Johnathon R. Aslinger v. State of Indiana
2014 Ind. App. LEXIS 14
| Ind. Ct. App. | 2014Background
- June 19, 2012: Huntington police stopped Johnathon R. Aslinger and another male after a dispatch about juveniles breaking into cars; officer saw a hand-rolled cigarette behind Aslinger’s ear.
- Officer Foster seized the cigarette, smelled and field-tested it, found a knife, then removed multiple items from Aslinger’s pockets (pipes, pen barrel, scale, two plastic bags with white powder); field test showed methamphetamine.
- Charges in Case #127: possession of methamphetamine (Class D) and paraphernalia (Class A), plus HSO allegation based on two prior 2010 substance convictions.
- July 2012: separate incident led to charge in Case #152 for dealing/manufacturing methamphetamine within 1,000 feet of a public park; Aslinger convicted by jury and later adjudicated HSO.
- Sentencing: trial court imposed a 32-year term for dealing (plus 5‑year HSO enhancement) and concurrent terms for Case #127, then ordered the HSO enhancements to run consecutively, producing a 44‑year aggregate.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Aslinger) | Held |
|---|---|---|---|
| Fourth Amendment—admission of items seized at the Terry stop | Seizure was lawful: officer had reasonable suspicion, smelled and localized marijuana to the cigarette, and arrest/search incident to arrest justified seizure | Officer argues the seizure/examination exceeded Terry scope; cigarette not plainly incriminating and subsequent pocket search lacked warrant or exception | Court: Majority reverses—officer exceeded scope; cigarette/meth/paraphernalia (except the second pipe removed as a possible weapon) inadmissible because no warrant or valid exception |
| Denial of opportunity to make offer of proof during HSO phase | No prejudice: Aslinger was allowed to place facts on the record for appeal | Trial judge refused to pause jury deliberations to hear a belated offer of proof about prior convictions | Court: No abuse—offer of proof was untimely; record preserved sufficiently for appeal |
| Legality of consecutive HSO enhancements | State: HSO enhancements should be allowed to run consecutively; HSO is different from general habitual offender | Aslinger: Consecutive HSO enhancements exceed court’s statutory authority (HSO silent on consecutive running) | Court: Abuse of discretion—HSO enhancements must run concurrently; consecutive enhancements not authorized |
| Excluded jury instruction re: proximity defense to park enhancement | State: Statutory defense in I.C. § 35-48-4-16 does not apply to manufacturing; instruction incorrectly states law | Aslinger: Instruction tracks statute and should permit reduction of enhancement when presence near park was brief | Court: No error in exclusion—the tendered instruction misstated law because the statutory defense applies to possession/delivery/financing, not manufacturing |
Key Cases Cited
- Moore v. State, 827 N.E.2d 631 (Ind. Ct. App.) (warrantless-search exception burden)
- Francis v. State, 764 N.E.2d 641 (Ind. Ct. App.) (trial court discretion on admissibility)
- Harper v. State, 922 N.E.2d 75 (Ind. Ct. App.) (reasonable suspicion review de novo)
- Terry v. Ohio, 392 U.S. 1 (U.S. 1968) (Terry stop and limited frisk)
- Lance v. State, 425 N.E.2d 77 (Ind. 1981) (plain‑view seizure requires incriminating nature be readily apparent)
- Corwin v. State, 962 N.E.2d 118 (Ind. Ct. App.) (plain‑feel/plain‑view limitations)
- Edmond v. State, 951 N.E.2d 585 (Ind. Ct. App.) (odor of marijuana can supply probable cause in proper sequence)
- Starks v. State, 523 N.E.2d 735 (Ind. 1988) (trial court may not impose consecutive habitual‑offender enhancements absent statutory authorization)
- Texas v. Brown, 460 U.S. 730 (U.S. 1983) (clarifying "immediately apparent" standard in plain‑view rule)
- Cardwell v. State, 895 N.E.2d 1219 (Ind.) (Appellate Rule 7(B) appropriateness review factors)