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
