Court of Appeals of Indiana | Opinion 19A-CR-2761 | September 8, 2020 Page 1 of 9

ATTORNEY FOR APPELLANT

Timothy P. Broden

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

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 Case 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 the 
Court of Appeals of Indiana | Opinion 19A-CR-2761 | September 8, 2020 Page 2 of 9

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 the 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 headlights 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 soon thereafter. Officer Wainscott tapped on the window of the 

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

Rowland’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 backed 
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up, Officer 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 Rowland 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 additional 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 heroin.

[4] The State charged Rowland with Count I Possession of a Narcotic Drug, as a 

Level 6 Felony;

1

Count II Possession of Marijuana, a Class B Misdemeanor;2

and Count III Possession of Paraphernalia, a Class C Misdemeanor.

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] At the November 8, 2019 sentencing 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) days 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 offense.” In support of his contention Rowland relies on 

Richardson v. State, in which our 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 

“we expressly overrule the Richardson constitutional tests in resolving claims 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-inclusive 
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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 Court 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 facts 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.

Wadle at * 1. Applying the forgoing framework here, an “included offense” as 

defined by our legislature, is an offense that: (1)“is established 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) 

“differs 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.” Ind. 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] an 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 information 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 

charge 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 offenses extend beyond concerns of a less serious harm or risk 

of harm. In sum, under the 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 Double Jeopardy claim fails. 

II.

[11] Although overruling the Richardson Constitutional tests in resolving claims of 

substantive double jeopardy, the Wadle Court appears to have left undisturbed 
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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. 

This 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 possession 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” Officer Salazar 

responded: “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 of 
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fact that they met the statutory definition 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 charge. First the record is not 

entirely clear that all of the marijuana seized by the officers was found in the 

pipes. Prior to asking Officer Salazar about State’s Exhibit 3—as recounted 

above—the deputy prosecutor asked Officer Salazar “What did you find when 

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, pp. 62, 63. This testimony 

suggests that any marijuana found in the pipes was separate and distinct from 

the additional marijuana found in the car.4In 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 

definition 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 “What 

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 

marijuana 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.