Rojo v. State

202 N.E.3d 1085

Christian TOLEDO ROJO, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Cause No. 22A-CR-652

Court of Appeals of Indiana.

Filed August 22, 2022

Publication Ordered September 2, 2022

Attorneys for Appellant: Marc Lopez, Matthew Kroes, The Marc Lopez Law Firm, Indianapolis, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General, Robert M. Yoke, Deputy Attorney General, Indianapolis, Indiana

Crone, Judge.

Case Summary

[1] Christian Toledo Rojo appeals his convictions, following a bench trial, for class A misdemeanor operating a vehicle while intoxicated and class B misdemeanor possession of marijuana. He argues that the trial court abused its discretion in admitting certain evidence. He further challenges the sufficiency of the evidence to support his conviction for possession of marijuana. Finding no abuse of discretion but finding insufficient evidence to support the possession conviction, we affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History

[2] In the early morning hours on August 15, 2020, Plainfield Police Department Officers Joshua Koch and Jacob Clark were dispatched to the intersection of Ronald Reagan Parkway and Stout Heritage Parkway in Hendricks County. When they arrived, they observed that a single vehicle had apparently slid off the road into the grassy median. The car had three flat tires, and Toledo Rojo was sitting outside the vehicle looking "disoriented." Tr. Vol. 2 at 15. Toledo Rojo had "glossy eyes," "poor balance," and "slurred speech." Id. at 20. He told the officers that he "had a couple drinks and smoked marijuana" a "couple hours" before driving. Id. at 15-16. The officers observed something bulging out of a "sock" in Toledo Rojo's pocket. Id. at 11. He told them that it was just some lighters. The officers recovered a "little bag" from the sock that contained a substance they believed to be marijuana due to "smell and sight." Id. at 21. The substance was never tested.

[3] The officers did not perform any field sobriety tests on Toledo Rojo and instead transported him for a blood draw at Hendricks Regional Health. Phlebotomist Mae Long performed the blood draw. The blood draw revealed that Toledo Rojo's blood contained THC and had an alcohol concentration equivalent of 0.132 gram per 100 milliliters of blood.

[4] The State charged Toledo Rojo with class A misdemeanor operating a vehicle while intoxicated and class B misdemeanor possession of marijuana. A bench trial was held on February 24, 2022. The trial court found Toledo Rojo guilty as charged and sentenced him to a two-day executed sentence in the Hendricks County Jail.¹ This appeal ensued.

Discussion and Decision

Section 1 – The trial court did not abuse its discretion in admitting certain evidence.

[5] Toledo Rojo first challenges the trial court's admission of the lab results from his blood draw. The appellate standard of review for the admissibility of evidence is well established. Housand v. State , 162 N.E.3d 508, 513 (Ind. Ct. App. 2020), trans. denied 167 N.E.3d 1158 (Ind. 2021). "The admission or exclusion of evidence lies within the sound discretion of the trial court and is afforded great deference on appeal." Id. "We will reverse the trial court's ruling on the admissibility of evidence only for an abuse of discretion." Id. "An abuse of discretion occurs where the trial court's decision is clearly against the logic and effect of the facts and circumstances before it." Id.

[6] Toledo Rojo argues that the trial court abused its discretion in admitting the blood draw results because the evidence lacked a proper foundation for admission. Indiana Code Section 9-30-6-6(a) requires that blood samples be collected by:

A physician, a person trained in retrieving contraband or obtaining bodily substance samples and acting under the direction of or under a protocol prepared by a physician, or a licensed health care professional acting within the professional's scope of practice and under the direction of or under a protocol prepared by a physician[.]

Our supreme court has stated that "[t]he foundation for admission of laboratory blood drawing and testing results, by statute, involves technical adherence to a physician's directions or to a protocol prepared by a physician." Hopkins v. State , 579 N.E.2d 1297, 1303 (Ind. 1991). "This is not a requirement that may be ignored." Combs v. State , 895 N.E.2d 1252, 1256 (Ind. Ct. App. 2008), trans. denied 915 N.E.2d 978 (Ind. 2009).

[7] Here, to lay the foundation for the admission of Toledo Rojo's blood draw results, the State presented the testimony of the phlebotomist who performed the blood draw. Phlebotomist Long testified that she had been a phlebotomist for thirty years and had worked at Hendricks Regional Health for twenty years. She explained that Hendricks Regional Health has a protocol for conducting blood draws and that she was trained in that protocol. She explained the specifics of the protocol and how she followed it. She further agreed that the protocol she followed was "developed" and "approved" by a physician who was "head of the lab" at the hospital. Tr. Vol. 2 at 27, 29.

[8] Toledo Rojo asserts that the State's reliance on this testimony to establish "technical adherence" to "a protocol prepared by a physician" was insufficient, and that the State was instead required to introduce "a copy of the relevant blood draw protocol as an exhibit at trial" to establish the necessary foundation for admissibility. Appellant's Br. at 7. However, this Court has held the opposite. Indeed, in Martin v. State , 154 N.E.3d 850, 853 (Ind. Ct. App. 2020), trans. denied , we concluded that the trial court did not abuse its discretion in determining that the State laid a sufficient foundation for blood draw evidence relying solely on the testimony of the nurse who conducted the blood draw. The nurse testified that she was trained in legal blood draws, that her hospital had a protocol for legal blood draws, that a physician approved that protocol, and that she followed that protocol. Id.

[9] As in Martin , we agree with the trial court here that Long's testimony was sufficient to provide the proper foundation for admission of the blood draw results. Toledo Rojo has not shown that the trial court abused its discretion in admitting the evidence and we affirm the operating while intoxicated conviction.²

Section 2 – The State presented insufficient evidence to support the possession of marijuana conviction.

[10] Toledo Rojo next claims that the State presented insufficient evidence to support his possession of marijuana conviction. To convict Toledo Rojo of class B misdemeanor possession of marijuana as charged, the State was required to prove beyond a reasonable doubt that he knowingly or intentionally possessed "(pure or adulterated) marijuana[.]" Ind. Code § 35-48-4-11(a)(1). Toledo Rojo challenges whether the State's evidence was sufficient to demonstrate beyond a reasonable doubt that the substance he possessed was "marijuana" as defined by statute.

[11] "Marijuana" is defined under Indiana law as follows:

(a) "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.

(b) The term does not include :

(1) the mature stalks of the plant;

(2) fiber produced from the stalks;

(3) oil or cake made from the seeds of the plant;

(4) any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom);

(5) the sterilized seed of the plant which is incapable of germination;

(6) hemp (as defined by IC 15-15-13-6 ) ;

(7) low THC hemp extract; or

(8) smokable hemp.

Ind. Code § 35-48-1-19 (emphases added).

[12] And "hemp" is defined under Indiana law as follows:

As used in this chapter, "hemp" means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9-tetrahydrocannabinol [THC] concentration of not more than three-tenths of one percent (0.3%) on a dry weight basis , for any part of the Cannabis sativa L. plant.

Ind. Code § 15-15-13-6 (emphases added). Accordingly, in Indiana, the difference between a legal substance, such as hemp, and illegal marijuana is determined by the concentration of delta-9-THC in a particular substance: to be illegal, the concentration of delta-9-THC must be more than 0.3%.

[13] Toledo Rojo correctly asserts that the State presented no chemical analysis evidence that the substance seized from his sock was actually marijuana, i.e., that it had a concentration of delta-9-THC that was more than 0.3%. Rather, the only evidence presented regarding the identity of the substance was the extremely limited testimony of one of the police officers simply indicating that he "knew" the substance was marijuana "through [his] training experience" due to "markers regarding sight and smell." Tr. Vol. 2 at 21. The State asserts that this opinion testimony was sufficient to prove beyond a reasonable doubt that the substance Toledo Rojo possessed was marijuana. See Appellee's Br. at 12 (citing Clark v. State , 6 N.E.3d 992, 999 (Ind. Ct. App. 2014) (acknowledging supreme court precedent holding generally that opinion of someone sufficiently experienced with drug may be sufficient to establish identity, but expressing concern regarding State's practice of not performing chemical analysis on substances simply due to police department policy on chemical analysis quantities)).

[14] In considering this same issue, another panel of this Court recently held that such opinion evidence, without more, was insufficient to sustain a conviction for possession of marijuana. Fedij v. State , 186...