable cause did not exist because the credibility of the confidential

informant was not established and because Captain Lee’s training and experience to

recognize the smell of marijuana was not established.

Even if we were to assume that probable cause did not exist to support issuing a

warrant to search Greene’s property, we nonetheless conclude the trial court correctly

admitted the evidence obtained during the search. “The lack of probable cause does not

automatically require the suppression of evidence obtained during a search conducted

pursuant to a warrant.” Jackson, 908 N.E.2d at 1143. In United States v. Leon, 468 U.S.

897, 104 S. Ct. 3405 (1984), the United States Supreme Court held that the exclusionary

rule does not require the suppression of evidence obtained in reliance on a defective

search warrant if the police relied on the warrant in objective good faith. Id. Leon

cautioned that the good faith exception is not available in some situations, including

where “(1) the magistrate is ‘misled by information in an affidavit that the affiant knew

was false or would have known was false except for his reckless disregard of the truth,’

or (2) the warrant was based on an affidavit ‘so lacking in indicia of probable cause as to

render official belief in its existence entirely unreasonable.’” Id. (quoting Leon, 468 U.S.

at 923, 104 S. Ct. at 3421). The good faith exception to the warrant requirement has been

codified by Indiana Code Section 35-37-4-5. Id.

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There is no allegation that Captain Lee misled the magistrate here. Further, we

cannot say that the affidavit was “so lacking in indicia of probable cause as to render

official belief in its existence entirely unreasonable.” Id. Captain Lee obtained

information from a confidential informant who had previously given the officer accurate

information. Captain Lee confirmed the information by observing marijuana being

processed on the property at issue. Although additional information in the search warrant

affidavit regarding the confidential informant’s credibility and Captain Lee’s training

might have been helpful, we conclude that the officers relied on the search warrant in

objective good faith, and the trial court did not abuse its discretion by admitting the

evidence found pursuant to the search warrant. See Jackson, 908 N.E.2d at 1144-45

(holding that the good faith exception applied where the officer’s testimony, while

abbreviated, demonstrated the nature of his relationship with the informant and the

officer “bolstered the informant’s tip by testifying to complaints from the public about

traffic consistent with drug dealing”).

II. Jury Instructions

Next, Greene argues that the trial court erred when it instructed the jury regarding

the definition of marijuana. According to Greene, the trial court erred by rejecting his

proposed instructions regarding the definition of a “mature stalk” or “stem” of marijuana.

When a party has challenged a trial court’s refusal of a tendered jury instruction, the court

on appeal performs a three-part evaluation. Walden v. State, 895 N.E.2d 1182, 1186

(Ind. 2008). First, we ask whether the tendered instruction is a correct statement of the

law. Id. Second, we examine the record to determine whether there was evidence

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present to support the tendered instruction. Id. Third, we determine whether the

substance of the tendered instruction was covered by another instruction or instructions.

Id. This evaluation is performed in the context of determining whether the trial court

abused its discretion when it rejected the instruction. Id.

Greene tendered three instructions regarding the definition of marijuana, mature

stalks, and stems. The proposed instructions provided:

In the context of our criminal law, I.C. 35-48-1-19

defines marijuana as “any part of the plant . . .[but] does not

include the mature stalks of the plant.”

The word “stem” is most commonly defined as “the

main central part (usually above the ground) of a tree or shrub

or plant.” The word “stalk” is defined almost identically as

“the main stem of a plant.” Webster’s International

Dictionary . . . defines “stem” as “the main axis, trunk, or

body of a tree or other plant” and “stalk” as “the stem or main

axis of a plant.”

*****

“Stalk” is defined as any stem or stemlike party, as a slender

rod, shaft, or support.

*****

“Stem” is defined as the main upward growing axis of a plant,

having nodes and bearing leaves. It is also defined as any

stalk or part supporting leaves, flowers, or fruits.

Appellant’s App. pp. 43-45 (internal citations omitted). Greene was attempting to argue

that the weight of the marijuana would have been less than ten pounds if all of the stalks

and stems were removed. The trial court rejected those instructions.

The trial court instructed the jury with the statutory definition of marijuana as

follows:

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The term “marijuana” means 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. It does

not include the mature stalks of the plant; fiber produced from

the stalks; oil or cake made from the seeds of the plant; any

other compound, manufacture, salt, derivative, mixture, or

preparation of the mature stalks (except the resin extracted

therefrom); or the sterilized seed of the plant which is

incapable of germination.

Id. at 66; see Ind. Code § 35-48-1-19. The trial court also instructed the jury that, to

convict Greene, the State must have proved that Greene knowingly or intentionally

manufactured “pure or adulterated marijuana” and the amount involved was ten pounds

or more of marijuana.2 Appellant’s App. p. 63. Finally, the trial court also instructed the

jury that:

The aggregate weight of marijuana includes both pure and

adulterated marijuana. Therefore, the aggregate weight may

include not only “pure” marijuana, but also “other vegetable

material” not fitting within the definition of marijuana. The

fact that marijuana recovered contained portions of the

marijuana plant not included within the statutory definition of

marijuana does not prevent the entire amount recovered from

2

Greene argues that the “pure or adulterated” language was not included in his charging information. See

Appellant’s App. p. 86. It is not clear that Greene raised this issue to the trial court. Moreover, “[a]

charging information must allege the elements of the crime such that the accused is sufficiently apprised

of the nature of the charges against him so that he may anticipate the proof and prepare a defense in

advance of trial.” Winn v. State, 748 N.E.2d 352, 356 (Ind. 2001); I.C. § 35-34-1-2. “Absence of detail in

an information is fatal only if the phraseology misleads the defendant or fails to give him notice of the

charges against him.” McGee v. State, 495 N.E.2d 537, 538 (Ind. 1986). Greene does not argue that he

was misled by the information or that it failed to give him notice of the charges against him. See Smith v.

State, 445 N.E.2d 998, 999 (Ind. 1983) (“Though it is undoubtedly preferable for an information for

Attempted Robbery, class B felony, to contain the phrase “while armed with a deadly weapon”, . . . absent

proof that the accused was mislead by the phraseology employed, we do not think that such a phrase is

imperative to satisfy the due process requirement of notice.”).

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being considered in the amount of marijuana manufactured or

processed.

Id. at 67.

In Lycan v. State, 671 N.E.2d 447, 457 (Ind. Ct. App. 1996), the defendant also

argued that “the aggregate weight of the marijuana recovered must exclude any material

not contained within the statutory definition of marijuana.” We held “the law of this state

is clear that the aggregate weight of marijuana necessary to sustain an offense

enhancement includes not only ‘pure’ marijuana, but also ‘other vegetable material’ not

fitting within the definition of marijuana.” Lycan, 671 N.E.2d at 457 (quoting Allison v.

State, 527 N.E.2d 234, 238 (Ind. Ct. App. 1988), trans. denied). “Thus, the fact that the

marijuana recovered contained portions of the marijuana plant not included within the

statutory definition of marijuana [did] not prevent the entire amount recovered from

being considered with respect to [the defendant’s] offense enhancement.” Id.

We conclude that the trial court did not abuse its discretion by rejecting Greene’s

proposed instructions because the substance of the tendered instructions was covered by

other instructions and because the evidence did not support the tendered instructions.

The instructions given by the trial court adequately instructed the jury regarding the

definition of marijuana. Moreover, whether the forensic scientist removed all of the

stems before weighing the marijuana was irrelevant given our holding in Lycan. See also

Adams v. State, No. 49A05-1107-CR-372, slip op. at 9 (Ind. Ct. App. May 24, 2012)

(holding that “the issue of identifying mature stalks is irrelevant for determining whether

Adams dealt at least 30 grams of marijuana because it is clear that a sentence

16

enhancement for dealing in marijuana may be supported by an adulterated form of

marijuana, which includes ‘other vegetable material’ not included within the definition of

marijuana”). The trial court did not abuse its discretion by rejecting Greene’s proposed

instructions.

III. Sufficiency of the Evidence

Greene argues that the evidence is insufficient to sustain his Class C felony

dealing in marijuana conviction. When reviewing the sufficiency of the evidence needed

to support a criminal conviction, we neither reweigh evidence nor judge witness

credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the

evidence supporting the judgment and any reasonable inferences that can be drawn from

such evidence.” Id. We will affirm if there is substantial evidence of probative value

such that a reasonable trier of fact could have concluded the defendant was guilty beyond

a reasonable doubt. Id.

The offense of dealing in marijuana is governed by Indiana Code Section 35-48-4-

10, which provides that a person who knowingly or intentionally manufactures

marijuana, “pure or adulterated,” commits dealing in marijuana. The offense is a Class C

felony if the amount involved is ten pounds or more of marijuana. I.C. § 35-48-4-

10(b)(2)(A).

Greene argues that the evidence is insufficient to show that he manufactured ten

pounds or more of marijuana. Specifically, Greene challenges the weight determination

of Newton, a forensic scientist with the Indiana State Police laboratory, as compared to

the weight determination of his expert witness, Schwilke, a forensic toxicologist with

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AIT Laboratories. Newton testified that she received several paper bags filled with

marijuana, emptied the bags of marijuana onto a table, and removed “mature stalks” and

stems larger than a pencil. Tr. p. 216. She then weighed the remaining marijuana.

According to Newton, the marijuana in Exhibit 43 weighed 6.20 pounds, and the

marijuana in Exhibit 44 weighed 4.52 pounds, for a total of 10.72 pounds. She then took

a sample of the marijuana for testing and placed the stalks and stems back into the bags.

Schwilke testified that he removed what he considered to be stalks and stems and

weighed the marijuana in Exhibit 43 and 44 and that the marijuana weighed 9.645

pounds. On cross examination, Schwilke admitted that this was the first time he had

weighed marijuana. He testified that he was unaware Newton had removed part of the

marijuana from the exhibits for testing. He also weighed only one of the paper bags that

contained the marijuana and then estimated the weight of the remaining paper bags. He

did not take into account varying weights of the tape and staples on the paper bags.

Greene’s argument is merely a request that we reweigh the evidence and judge the

credibility of the witnesses, which we cannot do. Moreover, as in Lycan, even if the

marijuana that was weighed contained portions of the marijuana plant not included within

the statutory definition of marijuana, Newton was not prevented from considering the

stems smaller than a pencil in determining the weight. The State presented evidence that

the weight of the marijuana was greater than ten pounds, and the evidence is sufficient to

sustain Greene’s conviction for Class C felony dealing in marijuana.

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IV. Constitutional Claims

Greene also argues that his constitutional due process rights were violated.

Greene contends that he was denied due process under the federal and Indiana

constitutions because of the “lack of definition, lack of notice, and lack of objective

ascertainable uniform standards to weigh the marijuana.” Appellant’s Br. p. 23. Greene

did not raise the argument to the trial court and raises the argument for the first time on

appeal.3 We do not address constitutional arguments that are raised for the first time on

appeal. Zagorac v. State, 943 N.E.2d 384, 394 (Ind. Ct. App. 2011).

Waiver notwithstanding, we recently rejected the same due process argument in

Adams v. State, No. 49A05-1107-CR-372, slip op. at 9 (Ind. Ct. App. May 24, 2012)

(holding that the defendant was not denied due process because “identifying mature

stalks is irrelevant for determining whether Adams dealt at least 30 grams of marijuana

because it is clear that a sentence enhancement for dealing in marijuana may be supported

by an adulterated form of marijuana, which includes ‘other vegetable material’ not

included within the definition of marijuana”). We conclude that Greene’s constitutional

claim fails.

3

Greene also appears to argue that his equal protection rights under the United States Constitution and the

privileges and immunities clause in the Indiana Constitution were violated. Greene argues that he was

subject to disparate treatment due to different standards used to assess the weight of the marijuana.

Greene again raises this issue for the first time on appeal. Further, Greene cites little authority for his

argument and fails to provide adequate analysis of these complex issues. Greene has waived this issue.

See Ind. Appellate Rule 46 (requiring cogent argument and citation to authority); Lyles v. State, 834

N.E.2d 1035, 1050 (Ind. Ct. App. 2005) (“A party waives an issue where the party fails to develop a

cogent argument or provide adequate citation to authority and portions of the record.”), trans. denied.

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Conclusion

The trial court did not abuse its discretion by admitting the marijuana into

evidence or by rejecting Greene’s proposed jury instructions. Further, the evidence is

sufficient to sustain his conviction for Class C felony dealing in marijuana, and his

constitutional claim fails. We affirm.

Affirmed.

FRIEDLANDER, J., and MAY, J., concur.

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