Brown, J.
John Solomon appeals his conviction for possession of marijuana as a class B misdemeanor. Solomon raises one issue which we revise and restate as whether his conviction violates his right to liberty and pursuit of happiness under Article 1, Section 1, of the Indiana Constitution.
On April 15, 2017, Indianapolis Metropolitan Police Officer Mitchel Farnsley initiated a traffic stop of a silver Buick near 30th Street and Capitol Avenue in Marion County. There were five occupants in the vehicle, and Solomon was seated in a rear seat. … The police discovered numerous syringes and some aluminum foil, along with a “marijuana blunt, located directly smooshed between the seat and the back seat . . . where John Solomon’s butt would have been sitting.” …
On April 16, 2017, the State charged Solomon with possession of marijuana as a class B misdemeanor. On August 1, 2018, the court held a bench trial at which Solomon testified that he did not know there was a marijuana blunt beneath him, that the marijuana blunt did not belong to him, and that he told Officer Haley that it did not belong to him. The court found Solomon guilty of possession of marijuana as a class B misdemeanor and sentenced him to twenty days with fourteen days suspended.
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Ind. Code § 35-48-4-11 provides that a person who knowingly or intentionally possesses marijuana commits possession of marijuana as a class B misdemeanor.
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Solomon asserts that the possession of a single blunt of marijuana by an adult who is not driving or otherwise impacting others falls well within the protections afforded by Section 1 and that marijuana brings happiness to some people, whether helping to alleviate a medical condition or for recreational purposes. He argues that thirty-two states have legalized the use of marijuana for medicinal and/or recreational use and that his possession of a small amount of marijuana as a passenger of a vehicle does not adversely affect anyone else.
He argues that marijuana use was legal in 1851 when the Indiana Constitution was drafted and ratified, that George Washington reportedly cultivated marijuana, and that in the mid-1800s marijuana was legal in the United States and used for medicinal purposes on a small scale. He also states that “[w]hen immigrants from Mexico and the West Indies began the practice of smoking marijuana around 1900, states began to criminalize the possession or sale of marijuana in statutes that ‘stemmed largely from racism and concern that use would spread,’”… and that the possession of marijuana appears to have been criminalized in Indiana in the 1930s.
Solomon further argues that the Indiana Supreme Court, in Herman v. State, 8 Ind. 545 (1855), found the liquor act of 1855 unconstitutional under Section 1. Appellant’s Brief at 8-9 (citing Herman, 8 Ind. at 558-564 (“[T]he right of liberty and pursuing happiness secured by the constitution, embraces the right, in each compos mentis individual, of selecting what he will eat and drink, in short, his beverages, so far as he may be capable of producing them, or they may be within his reach, and that the legislature cannot take away that right by direct enactment. If the constitution does not secure this right to the people, it secures nothing of value. . . . The happiness enjoyed in the exercise of general, reasonably regulated liberty by all, overbalances the evil of occasional individual excess.”)). …
The State responds that Solomon’s constitutional claim is waived because he did not raise it before the trial court and that, because Solomon did not provide the trial court with an opportunity to consider a challenge to the constitutionality of the marijuana possession statute or the State with the opportunity to offer evidence in support of the constitutionality of the statute, this Court should find his claim waived and decline to address it. …
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Solomon did not argue before the trial court that Ind. Code § 35-48-4-11 violates Article 1, Section 1 of the Indiana Constitution as applied to him. The parties did not present arguments or evidence regarding the extent to which Solomon’s marijuana possession was protected by Section 1. Even if Solomon did not waive his claim and his claim is justiciable, we conclude that reversal is not warranted. While the Indiana Supreme Court may have found in Herman and Beebe that the liquor act of 1855 violated Section 1, we note that the Indiana Supreme Court subsequently held in Schmitt that the control of liquor was “entirely within the power of the people through the Legislature.” 187 Ind. 623, 120 N.E. at 22. See also Morrison, 821 N.E.2d at 32 (observing that Beebe and “others following it were later overruled during the Prohibition Era”). Some states may have elected to permit the use of, and de-criminalize the possession of, marijuana under certain circumstances. Other states have not elected to do so. The Indiana legislature has not repealed Ind. Code § 35-48-4-11.
The extent to which Solomon’s possession of marijuana under these circumstances constituted a criminal offense is a legislative determination and not a judicial one. Solomon has not established that he had a constitutional right to possess marijuana or that Ind. Code § 35-48-4-11 violates Article 1, Section 1, of the Indiana Constitution as applied to him.
For the foregoing reasons, we affirm Solomon’s conviction.
Bailey, J., and Bradford, J., concur.