Steven W. Rowland v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: September 8, 2020
• Docket: 19A-CR-2761
• Status: Published

Opinion

FILED Sep 08 2020, 8:52 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy P. Broden Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana

Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Steven W. Rowland, September 8, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2761 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Sarah M. Wyatt, Appellee-Plaintiff. 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 1 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

Court of Appeals of Indiana | Opinion 19A-CR-2761 | September 8, 2020 Page 2 of 9 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 1 2 Level 6 Felony; Count II Possession of Marijuana, a Class B Misdemeanor; 3 and Count III Possession of Paraphernalia, a Class C Misdemeanor. 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 ½) 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).

Court of Appeals of Indiana | Opinion 19A-CR-2761 | September 8, 2020 Page 3 of 9 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

Court of Appeals of Indiana | Opinion 19A-CR-2761 | September 8, 2020 Page 4 of 9 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.

Court of Appeals of Indiana | Opinion 19A-CR-2761 | September 8, 2020 Page 5 of 9 [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

Court of Appeals of Indiana | Opinion 19A-CR-2761 | September 8, 2020 Page 6 of 9 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

Court of Appeals of Indiana | Opinion 19A-CR-2761 | September 8, 2020 Page 7 of 9 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 4 the additional marijuana found in the car. 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

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).

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

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