MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                    FILED
this Memorandum Decision shall not be                                           Apr 02 2019, 9:38 am

regarded as precedent or cited before any                                           CLERK
                                                                                Indiana Supreme Court
court except for the purpose of establishing                                       Court of Appeals
                                                                                     and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Talisha Griffin                                           Curtis T. Hill, Jr.
Marion County Public Defender Agency                      Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                                     Samuel J. Dayton
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Gregory Wilkerson,                                        April 2, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2650
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Clark Rogers,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          49G25-1808-F6-25994



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2650 | April 2, 2019                           Page 1 of 5
                                           Case Summary
[1]   In August of 2018, a vehicle being driven by Gregory Wilkerson was stopped by

      police for failure to signal and an invalid license plate. After verifying that the

      vehicle was stolen, officers conducted an inventory search and discovered a

      black case on the driver’s-side of the vehicle containing a syringe loaded with

      methamphetamine, baggies, and a scale. Wilkerson was charged with Level 6

      felony unlawful possession of a syringe and Level 6 felony possession of a

      narcotic drug. In September of 2018, Wilkerson was tried to the bench, found

      guilty as charged, and sentenced to 730 days of incarceration for each

      conviction, to be served concurrently. Wilkerson contends that his convictions

      violate the Double Jeopardy Clause of the Indiana Constitution. Because we

      disagree, we affirm.



                            Facts and Procedural History
[2]   On August 6, 2018, Indianapolis Metropolitan Police Officer Michael Herrera

      initiated a traffic stop on a vehicle being driven by Wilkerson for failing to

      signal and an invalid license plate. Upon confirming that the vehicle was stolen,

      Officer Herrera removed Wilkerson and a passenger from the vehicle. While

      conducting an inventory search, Officer Herrera discovered a black case on the

      driver’s-side floorboard containing a syringe loaded with a brown liquid,

      baggies, and a scale. The brown liquid was later confirmed to be a

      methamphetamine solution.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2650 | April 2, 2019   Page 2 of 5
[3]   On August 8, 2018, the State charged Wilkerson with Level 6 felony unlawful

      possession of a syringe and Level 6 felony possession of a narcotic drug. On

      September 20, 2018, a bench trial was held after which the trial court found

      Wilkerson guilty as charged. On October 4, 2018, the trial court sentenced

      Wilkerson on each conviction to 730 days of incarceration, with 180 days to be

      served in the Indiana Department of Correction and 545 days to be served on

      work release, with each sentence to be served concurrently.



                                 Discussion and Decision
[4]   Wilkerson contends that his convictions violate the Double Jeopardy Clause of

      the Indiana Constitution, specifically pursuant to the actual-evidence test.


              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 v. State, 717 N.E.2d 32 (Ind. 1999), 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. 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. 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.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2650 | April 2, 2019   Page 3 of 5
      Frazier v. State, 988 N.E.2d 1257, 1262 (Ind. Ct. App. 2013) (internal citations

      and quotations omitted). Whether convictions violate double jeopardy is a

      question of law which we review de novo. Vermillion v. State, 978 N.E.2d 459,

      464 (Ind. Ct. App. 2012).


[5]   Wilkerson was convicted of Level 6 felony unlawful possession of a syringe and

      Level 6 felony possession of a narcotic drug. To convict Wilkerson of unlawful

      possession of a syringe, the State was required to prove that Wilkerson

      possessed with intent to violate the Indiana Legend Drug Act, a hypodermic

      syringe or needle or an instrument adapted for the use of a controlled substance

      or legend drug by injection in a human being. Ind. Code § 16-42-19-18. To

      convict Wilkerson of possession of a narcotic drug, the State was required to

      prove that Wilkerson, without a valid prescription or order of a practitioner

      acting in the course of the practitioner’s professional practice, knowingly or

      intentionally possessed methamphetamine (pure or adulterated). Ind. Code §

      35-48-4-6(a).


[6]   We conclude that there is not a reasonable possibility that the trial court used

      the same evidentiary facts to convict Wilkerson of both offenses. Wilkerson’s

      possession-of-a-narcotic-drug conviction was established by the

      methamphetamine itself, which was found next to his seat in the vehicle.

      Wilkerson specifically argues that his convictions violate double jeopardy

      because the trial court used the same methamphetamine-loaded syringe to

      convict him of both crimes. However, his unlawful-possession-of-a-syringe

      conviction was not established solely by the fact that the syringe contained

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2650 | April 2, 2019   Page 4 of 5
      methamphetamine but in conjunction with the facts that it was a loaded syringe

      commingled with baggies and a scale, which Officer Herrera knew “through

      training and experience is called a kit that drug users often carry.” Tr. Vol. II p.

      10. Wilkerson has failed to establish that his convictions violate the Double

      Jeopardy Clause of the Indiana Constitution.


[7]   The judgment of the trial court is affirmed.


      Crone, J., and Tavitas, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2650 | April 2, 2019   Page 5 of 5
