Court of Appeals of Indiana | Memorandum Decision 18A

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### 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.

A TTORNEY FOR A PPELLANT Talisha Griffin Marion County Public Defender Agency Appellate Division Indianapolis , Indiana A TTORNEY S FOR A PPELLEE 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 Ca se No. 18A

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- 2650 Appeal from the Marion Superior Court The Honorable Clark Rogers , Judge Trial Co urt Cause No. 49G25

- 1808

- F6

- 25994

Bradford , Judge .Court of Appeals of Indiana | Memorandum Decision 18A

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# 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, off

icers conducted an inventory search and discovered a black case on the driver’s

- side of the vehicle containing a sy ringe 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 convicti on, 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 vehi cle. 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

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[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 a fter which the trial court found Wilkerson guilty as charg ed. On O ctober 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 s entence 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 ei ther 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 conclud e that there is a reasonable possibili ty 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

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Frazier v. State , 988 N.E.2d 1257, 1262 (Ind. Ct. App. 201 3) (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 pos session of a syringe and Level 6 felony possession of a narcotic drug

. T o convict Wilkerson of unlawful possession of a syringe , the State was required to prove that Wilkerson
posse ssed 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

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- 18. To convict Wilkerson of possession of a narcotic dr ug , the State was required to
prove that W ilkerson, 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. C ode § 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 methamphetam ine 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 unlawfu l

- possession

- of

- a - syringe conviction was not established solely by the fact that the syringe containedCourt of Appeals of Indiana | Memorandum Decision 18A

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

co mmingled 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 judgm ent of the trial court is affirmed.
Crone, J., and Tavitas, J., concur.