Gregory Wilkerson v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Apr 02 2019, 9:38 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Talisha Griffin Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Appellate Division
Indianapolis, Indiana Samuel J. Dayton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gregory Wilkerson, April 2, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2650
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Clark Rogers,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G25-1808-F6-25994
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2650 | April 2, 2019 Page 1 of 5
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, officers conducted an inventory search and discovered a
black case on the driver’s-side of the vehicle containing a syringe 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
conviction, 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 vehicle. 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.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2650 | April 2, 2019 Page 2 of 5
[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 after which the trial court found
Wilkerson guilty as charged. On October 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 sentence 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 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. 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 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.
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Frazier v. State, 988 N.E.2d 1257, 1262 (Ind. Ct. App. 2013) (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 possession of a syringe and
Level 6 felony possession of a narcotic drug. To convict Wilkerson of unlawful
possession of a syringe, the State was required to prove that Wilkerson
possessed 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 § 16-42-19-18. To
convict Wilkerson of possession of a narcotic drug, the State was required to
prove that Wilkerson, 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. Code §
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
methamphetamine 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 unlawful-possession-of-a-syringe
conviction was not established solely by the fact that the syringe contained
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2650 | April 2, 2019 Page 4 of 5
methamphetamine but in conjunction with the facts that it was a loaded syringe
commingled 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 judgment of the trial court is affirmed.
Crone, J., and Tavitas, J., concur.
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