Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any May 07 2014, 9:30 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JEREMY K. NIX GREGORY F. ZOELLER
CASEY C. MORGAN Attorney General of Indiana
Matheny Hahn Denman & Nix, LLP
Huntington, Indiana ERIC P. BABBS
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOHNATHON R. ASLINGER, )
)
Appellant-Defendant, )
)
vs. ) No. 35A02-1303-CR-296
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HUNTINGTON SUPERIOR COURT
The Honorable Jeffrey R. Heffelfinger, Judge
Cause No. 35D01-1206-FD-127 & 35D01-1207-FA-152
May 7, 2014
OPINION ON REHEARING
RILEY, Judge
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
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conviction. Therefore, we clarify our opinion by remanding Aslinger’s conviction for
possession of paraphernalia for a retrial.
CONCLUSION
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
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