Rashawn M. Appleton v. State of Indiana (mem. dec.) ( 2019 )

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