Steven W. Rowland v. State of Indiana

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
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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
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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).
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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
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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.
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[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
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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
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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).
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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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