FOR PUBLICATION
                                                                   Dec 09 2014, 8:44 am




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

BRUCE W. GRAHAM                                   GREGORY F. ZOELLER
Graham Law Firm P.C.                              Attorney General of Indiana
Lafayette, Indiana
                                                  KARL M. SCHARNBERG
                                                  Deputy Attorney General
                                                  Indianapolis Indiana



                             IN THE
                   COURT OF APPEALS OF INDIANA

STUART BOOKWALTER,                           )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )   No. 79A04-1402-CR-69
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )


                   APPEAL FROM THE TIPPECANOE CIRCUIT COURT
                         The Honorable Donald L. Daniel, Judge
                             Cause No. 79C01-1301-FA-2


                                  December 9, 2014

                             OPINION- FOR PUBLICATION

BAILEY, Judge
                                             Case Summary

           Stuart Bookwalter (“Bookwalter”) was convicted after a jury trial of Dealing in a

Narcotic Drug, as a Class A felony;1 Possession of a Narcotic Drug, as a Class C felony;2

Possession of a Syringe, as a Class D felony;3 and Possession of Paraphernalia, as a Class A

misdemeanor.4 Bookwalter was also adjudicated to be a habitual substance offender.5 He

now appeals.

           We affirm in part, reverse in part, and remand.6

                                                    Issues

           Bookwalter presents several issues for our review, which we reorder and restate as:

             I.    Whether there was sufficient evidence to support Bookwalter’s
                   conviction for Possession of a Syringe;

            II.    Whether there was sufficient evidence to support Bookwalter’s
                   conviction for Dealing in a Narcotic Drug; and

           III.    Whether Bookwalter’s convictions for Dealing in a Narcotic Drug and
                   Possession of a Narcotic Drug were barred on double jeopardy grounds.




1
 Ind. Code § 35-48-4-1(b)(1) (West 2013). In light of the significant revisions to the Indiana Code effective
July 1, 2014, all statutory citations to substantive criminal provisions refer to the versions of these statutes
effective at the time of the trial-level proceedings.

2
    I.C. § 35-48-4-6(b)(1)(A).

3
    I.C. § 16-42-19-18.

4
    I.C. § 35-48-4-8.3(a)(1).

5
    I.C. § 35-50-2-10(b).

6
 We heard oral argument on this matter on November 17, 2014. We thank both parties for their able
advocacy.

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                                Facts and Procedural History

       On January 17, 2013, acting on information obtained from a confidential informant,

Lafayette Police Department officers were monitoring Bookwalter’s travel from the Chicago,

Illinois area. On the afternoon of that day, Bookwalter was observed by police traveling back

from Illinois into Lafayette.

       Police followed Bookwalter’s vehicle to an AOK Campground in Lafayette. Troy

Cudworth (“Cudworth”), a friend of Bookwalter’s, lived at the campground with an uncle.

Bookwalter had sent a text message to Cudworth offering Cudworth some heroin. Cudworth

agreed and met Bookwalter in the parking lot.

       Bookwalter and Cudworth were preparing to inject some of the heroin Bookwalter had

purchased when police approached the vehicle. An officer saw Bookwalter’s left hand

reaching down and arrested the two men. A search of Bookwalter’s vehicle recovered a total

of 18 grams of heroin and several syringes. A search of Bookwalter’s person recovered,

from his left pocket, an eyeglasses case that contained various items used to consume heroin.

       On January 24, 2013, the State charged Bookwalter with Dealing in a Narcotic Drug,

Possession of a Narcotic Drug, Possession of a Syringe, and Possession of Paraphernalia.

The State also filed an information alleging Bookwalter to be a habitual substance offender.

       A jury trial was conducted on November 5 and 6, 2013. At the conclusion of the trial,

the jury found Bookwalter guilty of Dealing in a Narcotic Drug, Possession of a Narcotic

Drug, Possession of a Syringe, and Possession of Paraphernalia, as charged. Bookwalter

waived trial and admitted his status as a habitual substance offender.


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       On February 3, 2014, the trial court entered judgments of conviction and a finding that

Bookwalter was a habitual substance offender. The court sentenced Bookwalter to an

aggregate term of twenty-three years imprisonment.

       This appeal ensued.

                                 Discussion and Decision

                                  Possession of a Syringe

       Bookwalter’s first contention on appeal is that there was insufficient evidence to

support his conviction for Possession of a Syringe, because the evidence showed he intended

to inject heroin as opposed to a legend drug.

       Our standard of review in challenges to the sufficiency of evidence is well settled. We

consider only the probative evidence and reasonable inferences supporting the verdict. Drane

v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of witnesses or

reweigh evidence. Id. We will affirm the conviction unless “no reasonable fact-finder could

find the elements of the crime proven beyond a reasonable doubt.” Id. (quoting Jenkins v.

State, 726 N.E.2d 268, 270 (Ind. 2000)). “The evidence is sufficient if an inference may

reasonably be drawn from it to support the verdict.” Id. at 147 (quoting Pickens v. State, 751

N.E.2d 331, 334 (Ind. Ct. App. 2001)).

       To convict Bookwalter of Possession of a Syringe, as charged, the State was required

to prove beyond a reasonable doubt that Bookwalter possessed, with intent to violate Chapter

16-42-19 of the Indiana Code (“the Legend Drug Act” or “the Act”), a hypodermic syringe or




                                                4
needle or an instrument adapted for the use of a legend drug by injection in a human being.

See I.C. § 16-42-19-18.

       Bookwalter’s challenge to his conviction centers on whether there was sufficient

evidence that he possessed the syringes with intent to violate the terms of the Act.

Bookwalter concedes that he possessed syringes with intent to inject himself with heroin.

But Bookwalter contends that because heroin is a scheduled narcotic but not a legend drug as

defined by the Indiana Code, he did not violate the Act, and his conviction for Possession of

a Syringe must be reversed.

       Thus, Bookwalter’s challenge to his conviction raises a question of statutory

construction.

       The primary rule in statutory construction is to ascertain and give effect to the
       intent of the legislature. Bartlett v. State, 711 N.E.2d 497, 501 (Ind. 1999)
       (citing Smith v. State, 675 N.E.2d 693, 696 (Ind. 1996)) (citing in turn
       Freeman v. State, 658 N.E.2d 68, 70 (Ind. 1995)). “The best evidence of
       legislative intent is the language of the statute itself, and all words must be
       given their plain and ordinary meaning unless otherwise indicated by statute.”
       Id.

Chambliss v. State, 746 N.E.2d 73, 77 (Ind. 2001).

       In interpreting criminal statutes, when appropriate we apply the rule of lenity. Under

the rule of lenity, “penal statutes [must] be construed strictly against the State and any

ambiguities resolved in favor of the accused.” Meredith v. State, 906 N.E.2d 867, 872 (Ind.

2009) (citations and quotations omitted). However, “statutes are not to be overly narrowed

so as to exclude cases they fairly cover.” Id.




                                              5
        Indiana Code section 16-42-19-18, under which Bookwalter was tried and convicted,

provides: “A person may not possess or have under control with intent to violate this chapter

[the Legend Drug Act] a hypodermic syringe or needle or an instrument adapted for the use

of a legend drug by injection in a human being.” This provision is part of the Indiana Legend

Drug Act, I.C. § 16-42-19-1, et seq., which was enacted to supplement the provisions of

existing legislation related to the regulation of food and drugs in Indiana. I.C. § 16-42-19-1.

The Act criminalizes the sale or possession of certain substances—legend drugs,7 insulin, and

anabolic steroids—without a prescription. The question now before us distills to whether

possession of a syringe without a valid prescription for a legend drug, insulin, or anabolic

steroids, with intent to inject a non-legend drug, is sufficient to violate Section 16-42-19-18

of the Act. Bookwalter contends that it is not.

        The requisite intent for the State to obtain a conviction under Section 16-42-19-18 is

expressed not as intent to inject any drug, or even to inject an unprescribed legend drug, but

as intent to violate the Act itself. We must, then, construe the statute to determine what

satisfies the intent element of Section 16-42-19-18.

        Our examination of the text of the Act does not clarify the nature of the intent

requirement in Section 16-42-19-18. Section 16-42-19-13 of the Act provides that “A person

may not possess or use a legend drug or a precursor unless the person obtains the drug … on

the prescription or drug order of a practitioner” or under certain statutory exceptions. Section

16-42-19-17 criminalizes possession or having under control “with intent to violate the

7
 A legend drug is a drug “subject to 21 U.S.C. 353(b)(1)” or listed in certain documents published by the
United States Department of Health and Human Services. I.C. § 16-18-2-199.

                                                    6
chapter an instrument or contrivance designed or generally used in smoking a legend drug.”

Other sections prohibit making false or fraudulent representations to obtain legend drugs, I.C.

§ 16-42-19-16, selling insulin to individuals without prescriptions, I.C. § 16-42-19-29, and

supplying anabolic steroids for athletic purposes. I.C. § 16-42-19-25(a). As we noted above,

the expressed purpose of the Legend Drug Act is to supplement Indiana’s statutory scheme

related to food, drug, and cosmetics safety, and most provisions of the Act pertain to the use

of legend drugs, insulin, and anabolic steroids. Without reference to the use of a legend drug,

insulin, or anabolic steroids, we cannot discern what it means to intend to violate the Legend

Drug Act.

       Recognizing this ambiguity, the State makes the creative argument that “intent to

violate this chapter” means an intent to use a syringe in any manner not consistent with the

Legend Drug Act. That is to say, the State contends that intent to violate the Legend Drug

Act means an intent to act contrary to the Legend Drug Act. The rule of lenity does not, we

think, favor such an expansive interpretation of the statute.

       The State observed at oral argument that a predecessor statute, the Dangerous Drug

Act, criminalized possession of a syringe with intent to violate that act, under the definitions

of which heroin was classified as a dangerous drug. See I.C. §§ 16-6-8-2(j) & 16-6-8-3(h)

(Burns 1973). That law was subsequently revised as the Legend Drug Act, and the offense of

possession of a syringe was amended to pertain to intent to violate the Legend Drug Act

under its changed terms, which did not include heroin as a legend drug. I.C. §§ 16-6-8-2(j) &

16-6-8-3(h) (Burns 1973 Supp. 1982). The State’s reference to this change proves too much:


                                               7
the legislature’s revision of the Legend Drug Act to exclude from its scope heroin weighs in

favor of concluding that the Act is at best ambiguous as to whether possession of a syringe

with intent to inject heroin is a criminal act under Section 16-42-19-18.

        Given the Act’s ambiguity as to whether intent to inject any substance that is not also

a legend drug, insulin, or anabolic steroid is within the scope of Section 16-42-19-18’s intent

element, we must construe the statute in favor of Bookwalter to conclude that intent to inject

heroin is not fairly covered by the Legend Drug Act’s definition of the offense of possession

of a syringe.

       Also in support of its position, the State in its brief directs our attention to Cherry v.

State, 971 N.E.2d 726 (Ind. Ct. App. 2012), trans. denied, for the proposition that this Court

has already interpreted Section 16-42-19-18 as including within its scope actions like

Bookwalter’s. The State further contends that our legislature’s subsequent revision of the

criminal statutes, which significantly reclassified drug offenses but did not address the

holding in Cherry, amounts to legislative acquiescence to the Cherry Court’s holding. Yet

the Cherry Court does not appear to have been squarely confronted with the question of

whether the offense of possession of a syringe, under which Cherry was convicted, was

vague as to Cherry. Rather, the Cherry Court reached only the matter of sufficiency of the

evidence without regard to the question of statutory construction with which Bookwalter

frames his appeal. We conclude, then, that Cherry is inapposite because it did not undertake

an analysis of the statute on vagueness grounds, and as a result there was no legislative

acquiescence to the Cherry Court’s interpretation of Section 16-42-19-18.


                                               8
       Finally, the State contends that at trial Bookwalter effectively conceded that he had

committed the offense of Possession of a Syringe as defined under Section 16-42-19-18. Our

review of the record does not reveal statements that comport with the State’s assertion.

Bookwalter admitted at trial that he possessed syringes with which he intended to inject

heroin. He did not, however, admit any intent to violate the provisions of the Legend Drug

Act, as required by the statute, and there is no evidence that indicates anything other than that

Bookwalter intended to use the syringes to inject heroin. We thus cannot accept the State’s

argument that Bookwalter admitted to having committed the offense of Possession of a

Syringe—though his admissions clearly support his conviction for the separately-charged

offense of Possession of Paraphernalia.

       Having concluded that Section 16-42-19-18 does not fairly encompass within its

language Bookwalter’s intended use of the syringe to inject heroin, we reverse Bookwalter’s

conviction for that offense.

                                 Dealing in a Narcotic Drug

       We turn next to Bookwalter’s contention that there was insufficient evidence of his

intent to deliver heroin, and thus his conviction for Dealing in a Narcotic Drug should be

reversed.

       To convict Bookwalter of Dealing in a Narcotic Drug, as a Class A felony, as charged,

the State was required to prove beyond a reasonable doubt that Bookwalter knowingly or

intentionally possessed, with intent to deliver, heroin, pure or unadulterated, in an amount of

three grams or more. See I.C. §§ 35-48-4-1(a)(2) & (b)(1) (West 2013). Bookwalter


                                               9
contends that the State failed to carry its burden of proof because it did not “show that

Bookwalter intended to deliver three or more grams of heroin.” (Appellant’s Br. at 14.)

       We disagree. The State was required to prove that Bookwalter possessed heroin with

intent to deliver it. I.C. § 35-48-4-1(a). Enhancement of the offense to a Class A felony

required that “the amount of the drug involved” weighed three or more grams. I.C. § 35-48-

4-1(b)(1). The enhancement was specified in a separate subsection of the statute, and does

not by its terms require proof of intent to deliver a specific weight of drugs. Thus, the statute

did not require that the State prove that Bookwalter intended to deliver a certain minimum

amount of the drug to others. Rather, it required that Bookwalter possessed the drug, did so

with intent to deliver some portion of the amount, and that the total amount possessed

(“involved” in the offense) was greater than three grams.

       Bookwalter concedes that he possessed heroin in an amount greater than three grams.

He further concedes that he delivered some amount of heroin to Cudworth. This alone is

sufficient to establish that Bookwalter possessed more than 3 grams of heroin with the intent

to deliver some amount of the drug. Moreover, the total amount of heroin possessed—nearly

eighteen grams—in comparison to Cudworth’s testimony that the average dose size was

approximately .10 grams, indicates that Bookwalter possessed enough heroin to deliver as

many as 180 doses. (Tr. at 69.) Taken together with the reasonable inferences that favor the

verdict, we conclude there was sufficient evidence from which the jury could convict

Bookwalter of Dealing in a Narcotic Drug, as a Class A felony.




                                               10
                                       Double Jeopardy

       We turn now to Bookwalter’s final contention on appeal, that his conviction for both

Dealing in a Narcotic Drug and Possession of a Narcotic Drug violates double jeopardy

principles. The State, for its part, agrees.

       The Indiana Constitution provides in part, “No person shall be put in jeopardy twice

for the same offense.” Ind. Const. art. I, § 14. Two offenses are the “same offense” and

violate the double jeopardy clause of the Indiana Constitution if, with respect either to the

statutory elements of the challenged crimes or the actual evidence used to convict the

defendant of the offenses, the essential elements of one challenged offense also establish the

essential elements of another challenged offense. Spivey v. State, 761 N.E.2d 831, 832 (Ind.

2002). The latter of these forms of double jeopardy is termed the “actual evidence test.” Id.

“Possession of a narcotic drug is an inherently included lesser offense of dealing that drug,

and a defendant generally may not be convicted and sentenced separately for both dealing

and possession of the same drug,” unless “the dealing and possession charges are specifically

based only on the respective quantities.” Quick v. State, 660 N.E.2d 598, 601 (Ind. Ct. App.

1996) (citing, inter alia, Mason v. State, 532 N.E.2d 1169, 1172 (Ind. 1989), cert. denied).

       Here, Bookwalter was convicted of both Dealing in a Narcotic Drug and Possession of

a Narcotic Drug. Both convictions arise from the same evidence: that on January 17, 2013,

Bookwalter knowingly or intentionally possessed heroin. The charging information does not

distinguish quantities as required by Quick. Accordingly, we conclude that Bookwalter’s

convictions for both Dealing and Possession of a Narcotic Drug constitute double jeopardy.


                                               11
The trial court need not undertake a full sentencing reevaluation, however, as vacation of the

lesser included offense in this case will leave in place the trial court’s aggregate twenty-three

year sentence. See Richardson v. State, 717 N.E.2d 32, 54-55 (Ind. 1999).

       Having already affirmed the judgment of the court as to Dealing in a Narcotic Drug,

we remand the case with instructions to the trial court to vacate Bookwalter’s conviction for

the lesser included offense of Possession of a Narcotic Drug.

                                          Conclusion

       The Legend Drug Act provision under which Bookwalter was convicted is vague as to

Bookwalter’s conduct, and we accordingly reverse his conviction for Possession of a Syringe.

There was sufficient evidence to sustain Bookwalter’s conviction for Dealing in a Narcotic

Drug, as a Class A felony. Bookwalter’s convictions for Dealing in a Narcotic Drug and

Possession of a Narcotic Drug violate double jeopardy principles, and we accordingly reverse

the trial court and remand with instructions to vacate the conviction of Possession of a

Narcotic Drug.

       Affirmed in part, reversed in part, and remanded.

NAJAM, J., and PYLE, J., concur.




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