Opinion
24A-CR-349
07-08-2024
Caisean Dennis Lutrel Mahone, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Zachary J. Stock Zachary J. Stock, Attorney at Law, P.C. Carmel, Indiana ATTORNEY FOR APPELLEE Theodore E. Rokita Indiana Attorney General Michelle Hawk Kazmierczak Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Hendricks Superior Court The Honorable Mark A. Smith, Judge Trial Court Cause No. 32D04-2301-F4-6
ATTORNEY FOR APPELLANT
Zachary J. Stock
Zachary J. Stock, Attorney at Law, P.C.
Carmel, Indiana
ATTORNEY FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
Michelle Hawk Kazmierczak
Deputy Attorney General
Indianapolis, Indiana
Altice Chief Judge and Mathias Judge concur.
MEMORANDUM DECISION
Bailey, Judge.
Case Summary
[¶1] Caisean Mahone appeals his conviction for Possession of Marijuana, as a Class B misdemeanor. Mahone presents the issue of whether the evidence is insufficient to support his conviction, absent laboratory testing confirming that the confiscated cannabis contained sufficient THC to constitute marijuana as opposed to hemp. The State responds that Mahone, who admitted in his opening statement, direct testimony, cross-examination, and closing argument that he possessed marijuana, is estopped from challenging his conviction. We affirm.
Facts and Procedural History
[¶2] On January 22, 2023, Mahone and his brother, Celijah Larue, engaged in a physical altercation at the residence of their mother. Larue pointed a gun at Mahone, who then disarmed Larue. Larue called 9-1-1 and Mahone left the residence with the gun, which he subsequently threw into a bush.
[¶3] Police officers dispatched in response to the 9-1-1 call located Mahone a few streets away and arrested him. At the Hendricks County Jail, Mahone was searched and found to be in possession of packages of pills and packages labeled as "Premier Cannabis" having a net weight of 3.5 grams. (Tr. Vol. II, pg. 204.)
[¶4] On January 23, the State charged Mahone with Unlawful Possession of a
Firearm by a Serious Violent Felon, a Level 4 felony; Theft, as a Level 5 felony; Battery, as a Class A misdemeanor; Possession of a Controlled Substance, as a Class A misdemeanor; and Possession of Marijuana. On January 9, 2024, Mahone was brought to trial before a jury. At the conclusion of the trial, a jury found Mahone not guilty of Theft and Battery and guilty of the drug possession charges. The jury did not reach a verdict upon the firearm possession charge. Mahone was sentenced to 180 days imprisonment for possession of marijuana, concurrent to a sentence of 364 days for possession of a controlled substance. He now appeals.
I.C. § 35-47-4-5(c).
I.C. § 35-43-4-2(a)(1).
I.C. § 35-42-2-1(d)(1).
I.C. § 35-48-4-7(a).
Discussion and Decision
[¶5] Pursuant to Indiana Code Section 35-48-4-11(a), a person who knowingly or intentionally possesses pure or adulterated marijuana commits possession of marijuana, as a Class B misdemeanor. Mahone contends that the State did not meet its burden of showing that he possessed marijuana because no laboratory test result disclosed that the cannabis had a concentration of at least 0.3% THC on a dry weight basis, differentiating it from hemp. The State responds that Mahone is estopped from asserting this challenge, under the doctrine of invited error.
[¶6] The State directs our attention to Gary v. State, 124 N.E.3d 90 (Ind.Ct.App. 2019). There, the appellant challenged the sufficiency of the evidence to support his conviction for Intimidation. He conceded that he had threatened his nephew but argued that the State did not present sufficient evidence that he did so with "intent to place [the victim] in fear of retaliation for a prior lawful act or (2) to get [him] to engage in conduct against his will." Id. at 94. The State pointed to Gary's admission in closing argument:
[Defense]: Did he communicate a threat to his nephew? Yes, he did. Did he place him in fear? He did. Was [it] a threat to commit a forcible felony? Yeah, I'm going to shoot you in the shoulder. Okay. The state's proved that, no defense, no dispute.... I believe that intimidation on Count 6 on Mr. Deboise has been proven.... We ask that you return a not guilty verdict on all counts but ... the intimidation of Jeramy Debois [sic][.](Id. at 95.) (Transcript citation omitted.)
[¶7] The Court concluded that, under the invited error doctrine, appellant Gary could not argue that the State's evidence was insufficient:
"Under the invited error doctrine, a party may not take advantage of an error that he commits, invites, or which is the natural consequence of his own neglect or misconduct." Stewart v. State, 945 N.E.2d 1277, 1285 (Ind.Ct.App. 2011), trans. denied.
Here, Gary asked the jury to return a guilty verdict on the Level 6 felony intimidation charge and conceded that the State had carried its burden to present evidence to prove he committed the crime. Under the invited error doctrine, he cannot now argue the State's evidence was insufficient. See Brewington v. State, 7 N.E.3d 946, 975 (Ind. 2014) ("invited error precludes relief from counsel's strategic decisions gone awry"), reh'g denied, cert denied __ U.S. __, 135 S.Ct. 970, 190 L.Ed.2d 834 (2015), reh'g denied __ U.S. __, 135 S.Ct. 1524, 191 L.Ed.2d 454 (2015).(Id.)
[¶8] Here, Mahone's counsel made the following representation during the opening statement:
I'm also going to tell you that my client is going to take responsibility for the mistakes that he made that night. He's going to take full responsibility for the pills and for the marijuana found on his person that night by the officer who he was engaged with because my client never once in his life has had any issue taking responsibility for that which he is guilty of.(Tr. Vol. II, pg. 123.) Mahone testified in his own defense and the following exchange took place during Mahone's direct examination:
Defense Counsel: Let's get a couple [of] questions out of the way real quick. Regarding your drug charges, specifically the marijuana and the MDMA, did you possess those on that night?
Mahone: Those were mine.(Id. at 226.) During cross-examination, the State asked Mahone whether he had marijuana on his person and Mahone responded affirmatively. Finally, in closing, defense counsel made the following admission and plea to the jury:
The marijuana and the MDMA on his person he's freely admitted to it because he's guilty of it. And he hasn't wasted one minute of the court's time or your time contesting what is so obviously, what he's so obviously guilty of. … So now I ask each of you to take all the evidence that you've seen today and find my client not guilty on the charge of unlawful possession of a firearm, theft of a firearm, and battery.(Tr. Vol. III, pgs. 54-55.) Based upon this record, we agree with the State that Mahone conceded his guilt to the charge of possession of marijuana.
Conclusion
[¶9] Under the doctrine of invited error, Mahone is estopped from contesting the absence of laboratory test results to establish that he possessed marijuana.
[¶10] Affirmed.
Altice, C.J., and Mathias, J., concur.