Court of Appeals of Indiana | Opinion 19A

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A TTORNEY FOR A PPELLANT Timothy P. Broden Lafayette, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana
Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Steven W. Rowland , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. September 8, 2020 Court of Appeals Ca se No. 19A

- CR

- 2761 Appeal from the Tippecanoe Superior Court The Honorable Sarah M. Wyatt , Judge Pro Tempore Trial Court Cause No. 79D04

- 1807

- F6

- 985

Rucker , Senior Judge
. 

## Case Summary

[1] After a bench trial Steven W. Rowland was convicted of possession of a narcotic drug, possession of marijuana, and possession of paraphernalia. He now appeals contending his convictions for the latter two offenses violate theCourt of Appeals of Indiana | Opinion 19A

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Double Jeopardy provisions of the Indiana Constitution. We disagree and affirm. 

## Facts and Procedural History

[2] Shortly after midnight on July 7, 2018 officers of the Lafayette Police Department responded to a 911 call for a wellness check. Someone appeared to be asleep in a car with t he motor running and parked near a dumpster at an apartment complex. Officer Shawna Wainscott was the first officer to arrive on the scene. She located Rowland slumped over in the driver’s seat of a gray Lexus automobile with its motor running and headli ghts on. While waiting for back

- up to arrive Officer Wainscott ran a check of the car’s license plate which revealed the plate was expired. Officers Israel Salazar and Matthew Santerre arrived so o n thereafter. Officer Wainscott tapped on the window of t he passenger side of the car. The driver sat up and talked with Officer Wainscott telling her he was texting on his cell phone which Officer Wainscott observed in Rowlan d’s hand. The officers concluded Rowland was not asleep and noted he showed no signs of intoxication or medical distress.

[3] At that point Rowland was free to leave. But the officers informed Rowland that because of the expired plate if he drove the car then there was a possibility he could be pulled over, receive a ticket, and the car towed

. Rowland then asked if he could back the car into a parking space and the officers agreed. Officer Salazar assisted Rowland in backing his vehicle into the space by illuminating the area with his flashlight. Walking alongside as Rowland backedCourt of Appeals of Indiana | Opinion 19A

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up, Offi cer Salazar shined his flashlight into the car. Doing so he saw on the center console a plastic baggie with a white substance. Based on his training and experience Officer Salazar suspected the baggie contained heroin. Officer Salazar then directed Rowl and to exit the vehicle which the officer then searched. During the search, Officer Salazar discovered bottles of prescription medications, a green leafy substance which he believed was marijuana, pipes used to consume controlled substances, and additiona l baggies of suspected heroin inside a container attached to Rowland’s keychain. The green leafy substance field tested positive for marijuana and after a laboratory examination the substance in the baggies tested positive for hero in.

[4] The State charged Ro wland with Count I Possession of a Narcotic Drug, as a
Level 6 Felony ; 1 Count II Possession of Marijuana, a Class B M isdemeanor; 2 and Count III Possession of Paraphernalia , a Class C Misde meanor
. 3 After several delays and an intervening hearing on Rowland’s motion to suppress evidence, this case proceeded to a bench trial on September 20, 2019. At the close of which the trial court found Rowland guilty on all counts.

[5] A t the November 8, 2019 sente ncing hearing the trial court sentenced Rowland to one and one

- half (1 1⁄2) years on Count I; one hundred eighty (180) days on

1 Ind. Code § 35

- 48

- 4

- 6(a) (2014)

. 2 Ind. Code § 35

- 48

- 4

- 11(a)(1) (2018)

. 3 Ind. Code § 35

- 48

- 4

- 8.3(b)(1) (2015)

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Count II; and sixty (60) days on Count III. All sentences were ordered to be served concurrently with one hundred eighty (180) day s executed through a community corrections program and the balance of one (1) year suspended to probation. This appeal followed. Additional facts are set forth below.



## Discussion and Decision

I.

[6] Rowland contends his convictions for possession of marijuana and possession of paraphernalia violate Indiana’s Double Jeopardy Clause. Article 1, Section 14 of the Indiana Constitution provides “No person shall be put in jeopardy twice for the same o ffense.” In support of his contention Rowland relies on Richardson v. State , in which o ur Supreme Court announced “two or more offenses are the ‘same offense’ in violation of Article I Section 14 of the Indiana Constitution if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.” 717 N.E.2d 32, 49 (Ind. 1999) (emphasis in original)

. Rowland challenges his dual convictions under the Richardson actual evidence test.

[7] However, while this case was pending on appeal our Supreme Court declared

“ w e expressly overrule the Richardson c onstitutional tests in resolving claim s of substantive double jeopardy.” Wadle v. State , _ __ N.E.3d ___ (Ind. 2020) , 2020 WL 4782698 *1

. In so doing it observed that the Richardson tests “have proved largely untenable, ultimately forcing the Court to retreat from its all

- inclusiveCourt of Appeals of Indiana | Opinion 19A

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analytical framework. What we ’ re left with today is a patchwork of conflicting precedent and inconsistent standards, ultimately depriving the Indiana bench and bar of proper guidance in this area of the law.” Id.

[8] In lieu of Richardson the Court adopted an analytical framework that applies statutory rules of construction. More specifically, the C o urt explained:
This framework, which applies when a defendant’s single act or transaction implicates multiple criminal statutes (rather than a single statute), consists of a two

- part inquiry: First, a court must determine, under our included

- offense statutes, whether one charged offense encompasses another charged offense. Second, a court must look at the underlying facts

– as alleged in the information and as adduced at trial

– to determine whether the charged offenses are the ‘ same .’ If the fa cts show two separate and distinct crimes, there’s no violation of substantive double jeopardy, even if one offense is, by definition, ‘ included ’ in the other. But if the facts show only a single continuous crime, and one statutory offense is included in the other, then the presumption is that the legislation intends for alternative (rather than cumulative) sanctions

. W adle at * 1. Applying the forgoing framework here, an “included offense” as defined by our legislature, is an offense that : (1)“is establ ished by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged,” (2) “consists of an attempt to commit the offense charged or an offense otherwise included therein,” or (3) “d iffers from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission.” I nd

. Code § 35

- 31.5

- 2

- 168 (2012)

. “If neither offense is an included offense of the other (either inherently or as charged), there is no violation of double jeopardy. ” Wadle at *12

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[9] In order to convict Rowland of possession of marijuana as a Class B misdemeanor the State was required to prove that he “(1) knowingly or intentionally possesse[d] (pure or adulterated) marijuana . . . .” Ind. Code § 35

- 48

- 4

- 11(a)(1) . And to convict Rowland of possession of paraphernalia as a Class C misdemeanor the State was required to prove that he “knowingly or intentionally possesse[d] a n instrument, a device, or another object that the person intends to use for: (1) introducing into the person’s body a controlled substance.” Ind. Code § 35

- 48

- 4

- 8.3(b)(1)

. The charging in formation in this case tracked the language of the statute. Appellant’s App. Vol II pp. 55

- 56.

[10] Each of these offenses is separate and distinct. They include evidence or facts

not material to the other. The green leafy substance supports the marijuana ch arge and the instrument, device or another object

– in this case several pipes

– supports the paraphernalia charge. Neither is an element of the other

. Further , the offenses do not involve an attempt crime, and the inherent differences between the two of

fenses extend beyond concerns of a less serious harm or risk of harm. In sum, under t he included offense statute neither possession of marijuana nor possession of paraphernalia is an included offense of the other. Further, as charged, neither offense is an included offense of the other. Thus, Rowland’s D ouble J eopardy claim fails.

II.

[11] Although overruling the Richardson Constitutional tests in resolving claims of substantive double jeopardy, the Wadle Court appears to have left undisturbedCourt of Appeals of Indiana | Opinion 19A

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the “ long adhered to [] series of rules of statutory construction and common law that are often described as double jeopardy but are not governed by the constitutional test set forth in Richardson .” Pierce v. State , 761 N.E.2d 826, 830 (Ind. 2002)

. One such rule our Supreme Court has identified is the very same
act test

. Bradley v. State , 113 N.E.3d 742 , 751 (Ind. Ct. App. 2018) , trans. denied

. Th is test applies “when the defendant ’ s ‘behavior’ underlying one offense is ‘coextensive with the behavior .

. . necessary to establish an element of’ ” another offense. Id . at 752 (quoting Taylor v. State , 101 N.E.3d 865, 872 Ind. Ct. App. 2018)); see also Guyton v. State , 771 N.E.2d 1141, 1143 (Ind. 2002) (giving the example of a battery conviction vacated because the information showed that the identical touching was the basis of a second battery conviction).

[12] Rowland invokes the “very same act” rule contending “ the behavior underlying his commission of the offense of possession of marijuana was coextensive with that underlying his commission of the offense of possessio n of paraphernalia.” Appellant’s Br. p. 8. This contention is based on evidence that marijuana was located inside one of the pipes. For example, when shown State’s Exhibit 3 and asked by the deputy prosecutor “What’s in this photo” O fficer Salazar
respo nded: “Those are paraphernalia pipes that had marijuana in them and then next to them are the screens that they use to filter the material.” Tr. Vol. 2 p. 64 . According to Rowland “had the pipes in question contained only tobacco . . . the State would not likely have been able to persuade the trier ofCourt of Appeals of Indiana | Opinion 19A

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fact that they met the statutory defini tion of ‘paraphernalia

. ’” Appellant’s Br. p. 11.

[13] In short Rowland’s position is that the marijuana found in one of the pipes established the instrument as paraphernalia and this was the same marijuana providing the bases for the marijuana possession charg e. First the record is not entirely clear that all of the marijuana seized by the officers was found in the pipes. Prior to asking O fficer Salazar about State’s Exhibit 3

— as recounted above

— the deputy prosecutor asked O fficer Salazar “What did you find w hen searching the car ?” He responded, “Prescription medications, some marijuana, paraphernalia , pipes and then a pill canister on his car keys that had two bags of heroin and I believe that was all. ” Tr. Vol 2 , p p
. 62, 63. This testimony suggests that a ny marijuana found in the pipes was separate and distinct from the additional marijuana found in the car. 4 In any event the notion that the presence of marijuana in the pipes was important in establishing the instruments as paraphernalia is pure speculation. Nothing in the record says anything about how the conclusion was reached that the pipes satisfied the d efinition of paraphernalia. Indeed, their physical appearance and proximity to

4 We also so note that during testimony at Rowland’s motion to suppress hearing, when asked “ W hat did you find when searching the car ? ” Officer Salazar responded, “There was a silver canister on his keys that had more heroin. There was a bunch of prescription pills that he had and there was marijuana and pipes with marijuana in it in the center console.” Tr. Vol 2 , p.18 (emphasis added)

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the heroin may very well have been factors in that regard. This point was not pursued at trial.

[14] Based on the record before us we conclude Rowland’s behavior of possessing mari juana was separate and distinct from his behavior of possessing paraphernalia. The very same act test “does not arise in situations where the subject behavior or harm is either separate from or more extensive than that necessary to constitute the element of the first crime.” Oeth v. State , 775 N.E.2d 696, 703 (Ind. Ct. App. 2002) , trans. denied

.



## Conclusion

[15] We affirm the judgment of the trial court.
Kirsch, J., and Altice, J., concur.