MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any
court except for the purpose of establishing                           Nov 13 2019, 9:26 am

the defense of res judicata, collateral                                     CLERK
                                                                        Indiana Supreme Court
estoppel, or the law of the case.                                          Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ellen M. O’Connor                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Josiah Swinney
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Curtis Martin,                                          November 13, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-718
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Jennifer Harrison,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        49G20-1808-F2-29166



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-718 | November 13, 2019                Page 1 of 5
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, Curtis Martin (Martin), appeals his conviction for

      possession of methamphetamine, a Level 3 felony, Ind. Code §§ 35-48-4-6.1(a),

      (d)(1).


[2]   We reverse and remand with instructions.


                                                   ISSUE
[3]   Martin presents one issue on appeal, which we restate as: Whether his

      conviction for possession of methamphetamine must be vacated because it was

      an included offense of his dealing in methamphetamine conviction.


                      FACTS AND PROCEDURAL HISTORY
[4]   After making two controlled buys of methamphetamine from Martin at his

      home located in the 4800 block of Rixon Avenue in Indianapolis, Indiana,

      officers of the Indianapolis Metropolitan Police Department obtained a search

      warrant for Martin’s home. The search warrant was executed on August 29,

      2018, and netted over thirty grams of methamphetamine, less than one gram of

      heroin, multiple firearms, scales, $868 in cash, surveillance cameras, and body

      armor.


[5]   On August 31, 2018, the State filed an Information, charging Martin with

      dealing in methamphetamine, a Level 2 felony; possession of

      methamphetamine, a Level 3 felony; possession of a narcotic drug, a Level 5

      felony; unlawful possession of a firearm by a serious violent felon, a Level 4

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-718 | November 13, 2019   Page 2 of 5
      felony; and escape, a Level 6 felony. On February 3, 2019, the State filed an

      additional Information, alleging that Martin was an habitual offender.


[6]   On February 4, 2019, Martin’s bifurcated jury trial began on all charges apart

      from the escape charge, which the State later dismissed. After a two-day trial,

      the jury found Martin guilty as charged. In a separate proceeding, Martin

      pleaded guilty to being a serious violent felon and an habitual offender. On

      March 1, 2019, the trial court entered judgment of conviction on all of the

      charges and sentenced Martin to twenty years for dealing in methamphetamine,

      enhanced by six years for being an habitual offender; ten years for possession of

      methamphetamine; four years for possession of a narcotic drug; and seven years

      for unlawful possession of a firearm by a serious violent felon. All of Martin’s

      sentences were to be served concurrently, for an aggregate sentence of twenty-

      six years.


[7]   Martin now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
[8]   Martin argues that his convictions and sentencing for dealing in

      methamphetamine and possession of methamphetamine violate statutory

      double jeopardy prohibitions. Indiana Code section 35-38-1-6 provides that

      where a defendant is “charged with an offense and an included offense in

      separate counts[,] and the defendant is found guilty of both counts[,] judgment

      and sentence may not be entered against the defendant for the included

      offense.” An offense is an included offense if it “is established by proof of the

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-718 | November 13, 2019   Page 3 of 5
      same material elements or less than all the material elements required to

      establish the commission of the offense charged[.]” I.C. § 35-31.5-2-168(1).

      Possession of methamphetamine is a lesser-included offense of dealing in

      methamphetamine if it is based upon possession of the same

      methamphetamine. Micheau v. State, 893 N.E.2d 1053, 1066-67 (Ind. Ct. App.

      2008), trans. denied.


[9]   The State charged Martin with dealing in methamphetamine as follows:


              On or about August 29, 2018, [Martin] did knowingly or
              intentionally possess with the intent to deliver
              methamphetamine, pure or adulterated, said methamphetamine
              having a weight of at least ten (10) grams[.]


      (Appellant’s App. p. 21). The State charged Martin with possession of

      methamphetamine as follows:


              On or about August 29, 2018, [Martin] did knowingly or
              intentionally possess methamphetamine, pure or adulterated the
              said methamphetamine weighing at least 28 grams[.]


      (Appellant’s App. p. 21). On appeal, the State concedes that the “same

      methamphetamine supported each conviction because all the

      methamphetamine was found in the same area of the basement—30.1438

      grams of the 33.1341 grams of methamphetamine was all found in the same

      bag[.]” (Appellee’s Br. p. 6). As a result, the State acknowledges that the

      simple possession offense was an included offense of dealing in

      methamphetamine in this case.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-718 | November 13, 2019   Page 4 of 5
[10]   The trial court erred when it entered judgment on and sentenced Martin for the

       included offense of possession of methamphetamine. See I.C. § 35-38-1-6.

       Accordingly, we remand this case to the trial court with instructions to vacate

       Martin’s possession of methamphetamine conviction.


                                            CONCLUSION
[11]   Based on the foregoing, we conclude that the trial court erred in entering

       judgment of conviction and sentence on the included offense of possession of

       methamphetamine.


[12]   Reversed and remanded with instructions.


       Vaidik, C. J. and Bradford, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-718 | November 13, 2019   Page 5 of 5
