Pursuant to Indiana Appellate Rule 65(E), the trial court and parties shall not take
any action in reliance upon this memorandum decision until it is certified.
MEMORANDUM DECISION
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 Appellate Rule 65(D), this Memorandum Decision is not
binding precedent for any court and may be cited only for persuasive value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.
IN THE
Court of Appeals of Indiana
FILED
Oct 21 2026, 8:45 am
Anthony E. Durham,
CLERK
Appellant-Defendant Indiana Supreme Court
Court of Appeals
and Tax Court
v.
State of Indiana,
Appellee-Plaintiff
October 21, 2026
Court of Appeals Case No.
25A-CR-3289
Appeal from the Morgan Superior Court
The Honorable Dakota VanLeeuwen, Judge
Trial Court Cause No.
55D01-2407-CM-1043
Memorandum Decision by Judge Pyle
Court of Appeals of Indiana Memorandum Decision 25A-CR-3289 October 21, 2026 Page 1 of 12
Judges Bradford and Kenworthy concur.
Pyle, Judge.
Statement of the Case
[1] Anthony E. Durham (“Durham”) appeals, following a bench trial, his
conviction for Class B misdemeanor possession of marijuana.1 Durham argues
that: (1) the trial court committed fundamental error when it admitted evidence
of Durham’s marijuana and other drug items; and (2) there is insufficient
evidence to support his conviction. We conclude that: (1) Durham has not
shown fundamental error in the admission of evidence; and (2) the evidence
was sufficient to support Durham’s conviction. Accordingly, we affirm
Durham’s conviction for Class B misdemeanor possession of marijuana.
[2] We affirm.
Issues
1. Whether the trial court committed fundamental error when it
admitted evidence of Durham’s marijuana and other drug items.
2. Whether there is sufficient evidence to support Durham’s
conviction for Class B misdemeanor possession of marijuana.
1
IND. CODE § 35-48-4-11. Durham was also convicted of Class C misdemeanor possession of paraphernalia
and Class C infraction unsafe lane movement but does not challenge those judgments on appeal.
Court of Appeals of Indiana Memorandum Decision 25A-CR-3289 October 21, 2026 Page 2 of 12
Facts
[3] On June 29, 2024, a Mooresville Police Department (“MPD”) sergeant (“the
Sergeant”) was on patrol in Morgan County. As the Sergeant drove behind a
Ford Fiesta, which was driven by Durham (“Durham’s car”), the Sergeant
smelled “a strong odor of burnt marijuana” and “smelled it for a prolonged
amount of time[.]” (Tr. Vol. 2 at 26, 27). The Sergeant followed Durham’s car
onto State Road 144 and saw Durham drive his car to the left of a lane marker.
[4] The Sergeant then initiated a traffic stop. When the Sergeant walked up to
Durham’s car window, the Sergeant again smelled “the strong odor of burnt
marijuana” emanating from the inside of Durham’s car. (Tr. Vol. 2 at 28). The
Sergeant had Durham exit his car and asked Durham how much marijuana was
inside his car. Durham told the Sergeant that he had “a small amount inside of
a can.” (Tr. Vol. 2 at 28). Durham also told the Sergeant that he had a black
bag on the front seat and some THC vapes and THC gummies. Inside
Durham’s car, the Sergeant found the bag containing “green vegetation[,]”
thirteen THC vape pens, six THC gummies, another open pack of THC
gummies, a bag with a “half smoked” “roach[,]” and a pack of rolling papers.
(Tr. Vol. 2 at 30). The Sergeant conducted a mobile THC test on the green
vegetation, and the result showed “a presumptive positive range for THC[.]”
(Tr. Vol. 2 at 31).
Court of Appeals of Indiana Memorandum Decision 25A-CR-3289 October 21, 2026 Page 3 of 12 [5] Thereafter, the Sergeant transported the green vegetation and other evidence to
MPD, photographed and weighed it, placed it into evidence bags, checked it
into MPD’s secured evidence room, and submitted a lab request to have the
green vegetation tested by the Indiana State Police Lab (“the ISP Lab”). An
MPD detective who served as the evidence technician for MPD (“the Evidence
Tech Detective”) then took the green vegetation, which had previously been
placed in a sealed envelope, from the MPD evidence room to the ISP Lab for
testing. The evidence was then placed in the ISP Lab’s vault until testing was
completed. An ISP forensic scientist (“the Forensic Scientist”) conducted the
testing and confirmed that the green vegetation was marijuana and that it
contained “over one percent of Delta 9 tetrahydro cannabinol, which is also
known as THC.” (Tr. Vol. 2 at 37). Thereafter, the ISP Lab returned the
marijuana to MPD, where the evidence was stored until trial.
[6] The State charged Durham with Class B misdemeanor possession of marijuana,
Class C misdemeanor possession of paraphernalia, and Class C infraction
unsafe lane movement.
[7] Prior to trial and while Durham was represented by counsel, he filed a notice
requesting to assert a defense under the Indiana Religious Freedom Restoration
Act (“RFRA”) (“the RFRA defense notice”). In the RFRA defense notice,
Durham acknowledged that he had had “several marijuana products” in his car
and asserted that he was “of Pagan religion.” (App. Vol. 2 at 31, 33). Durham
argued that he should not be subjected to the possession of marijuana statute
and charge because of his Pagan religion. The trial court held a hearing on
Court of Appeals of Indiana Memorandum Decision 25A-CR-3289 October 21, 2026 Page 4 of 12
Durham’s notice, determined that Durham had failed to meet his burden, and
denied his request to assert a RFRA defense.
[8] Thereafter, Durham’s counsel withdrew her appearance, and Durham
represented himself during the remainder of the pretrial process. The State
subsequently filed its witness list, which included the names of the Sergeant, the
Evidence Tech Detective, the Forensic Scientist, and its exhibit list, which
included the marijuana and other items seized from Durham’s car. Durham
then filed a motion to compel the State to provide the name of its witnesses, its
list of evidence, and any audio and video evidence. Thereafter, the trial court
issued an order, noting that the State had already filed its witness and exhibit
lists. The trial court also noted that Durham was seeking to have the State
provide him with “the evidence [it was] presenting prior to trial” and directed
Durham that “[a]ny evidence [Durham] wishe[d] to obtain beyond the State’s
evidence ha[d] to be properly requested by [Durham].” (App. Vol. 2 at 70).
[9] Two days before trial, Durham filed various pretrial motions, including a
motion in limine. In his limine motion, Durham sought, in part, to preclude
the State from introducing any exhibit that lacked a “documented chain of
custody[.]” (App. Vol. 2 at 108).
[10] The trial court held a one-day bench trial in December 2025. Durham appeared
pro se for the trial. The trial court first addressed Durham’s pretrial motions.
In regard to Durham’s motion in limine request on the chain of custody, the
trial court explained to Durham that he could make an argument on the chain
Court of Appeals of Indiana Memorandum Decision 25A-CR-3289 October 21, 2026 Page 5 of 12
of custody during trial. The trial court also addressed Durham’s previous
motion to compel and noted that the State had complied with discovery and
had provided Durham with what the State was going to present at trial.
Additionally, the trial court noted that Durham had not filed any third-party
subpoenas.
[11] During the trial, the State introduced the marijuana and other items from
Durham’s car as State’s Exhibits 1 through 6. The Sergeant, the Evidence Tech
Detective, and the Forensic Scientist testified about the chain of custody for the
evidence as set forth above. Additionally, the Sergeant and the Evidence Tech
Detective confirmed that State’s Exhibits 1 through 6 appeared to be in the
same or substantially similar condition as when he had had possession of them.
[12] During cross-examination of the Evidence Tech Detective, Durham asked if he
had documentation for the chain of custody of the evidence. The Evidence
Tech Detective confirmed that he did, and Durham asked if he could provide
that to Durham. The trial court informed Durham that the trial was “not a
time to ask for documents” and that Durham would have needed to file a thirdparty subpoena if he had wanted that documentation. (Tr. Vol. 2 at 24). The
trial court told Durham that the trial was the “time for [Durham] to ask this
witness questions” and instructed Durham to “ask him any questions that [he]
ha[d].” (Tr. Vol. 2 at 24, 25). Thereafter, Durham asked the Evidence Tech
Detective to confirm that he was “validating” that he had received the evidence
from the Sergeant, stored the evidence, and then had transported it to the ISP
Lab. (Tr. Vol. 2 at 25). After the Evidence Tech Detective confirmed that
Court of Appeals of Indiana Memorandum Decision 25A-CR-3289 October 21, 2026 Page 6 of 12
information as correct, Durham did not ask any more cross-examination
questions. When the State moved to admit State’s Exhibits 1 through 6 into
evidence, the trial court specifically asked Durham if he had any objections, and
Durham stated that he had no objection to the admission of the evidence.
[13] As for the identification of the green vegetation in State’s Exhibit 1, the
Forensic Scientist testified about how she had tested the substance and had
determined that it was marijuana. The Forensic Scientist also testified about
the content level of THC in the substance. Specifically, she testified that the
substance contained “over one percent of Delta 9 tetrahydro cannabinol, which
is also known as THC.” (Tr. Vol. 2 at 37).
[14] The trial court found Durham guilty as charged. Thereafter, the trial court
imposed an aggregate twelve-day sentence with credit for time served.
[15] Durham now appeals.
Decision
[16] Durham argues that: (1) the trial court committed fundamental error when it
admitted evidence of Durham’s marijuana and other drug items; and (2) there is
insufficient evidence to support his conviction. We will review each argument
in turn.
1. Fundamental Error in Admission of Evidence
[17] Durham first challenges the trial court’s admission into evidence of State’s
Exhibits 1 through 6, which were the marijuana and other drug items found in
Court of Appeals of Indiana Memorandum Decision 25A-CR-3289 October 21, 2026 Page 7 of 12
his car. Specifically, Durham contends that the trial court should have
excluded this evidence because the State failed to establish an adequate
foundation for the chain of custody. Durham contends that the foundation was
inadequate because the State did not introduce documentation for the chain of
custody in addition to the witnesses’ testimony.
[18] Durham acknowledges that he did not object to this evidence when the State
offered it for admission into evidence. His failure to object to the challenged
exhibits and testimony results in waiver of any argument regarding its
admissibility. See Hoglund v. State, 962 N.E.2d 1230, 1239 (Ind. 2012) (“Failure
to object at trial waives the issue for review unless fundamental error
occurred.”), reh’g denied. Durham recognizes this procedural default and argues
that the admission of the evidence constituted fundamental error.
[19] “[F]undamental error in the evidentiary decisions of our trial courts is especially
rare.” Merritt v. State, 99 N.E.3d 706, 709 (Ind. Ct. App. 2018), trans. denied.
The fundamental error exception “is extremely narrow and encompasses only
errors so blatant that the trial judge should have acted independently to correct
the situation.” Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018) (internal
quotation marks and citation omitted). “An error is fundamental, and thus
reviewable on appeal, if it made a fair trial impossible or constituted a clearly
blatant violation of basic and elementary principles of due process presenting an
undeniable and substantial potential for harm.” Id. (internal quotation marks
and citation omitted). “Harm is not shown by the fact that the defendant was
ultimately convicted; rather harm is found when error is so prejudicial as to
Court of Appeals of Indiana Memorandum Decision 25A-CR-3289 October 21, 2026 Page 8 of 12
make a fair trial impossible.” Hoglund, 962 N.E.2d at 1239. “Fundamental
error is meant to permit appellate courts a means to correct the most egregious
and blatant trial errors that otherwise would have been procedurally barred, not
to provide a second bite at the apple for defense counsel who ignorantly,
carelessly, or strategically fail to preserve an error.” Ryan v. State, 9 N.E.3d 663,
668 (Ind. 2014), reh’g denied, abrogated on other grounds by Konkle v. State, 253
N.E.3d 1068 (Ind. 2025).
[20] “For fungible items such as . . . drugs, an adequate foundation is laid when the
whereabouts of an exhibit is shown from the time it came into the possession of
the police.” Mateo v. State, 981 N.E.2d 59, 66 (Ind. Ct. App. 2012), trans. denied.
“To establish a proper chain of custody, the State must give reasonable
assurances that the evidence remained in an undisturbed condition.” Troxell v.
State, 778 N.E.2d 811, 814 (Ind. 2002). “However, the State need not establish
a perfect chain of custody, and once the State strongly suggests the exact
whereabouts of the evidence, any gaps go to the weight of the evidence and not
to admissibility.” Id. (cleaned up). “Moreover, there is a presumption of
regularity in the handling of evidence by officers, and there is a presumption
that officers exercise due care in handling their duties.” Id. “To mount a
successful challenge to the chain of custody, [a defendant] must present
evidence that does more than raise a mere possibility that the evidence may
have been tampered with.” Id.
[21] Here, the State provided “reasonable assurances that the evidence remained in
an undisturbed condition” through the testimony of the Sergeant, the Evidence
Court of Appeals of Indiana Memorandum Decision 25A-CR-3289 October 21, 2026 Page 9 of 12
Tech Detective, and the Forensic Scientist about the chain of custody for the
evidence. See Troxell, 778 N.E.2d at 814. Their testimony showed that the
marijuana and other evidence obtained from Durham’s car was taken to the
MPD where it was packaged in evidence bags and secured until the time it was
transported to the ISP Lab, where it was again secured until it was tested and
eventually returned to the MPD. Because the witnesses’ testimony provided
“reasonable assurances that the evidence remained in an undisturbed
condition[,]” we conclude that there was no error, let alone fundamental error,
in the admission of State’s Exhibits 1 through 6. See Troxell, 778 N.E.2d at 814
(concluding that there was no error or fundamental error where witnesses
testified to the chain of custody). 2
2. Sufficiency of the Evidence
[22] We next turn to Durham’s argument that there is insufficient evidence to
support his conviction for Class B misdemeanor possession of marijuana. We
disagree.
[23] “Sufficiency-of-the-evidence claims trigger a deferential standard of review in
which we neither reweigh the evidence nor judge witness credibility, instead
reserving those matters to the province of the jury.” Hancz-Barron v. State, 235
2
We also reject Durham’s suggestion that the trial court impeded his ability to cross-examine the Evidence
Tech Detective when the trial court explained to Durham that trial was a time for Durham to ask questions
and not to request documentation. Indeed, the record reveals that Durham was able to cross-examine the
witness about the chain of custody.
Court of Appeals of Indiana Memorandum Decision 25A-CR-3289 October 21, 2026 Page 10 of 12
N.E.3d 1237, 1244 (Ind. 2024) (cleaned up). “A conviction is supported by
sufficient evidence if there is substantial evidence of probative value supporting
each element of the offense such that a reasonable trier of fact could have found
the defendant guilty beyond a reasonable doubt.” Id. (cleaned up). “In
conducting that review, we consider only the evidence that supports the jury’s
determination, not evidence that might undermine it.” Id.
[24] To convict Durham of Class B misdemeanor possession of marijuana, the State
was required to prove beyond a reasonable doubt that Durham knowingly or
intentionally possessed marijuana. See I.C. § 35-48-4-11(a)(1). To prove that
the substance possessed is marijuana, the State was required to “prove beyond a
reasonable doubt that a substance is marijuana by proving that the substance's
delta-9-THC concentration exceeds 0.3% on a dry weight basis.” Fritz v. State,
223 N.E.3d 265, 277 (Ind. Ct. App. 2023). See also Lakes v. State, 224 N.E.3d
373, 375 (Ind. Ct. App. 2024). “[T]he State [does] not need to prove the exact
percent concentration of THC, but [it does] need to prove the substance
possessed was marijuana.” Fedij v. State, 186 N.E.3d 696, 709 (Ind. Ct. App.
2022).
[25] Here, the Forensic Scientist testified that the green vegetation was marijuana
and that it contained “over one percent of Delta 9 tetrahydro cannabinol, which
is also known as THC.” (Tr. Vol. 2 at 37). Accordingly, the State presented
sufficient evidence to show that the green vegetation substance that Durham
possessed was marijuana. See Fritz, 223 N.E.3d at 277; Fedij, 186 N.E.3d at
709. Indeed, Durham acknowledges the sufficiency of the Forensic Scientist’s
Court of Appeals of Indiana Memorandum Decision 25A-CR-3289 October 21, 2026 Page 11 of 12
testimony, but he attempts to challenge the weight of that testimony by
resurrecting his chain-of-custody argument and suggesting that her testimony
would not be sufficient if the chain of custody had not been properly
established. We, however, have already determined that Durham’s chain-ofcustody argument is without merit.
[26] Durham’s argument that there was insufficient evidence to support his
conviction is nothing more than a request to reweigh the evidence and
credibility of witnesses, which we decline to do. See Hancz-Barron, 235 N.E.3d
at 1244. The evidence presented at trial supports the trial court’s determination,
as trier of fact, that Durham possessed marijuana. Accordingly, we affirm
Durham’s conviction for Class B misdemeanor possession of marijuana.
[27] Affirmed.
Bradford, J., and Kenworthy, J., concur.
ATTORNEY FOR APPELLANT
Ryan P. Dillon
Dillon Legal Group, P.C.
Franklin, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Daniel H. Frohman
Deputy Attorney General
Indianapolis, Indiana
Court of Appeals of Indiana Memorandum Decision 25A-CR-3289 October 21, 2026 Page 12 of 12