Background
A Mooresville police sergeant was driving behind Anthony Durham’s Ford Fiesta in Morgan County when the sergeant smelled burnt marijuana for a prolonged period. After seeing the Fiesta cross to the left of a lane marker, the sergeant initiated a traffic stop. The odor remained strong at the driver’s window. Durham acknowledged that a can in the car contained a small amount of marijuana and also disclosed THC vape pens and gummies. A search located green vegetation, thirteen vape pens, several gummies, a partially smoked marijuana cigarette, and rolling papers. A field test returned a presumptive positive result for THC.
The sergeant photographed and weighed the green vegetation, sealed it in evidence packaging, and placed it in the police department’s secured evidence room. The department’s evidence technician later transported the sealed material to the Indiana State Police laboratory. A forensic scientist tested it and identified it as marijuana containing more than 1% delta-9 tetrahydrocannabinol, or THC. The material was then returned to police storage pending trial.
The State charged Durham with Class B misdemeanor possession of marijuana, Class C misdemeanor possession of paraphernalia, and unsafe lane movement. Durham eventually represented himself at a bench trial. Although he had raised chain-of-custody concerns in a motion in limine and asked an evidence technician about custody documentation, he expressly said he had no objection when the State offered the seized items. The trial court found him guilty on all counts and imposed an aggregate twelve-day sentence with credit for time served. On appeal, Durham challenged only the marijuana conviction, arguing both fundamental evidentiary error and insufficient evidence.
The Court’s Holding
The Indiana Court of Appeals affirmed. Judge Pyle explained that Durham waived an ordinary admissibility challenge by failing to object when the exhibits were offered. That left only fundamental-error review, an exceptionally narrow doctrine reserved for blatant errors that make a fair trial impossible or create an undeniable and substantial potential for harm. The doctrine does not give a litigant another opportunity to raise an evidentiary objection that was not preserved at trial.
No error occurred in any event. Because marijuana is fungible evidence, the State had to provide reasonable assurances that it remained undisturbed from police acquisition through testing and trial. A perfect chain is unnecessary, officers receive a presumption of regularity in handling evidence, and possible gaps generally affect weight rather than admissibility once the State strongly suggests the item’s whereabouts. Testimony from the arresting sergeant, evidence technician, and forensic scientist traced the material from the car to secure police storage, then to the state laboratory, and back to police. That testimony supplied the required foundation without admission of separate chain-of-custody documents. Durham also remained free to cross-examine the technician; the trial court did not improperly restrict him by explaining that trial was the time to question the witness, not request documents that had not been subpoenaed.
The evidence was also sufficient. Indiana Code section 35-48-4-11 required proof that Durham knowingly or intentionally possessed marijuana. Because legal hemp and marijuana are distinguished by delta-9 THC concentration, the State also had to show that the substance exceeded 0.3% delta-9 THC on a dry-weight basis. The forensic scientist identified the vegetation as marijuana and testified that it contained more than 1% delta-9 THC. The State did not have to establish a more exact percentage. Durham’s renewed attack on the chain of custody asked the appellate court to reweigh evidence and witness credibility, which sufficiency review does not permit.
Key Takeaways
- A motion in limine does not preserve an Indiana evidentiary issue by itself; counsel must make a timely trial objection when the evidence is offered.
- For fungible evidence, coordinated witness testimony can establish reasonable assurances of an undisturbed chain of custody without accompanying custody paperwork.
- Once the State strongly accounts for an exhibit’s whereabouts, minor custody gaps ordinarily go to evidentiary weight, while a challenger must show more than a possibility of tampering.
- Marijuana identification requires proof that delta-9 THC concentration exceeds 0.3% on a dry-weight basis, but the State need not prove the precise percentage when testimony establishes a concentration above that threshold.
Why It Matters
Durham is a practical preservation reminder for Indiana criminal lawyers. A pretrial motion can alert the court to a chain-of-custody dispute, but it does not replace an objection at admission. When the defendant affirmatively states that there is no objection, appellate review narrows to fundamental error, a standard rarely satisfied in routine evidentiary disputes. Lawyers seeking custody records should also use discovery and subpoenas before trial rather than expect a witness to produce documents during cross-examination.
For prosecutors, the decision identifies a workable foundation for drug exhibits: testimony should account for collection, packaging, secure storage, laboratory transfer, testing, return, and the exhibit’s substantially similar condition. It also underscores the importance of quantitative THC evidence after Indiana’s hemp-related decisions. A scientist’s testimony that the concentration exceeded the statutory dividing line was enough here, even without proof of the exact percentage.