Floyd Weddle v. State of Indiana

Oct 18 2013, 5:43 am
FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
RUSSELL A. JOHNSON GREGORY F. ZOELLER
HEATH Y. JOHNSON Attorney General of Indiana
SUZY ST. JOHN
Johnson, Gray & MacAbee BRIAN L. REITZ
Franklin, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
FLOYD WEDDLE, )
)
Appellant-Defendant, )
)
vs. ) No. 73A01-1209-CR-452
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE SHELBY SUPERIOR COURT NO. 1
The Honorable Jack A. Tandy, Judge
Cause No. 73D01-1101-FA-2
October 18, 2013
OPINION ON REHEARING—FOR PUBLICATION
BAKER, Judge
In our original opinion reported as Weddle v. State, 989 N.E.2d 371 (Ind. Ct. App.
2013), we addressed Weddle’s claims regarding the propriety of the police officers’
protective sweep and subsequent search of his residence that led to the discovery of drugs
and paraphernalia. We determined that the protective sweep of the residence was proper
and the items seized during the subsequent search were properly admitted into evidence.
Id. at 377-78. As a result, Weddle was convicted of
Count I—Manufacturing Methamphetamine, a class A felony
Count II—Possession of Methamphetamine, a class B felony
Count III—Possession of Drug Lab Precursors, a class D felony
Count IV—Maintaining a Common Nuisance, a class D felony
Count V—Possession of Marijuana a class A misdemeanor
Count VI—Possession of Marijuana, a class A misdemeanor
Id. at 375.1 The trial court sentenced Weddle to concurrent sentences on all counts that
resulted in an aggregate term of thirty-five years. Id.We now grant Weddle’s petition for rehearing for the limited purpose of
addressing an omitted issue regarding his convictions for both manufacturing
methamphetamine and possession of methamphetamine. Weddle maintains that
convicting him of both offenses violated the Indiana Constitution’s prohibition against
double jeopardy.
In support of his claim, Weddle argues that
The charging information for Counts 1 and 2 does not specify different
modes of conduct. App. 24. Additionally, it appears the only evidence to
support the possession charge came from Jenna Crawford, who testified the
Gatorade cooler tested positive for methamphetamine, and the presence of
1
The trial court subsequently vacated the conviction in Count V.
2
Ephedrine/Pseudoephedrine. Tr. 646; State’s Exh. 4. Moreover, during
closing argument, the prosecutor pointed to the same evidence to support
counts 1 and 2. Id. at 834-35.
** *
The prosecutor then moved on to discuss the possession of precursors
charge without specifically referencing Count 2. Id. at 836. The court’s
instructions do not shed light on separate theories of conduct to support
Counts 1 and 2, and neither does the charging information. App. 24.
***
Therefore, the State advanced the same evidence to support both charges,
and there is a reasonable possibility the jury relied on the same evidence for
both.
Appellant’s Br. p. 25-26.
We initially observe that determining whether multiple convictions violate
the prohibition against double jeopardy is a question of law that this Court reviews
de novo. Sloan v. State, 947 N.E.2d 917, 920 (Ind. 2011). One way by which
punishment for two or more offenses is punishment for the “same offense” in
violation of Article 1, Section 14 of the Indiana Constitution is where the actual
evidence used to convict one challenged offense also establishes the elements of
another challenged offense. Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999).
To show a violation under the actual evidence test, Weddle “must
demonstrate 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 elements of a second challenged offense.” Id. at 53. The
possibility must be reasonable, not speculative or remote. Lee v. State, 892
N.E.2d 1231, 1236 (Ind. 2008). Additionally, as long as “each conviction
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require[s] proof of at least one unique evidentiary fact,” no violation of the actual
evidence test occurs. Bald v. State, 766 N.E.2d 1170, 1172 (Ind. 2002). As our
Supreme Court observed in Spivey v. State:
[U]nder the Richardson actual evidence test, the Indiana Double Jeopardy
Clause is not violated when the evidentiary facts establishing the essential
elements of one offense also establish one or even several, but not all, of
the essential elements of a second offense.
761 N.E.2d 831, 833 (Ind. 2002); see also Redman v. State, 743 N.E.2d 263, 267
(Ind. 2001) (stating that under Richardson it is “necessary to show a possibility
that the same evidentiary facts were used to prove the body of essential elements
that comprise each” of the two offenses).
In this case Weddle was found in possession of methamphetamine. Tr. p.
643, 645-46; Exs. 2-4. The police also found numerous accoutrements in the
residence that are used to manufacture additional methamphetamine. These items
included a Gatorade cooler containing a white plastic jar with coffee filters and an
off-white substance, several plastic funnels, a one gallon bottle of Crown Toluol,
an organic solvent, pseudoephedrine, and anhydrous ammonia. Tr. p. 593, 597,
602, 609, 612; Exs. 2-3, 14-32, 35-36, 44, 48-50; Exs. 34-50. An Indiana State
Police chemist testified at trial that such items were indicative of a
methamphetamine laboratory. Tr. p. 610.
Convictions for manufacturing methamphetamine and possession of
methamphetamine may be sustained, specifically with the finished product
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supporting the possession conviction and the unfinished product supporting the
manufacturing conviction. Storey v. State, 875 N.E.2d 243, 248-50 (Ind. Ct. App.
2007). It has also been established that the evidence need only show that the
manufacturing process has begun to sustain a conviction for manufacturing
methamphetamine. Dawson v. State, 786 N.E.2d 742, 747-48h (Ind. Ct. App.
2003).
In light of our discussion above, the jury could have reasonably concluded
that Weddle was in possession of methamphetamine and was in the process of
manufacturing an additional amount of the drug. See Iddings v. State, 772 N.E.2d
1006, 1017 (Ind. Ct. App. 2002) (finding no double jeopardy violation for
convictions of possession of precursors and manufacturing methamphetamine
when completed methamphetamine was found in addition to various chemical
precursors to manufacture additional methamphetamine). As a result, we reject
Weddle’s argument that convicting him of both manufacturing methamphetamine
and possession of methamphetamine violated the prohibition against double
jeopardy.
In conclusion, we grant Weddle’s petition for rehearing for the purpose of
addressing his double jeopardy claim. In all other respects, we reaffirm our
original opinion.
MAY, J., and BRADFORD, J., concur.
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