May 7, 2014
JOHNATHON R. ASLINGER, Appellant-Defendant,
STATE OF INDIANA, Appellee-Plaintiff
These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).
APPEAL FROM THE HUNTINGTON SUPERIOR COURT. The Honorable Jeffrey R. Heffelfinger, Judge. Cause No. 35D01-1206-FD-127 & 35D01-1207-FA-152.
ATTORNEYS FOR APPELLANT: JEREMY K. NIX, CASEY C. MORGAN, Matheny Hahn Denman & Nix, LLP, Huntington, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; ERIC P. BABBS, Deputy Attorney General, Indianapolis, Indiana.
RILEY, Judge. KIRSCH, J. and ROBB, J. concur.
OPINION ON REHEARING
Appellant-Defendant, Johnathon R. Aslinger (Aslinger), appealed his conviction of possession of methamphetamine, possession of paraphernalia, and dealing in methamphetamine. In Aslinger v. State, 2 N.E.3d 84 (Ind.Ct.App. 2014), we reversed his conviction for possession of methamphetamine, affirmed his conviction of dealing in methamphetamine, and remanded the case to the trial court for further proceedings. The State has petitioned for rehearing, to which Aslinger did not file a response. We grant the State's petition for rehearing for the limited purpose of clarifying the disposition of Aslinger's conviction for possession of paraphernalia.
In its petition for rehearing, the State requests that we either clarify that Aslinger is entitled to a retrial on his conviction of possession of paraphernalia or that, as the State would prefer, we specify our decision to affirm Aslinger's conviction and remand for resentencing in accordance with the opinion. See Ind. Appellate Rule 66(C)-(D). In our opinion, we found that certain evidence was inadmissible as the product of an invalid seizure pursuant to the Fourth Amendment--specifically a marijuana joint, methamphetamine, and several items of paraphernalia. However, we did determine that a single pipe was permissibly seized in the course of a Terry stop. As a result, we noted in the fourth footnote that " Aslinger's conviction for possession of paraphernalia may be upheld on remand."
To sustain Aslinger's conviction, Indiana Code section 35-48-4-8.3(a)(1) requires that he possessed that pipe with the intent to use it for " introducing into [his] body a controlled substance." Based on the evidence before us, we find that Aslinger's intended use for the pipe is unclear and we decline to direct the entry of a final judgment of conviction. Therefore, we clarify our opinion by remanding Aslinger's conviction for possession of paraphernalia for a retrial.
We grant the State's petition for rehearing for the limited purpose of ordering a retrial on Aslinger's conviction for possession of paraphernalia. We affirm our opinion in all other respects.
KIRSCH, J. and ROBB, J. concur