Rashawn M. Appleton v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 15, 2019
• Docket: 18A-CR-2507
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 15 2019, 10:05 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Rashawn M. Appleton, August 15, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2507 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable John T. Roach, Appellee-Plaintiff. Judge Trial Court Cause No. 84D01-1612-F5-3319

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2507 | August 15, 2019 Page 1 of 12 Case Summary and Issue [1] Following a jury trial, Rashawn Appleton was found guilty of Level 5 felony

dealing in marijuana, Level 6 felony maintaining a common nuisance, and

Class B misdemeanor possession of marijuana. After merging the dealing and

possession counts, the trial court entered judgments of conviction for dealing in

marijuana and maintaining a common nuisance and sentenced Appleton to an

aggregate sentence of four and one-half years to be served as a direct placement

on work release. Appleton now appeals his convictions, alleging that the two

convictions for dealing in marijuana and maintaining a common nuisance were

based on the same actual evidence and that, therefore, convictions for both

violate principles of double jeopardy. Concluding that the conviction of

maintaining a common nuisance must be vacated due to a double jeopardy

violation, we affirm in part, reverse in part, and remand.

Facts and Procedural History [2] On December 7, 2016, J.T. Pierce, an officer with the Terre Haute Police

Department who was also appointed to be a task force officer with the United

States Marshal Service, executed a warrant for Appleton’s arrest. Officer

Pierce’s partner, Rob Pitts, used federal software to locate Appleton at a

residence on 5th Avenue in Terre Haute. When Officers Pierce and Pitts

arrived at that address, they observed two vehicles, a Chrysler 300 and a Dodge

Nitro, parked “at . . . or near [the] residence.” [Transcript of] Jury Trial,

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2507 | August 15, 2019 Page 2 of 12 Volume 2 at 9. Officer Pierce verified that the vehicles were registered to

Appleton by checking records from the Indiana Bureau of Motor Vehicles.

[3] As Officers Pierce and Pitts surveilled the residence, they observed two

additional vehicles “pull[] up” and park near the residence “[w]ithin seconds of

each other.” Id. at 10. A male exited one vehicle. A female exited the other

and removed two children from her vehicle. The man, woman, and children

walked up to the 5th Avenue residence. Appleton stepped outside, helped the

woman with her children, and everyone entered the residence. Officer Pitts

then placed a request for backup. Deputy U.S. Marshal Greg Snyder and Terre

Haute Police Department Detectives Marty Dooley and Marcia Bahr arrived

approximately five minutes later.

[4] Detectives Dooley and Bahr went to the rear of the residence to prevent

Appleton from attempting to escape through the back door when the officers

executed the warrant. The detectives observed another vehicle “parked out

back that had two people in[side.]” Id. at 12. The detectives detained the

individuals in the vehicle and secured them for purposes of officer safety.

[5] One of the occupants of the vehicle had a plastic bag that contained a plant-like

material that smelled like marijuana. The occupants told the detectives that

they had purchased seventy dollars-worth of marijuana at the 5th Avenue

residence from a person named “Mannie.” Id. at 50. The detectives

confiscated the marijuana but allowed the occupants of the car to go for the

time being.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2507 | August 15, 2019 Page 3 of 12 [6] Meanwhile, Officer Pierce and Deputy Snyder knocked on the front door of the

5th Avenue residence. Appleton came to the door, stepped outside, and was

immediately handcuffed and placed into custody. When Appleton opened the

door, Pierce and Snyder detected a strong odor of raw and burnt marijuana

emanating from the residence.

[7] After Appleton was placed into custody, another man exited the house. The

man initially provided a false name, but the officers eventually identified him as

Emmanuel Jones. The officers discovered that Jones had an active arrest

warrant, so they placed him into custody as well. They also learned that Jones

was the “Mannie” identified by the occupants of the vehicle that Detectives

Dooley and Bahr had detained. Id.

[8] Due to the strong odor of marijuana emanating from the residence, Detective

Dooley left to apply for a search warrant to search the house as well as the

Dodge Nitro that was parked in the driveway. Remaining law enforcement

secured the residence and directed the remaining occupants (two men, a

woman, and three children) to stay seated in the front room.1 The woman

voluntarily explained to law enforcement that Appleton and Jones had lived at

the 5th Avenue residence for approximately three months.

1 At least five adults, including Appleton and Jones, were inside the residence when law enforcement executed the warrant for Appleton’s arrest.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2507 | August 15, 2019 Page 4 of 12 [9] Detective Dooley returned a short time later with the search warrant. During a

search of the basement of the home, the officers found a trashcan that contained

bags which, in turn, contained marijuana packaged in multiple, smaller sealed

sandwich bags. The officers also found four or five bags of marijuana located

underneath pallets. On the main level of the home, the police found a semi-

automatic weapon. They also found a bill from Duke Energy; a bill from

Indiana American Water; and a payment stub from Frontier Communications,

all three bearing Appleton’s name and the 5th Avenue address; $450.00; a set of

digital scales; and a large marijuana bud. When the officers searched the

mailbox at the residence, they found a small amount of marijuana along with

swisher sweet cigars, which are used to roll and smoke marijuana and make the

marijuana “taste[] a little bit better because it’s sweeter.” Id. at 85.

[10] Pursuant to the search warrant secured by Detective Dooley, the officers also

searched the Dodge Nitro that was parked in the driveway. In the backseat, the

officers found approximately fourteen grams of marijuana inside of a backpack.

[11] The Chrysler 300 was parked in front of the residence. The officers observed

that marijuana could be seen in the vehicle’s cup holder. The officers towed the

vehicle to the Terre Haute Police Department and obtained a warrant to search

it. Upon executing the search, the officers retrieved the marijuana located in

the cup holder and found a handgun underneath the steering column.

[12] In all, law enforcement recovered from the 5th Avenue residence and

Appleton’s vehicles fourteen bags of marijuana weighing a total of 11.7 pounds.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2507 | August 15, 2019 Page 5 of 12 [13] The State charged Appleton with Level 5 felony dealing in marijuana, Level 6

felony maintaining a common nuisance, and Class B misdemeanor possession

of marijuana. A two-day jury trial was held on July 16 and 17, 2018. At trial,

the State argued in closing that Appleton was guilty of dealing marijuana as an

accomplice because he aided Jones in dealing in marijuana by allowing Jones to

“use a residence leased in [Appleton’s] name[,] . . . use vehicles leased in

[Appleton’s] name[, a]nd . . . use a residence that had service and utilities that

were in [Appleton’s] name.” Tr., Vol. 3 at 5. The State also argued that

Appleton was guilty of maintaining a common nuisance because he maintained

a house, vehicles, and utilities in his name that he knew were being used for the

purpose of marijuana dealing.

[14] A jury found Appleton guilty as charged. The trial court merged the possession

count into the dealing count and sentenced Appleton to concurrent sentences of

four and one-half years for Level 5 felony dealing in marijuana and two years

for Level 6 felony maintaining a common nuisance. The sentence was ordered

to be served as a direct placement in community corrections work release.

Appleton now appeals. Additional facts will be supplied as necessary.

Discussion and Decision I. Standard of Review [15] Appleton argues that his convictions violate the Double Jeopardy Clause of the

Indiana Constitution, claiming specifically that they fail the actual evidence test

articulated in Richardson v. State, 717 N.E.2d 32 (Ind. 1999). Whether Court of Appeals of Indiana | Memorandum Decision 18A-CR-2507 | August 15, 2019 Page 6 of 12 convictions violate double jeopardy is a question of law which we review de

novo. Grabarczyk v. State, 772 N.E.2d 428, 432 (Ind. Ct. App. 2002).

[16] 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, 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. 717 N.E.2d at 49. 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. Id. at 53. 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.” Id. There is no double jeopardy violation under the actual evidence

test when the evidentiary facts establishing the essential elements of one offense

also establish only one or even several of the essential elements of a second

offense. Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002).

[17] Application of this test requires the court to “identify the essential elements of

each of the challenged crimes and to evaluate the evidence from the jury’s

perspective . . . .” Id. at 832. In determining the facts used by the factfinder to

establish the elements of each offense, it is appropriate to consider the charging

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2507 | August 15, 2019 Page 7 of 12 information, jury instructions, and arguments of counsel. Id.; Richardson, 717

N.E.2d at 54 n.48.

II. Appleton’s Convictions [18] In order to prove Appleton guilty of Level 5 felony dealing in marijuana as an

accomplice, the State had to show that Appleton knowingly or intentionally

aided Jones in possessing marijuana with intent to deliver said marijuana

having a weight of at least ten pounds. Ind. Code §§ 35-48-4-10(a)(2), —

(d)(2)(A)(i); 35-41-2-4. To prove Level 6 felony maintaining a common

nuisance, the State had to show that Appleton knowingly or intentionally

maintained a building, structure, vehicle, or other place that was used for the

purpose of using, manufacturing, keeping, offering for sale, selling, delivering,

or financing the delivery of a controlled substance. Ind. Code § 35-45-1-5(c).

[19] In the final instructions, the jury was instructed as follows regarding aiding in

the commission of dealing in marijuana:

Aiding, inducing or causing Dealing in Marijuana is defined by law as follows: A person who knowingly or intentionally aids another person to commit an offense, commits that offense. A person may be convicted of Aiding Dealing in Marijuana, even if the other person has not been prosecuted for Dealing Marijuana, has not been conviction [sic] of Dealing Marijuana or has been acquitted of Dealing Marijuana.

Before you may convict the defendant, the State must have proved each of the following element, elements [sic] beyond a reasonable doubt:

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2507 | August 15, 2019 Page 8 of 12 1. The defendant;

2. knowingly;

3. aided;

4. Emmanuel Jones in committing the offense of Dealing Marijuana, as defined as:

a. knowingly or intentionally;

b. possessing with intent to deliver;

c. pure or adulterated marijuana;

d. the amount involved was at least ten pounds of marijuana;

5. by one or more of the following:

a. allowing Emmanuel Jones to utilize one or more vehicles registered in his name to deal marijuana and/or;

b. by allowing Emmanuel Jones to use the residence leased in his name to deal marijuana, and/or;

c. by allowing Emmanuel Jones to use a residence with services and utilities in his name to deal marijuana.

Tr., Vol. 3 at 24-25.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2507 | August 15, 2019 Page 9 of 12 [20] Regarding the maintaining a common nuisance charge, the jury was instructed

as follows:

The crime of Maintaining a Common Nuisance is defined by law as follows: A person who knowingly[] or intentionally maintains a building, structure, vehicle, [or] other place that is used for the purpose of unlawfully using, keeping, offering for sale, selling, or delivering a controlled substance, commits maintaining a common nuisance, a level 6 felony.

To convict the defendant, the State must have proved each of the following beyond a reasonable doubt:

1. The defendant;

2. knowingly[] or intentionally;

3. maintained a building, structure, vehicle, [or] other place; and

4. that was used for the purpose of unlawfully using, keeping, offering for sale, selling, or delivering a controlled substance.

Id. at 25-26.

[21] At trial, the evidence presented against Appleton boiled down to the following

facts: Appleton was at a residence where more than ten pounds of marijuana

were found between the house and the vehicles parked on or near the property;

Jones, testifying for the defense, admitted that he had pleaded guilty to dealing

in marijuana, maintaining a common nuisance, and possession of marijuana for

the incident that occurred at the 5th Avenue residence on December 7, 2016; Court of Appeals of Indiana | Memorandum Decision 18A-CR-2507 | August 15, 2019 Page 10 of 12 the lease for the residence contained Appleton’s signature; the Dodge Nitro and

the Chrysler 300 were registered in Appleton’s name; and utilities for the

residence were in Appleton’s name.

[22] When we compare the evidence presented at trial and the jury instructions

provided, we find that there is a reasonable possibility that the jury used the

same evidentiary facts to prove the essential elements of aiding in the

commission of dealing in marijuana and the essential elements of maintaining a

common nuisance. Appleton’s convictions for both violate principles of double

jeopardy.

[23] When we find two convictions contravene double jeopardy principles, we may

remedy the violation by reducing either conviction to a less serious form of the

same offense if doing so will eliminate the violation. Richardson, 717 N.E.2d at

54. If it will not, one of the convictions must be vacated. Id. Reducing

Appleton’s conviction for dealing in marijuana to a less serious form does not

eliminate the violation, and maintaining a common nuisance does not exist in a

less serious form. As such, Appleton’s maintaining a common nuisance

conviction and sentence must be vacated. See id. at 55 (when two convictions

cannot stand because of a double jeopardy violation, the conviction with the

less severe penal consequences should be vacated). This leaves in place

Appleton’s conviction and sentence for Level 5 felony dealing in marijuana.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2507 | August 15, 2019 Page 11 of 12 Conclusion [24] In conclusion, Appleton’s convictions of both Level 5 felony dealing in

marijuana and Level 6 felony maintaining a common nuisance violate the

Double Jeopardy Clause of the Indiana Constitution. We therefore remand to

the trial court to vacate Appleton’s conviction and sentence for maintaining a

common nuisance.

[25] Affirmed in part, reversed in part, and remanded for proceedings consistent

with this opinion.

Baker, J., and Najam, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2507 | August 15, 2019 Page 12 of 12