Dave Stafford for www.theindianalawyer.com
A man convicted on a variety of counts of drug possession will be resentenced after the Indiana Court of Appeals agreed with the state that there was insufficient evidence to convict him of possessing cocaine.
Jacob Lee Silvers was arrested after he fled the scene where his car had pulled over after police had received a tip. He was found guilty as charged of Count 1, Level 6 felony possession of cocaine, for the heroin that lab tests found also contained cocaine; Count 2, Class A misdemeanor resisting law enforcement; Count 3, Class B misdemeanor possession of marijuana; Count 4, Class B misdemeanor visiting a common nuisance; Count 5, Class C misdemeanor possession of paraphernalia, and; Count 6, Level 6 felony possession of a narcotic drug, heroin.
Silvers was sentenced to 912 days for Count 1, 365 days for Count 2 and 180 days for Count 3, to be served consecutively, for an aggregate term of just under four years in prison. He was also sentenced on the other charges to be served concurrently.
But the Indiana Court of Appeals on Friday threw out Silvers’ conviction on Count 1, cocaine possession, because the state agreed with his argument that Silvers could not have known he possessed cocaine that was found in a lab test in what he believed was heroin.
“The State concedes that the evidence does not support this conviction because there is no evidence that Silvers knew the heroin also contained cocaine,†Chief Judge Nancy Vaidik wrote for the panel in Jacob Lee Silvers v. State of Indiana, 18A-CR-1126. “The State asks us to remand this case to the trial court for resentencing on the five remaining counts. … Silvers does not ask for a different remedy. We therefore remand this case to the trial court for resentencing.â€
