Court of Appeals of Indiana | Memorandum Decision 18A-CR-2650 | April 2, 2019 Page 1 of 5

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Talisha Griffin

Marion County Public Defender Agency

Appellate Division 

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Samuel J. Dayton

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Gregory Wilkerson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 2, 2019

Court of Appeals Case No.

18A-CR-2650

Appeal from the Marion Superior 

Court

The Honorable Clark Rogers,

Judge

Trial Court Cause No.

49G25-1808-F6-25994

Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2650 | April 2, 2019 Page 2 of 5

Case Summary

[1] In August of 2018, a vehicle being driven by Gregory Wilkerson was stopped by 

police for failure to signal and an invalid license plate. After verifying that the 

vehicle was stolen, officers conducted an inventory search and discovered a 

black case on the driver’s-side of the vehicle containing a syringe loaded with 

methamphetamine, baggies, and a scale. Wilkerson was charged with Level 6 

felony unlawful possession of a syringe and Level 6 felony possession of a 

narcotic drug. In September of 2018, Wilkerson was tried to the bench, found 

guilty as charged, and sentenced to 730 days of incarceration for each 

conviction, to be served concurrently. Wilkerson contends that his convictions 

violate the Double Jeopardy Clause of the Indiana Constitution. Because we 

disagree, we affirm. 

Facts and Procedural History

[2] On August 6, 2018, Indianapolis Metropolitan Police Officer Michael Herrera 

initiated a traffic stop on a vehicle being driven by Wilkerson for failing to 

signal and an invalid license plate. Upon confirming that the vehicle was stolen, 

Officer Herrera removed Wilkerson and a passenger from the vehicle. While 

conducting an inventory search, Officer Herrera discovered a black case on the 

driver’s-side floorboard containing a syringe loaded with a brown liquid, 

baggies, and a scale. The brown liquid was later confirmed to be a

methamphetamine solution.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2650 | April 2, 2019 Page 3 of 5

[3] On August 8, 2018, the State charged Wilkerson with Level 6 felony unlawful 

possession of a syringe and Level 6 felony possession of a narcotic drug. On 

September 20, 2018, a bench trial was held after which the trial court found 

Wilkerson guilty as charged. On October 4, 2018, the trial court sentenced

Wilkerson on each conviction to 730 days of incarceration, with 180 days to be 

served in the Indiana Department of Correction and 545 days to be served on 

work release, with each sentence to be served concurrently.

Discussion and Decision

[4] Wilkerson contends that his convictions violate the Double Jeopardy Clause of 

the Indiana Constitution, specifically pursuant to the actual-evidence test. 

Article 1, Section 14 of the Indiana Constitution provides that 

[n]o person shall be put in jeopardy twice for the same offense. In 

Richardson v. State, 717 N.E.2d 32 (Ind. 1999), our Supreme 

Court concluded that two or more offenses are the same offense 

in violation of Article 1, Section 14 if, with respect to either the 

statutory elements of the challenged crimes or the actual evidence 

used to obtain convictions, the essential elements of one 

challenged offense also establish the essential elements of another 

challenged offense. Under the actual-evidence test, we examine 

the actual evidence presented at trial in order to determine 

whether each challenged offense was established by separate and 

distinct facts. To find a double-jeopardy violation under this test, 

we must conclude that there is a reasonable possibility that the 

evidentiary facts used by the fact-finder to establish the essential 

elements of one offense may also have been used to establish the 

essential elements of a second challenged offense. 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2650 | April 2, 2019 Page 4 of 5

Frazier v. State, 988 N.E.2d 1257, 1262 (Ind. Ct. App. 2013) (internal citations 

and quotations omitted). Whether convictions violate double jeopardy is a 

question of law which we review de novo. Vermillion v. State, 978 N.E.2d 459, 

464 (Ind. Ct. App. 2012). 

[5] Wilkerson was convicted of Level 6 felony unlawful possession of a syringe and 

Level 6 felony possession of a narcotic drug. To convict Wilkerson of unlawful 

possession of a syringe, the State was required to prove that Wilkerson 

possessed with intent to violate the Indiana Legend Drug Act, a hypodermic 

syringe or needle or an instrument adapted for the use of a controlled substance 

or legend drug by injection in a human being. Ind. Code § 16-42-19-18. To 

convict Wilkerson of possession of a narcotic drug, the State was required to 

prove that Wilkerson, without a valid prescription or order of a practitioner 

acting in the course of the practitioner’s professional practice, knowingly or 

intentionally possessed methamphetamine (pure or adulterated). Ind. Code § 

35-48-4-6(a). 

[6] We conclude that there is not a reasonable possibility that the trial court used 

the same evidentiary facts to convict Wilkerson of both offenses. Wilkerson’s

possession-of-a-narcotic-drug conviction was established by the 

methamphetamine itself, which was found next to his seat in the vehicle.

Wilkerson specifically argues that his convictions violate double jeopardy 

because the trial court used the same methamphetamine-loaded syringe to 

convict him of both crimes. However, his unlawful-possession-of-a-syringe

conviction was not established solely by the fact that the syringe contained 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2650 | April 2, 2019 Page 5 of 5

methamphetamine but in conjunction with the facts that it was a loaded syringe 

commingled with baggies and a scale, which Officer Herrera knew “through 

training and experience is called a kit that drug users often carry.” Tr. Vol. II p. 

10. Wilkerson has failed to establish that his convictions violate the Double 

Jeopardy Clause of the Indiana Constitution. 

[7] The judgment of the trial court is affirmed. 

Crone, J., and Tavitas, J., concur.