                                                                    Oct 18 2013, 5:43 am



FOR PUBLICATION


ATTORNEYS FOR APPELLANT:                  ATTORNEYS FOR APPELLEE:

RUSSELL A. JOHNSON                        GREGORY F. ZOELLER
HEATH Y. JOHNSON                          Attorney General of Indiana
SUZY ST. JOHN
Johnson, Gray & MacAbee                   BRIAN L. REITZ
Franklin, Indiana                         Deputy Attorney General
                                          Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

FLOYD WEDDLE,                             )
                                          )
      Appellant-Defendant,                )
                                          )
             vs.                          )       No. 73A01-1209-CR-452
                                          )
STATE OF INDIANA,                         )
                                          )
      Appellee-Plaintiff.                 )


                APPEAL FROM THE SHELBY SUPERIOR COURT NO. 1
                        The Honorable Jack A. Tandy, Judge
                           Cause No. 73D01-1101-FA-2



                               October 18, 2013

                   OPINION ON REHEARING—FOR PUBLICATION

BAKER, Judge
          In our original opinion reported as Weddle v. State, 989 N.E.2d 371 (Ind. Ct. App.

2013), we addressed Weddle’s claims regarding the propriety of the police officers’

protective sweep and subsequent search of his residence that led to the discovery of drugs

and paraphernalia. We determined that the protective sweep of the residence was proper

and the items seized during the subsequent search were properly admitted into evidence.

Id. at 377-78. As a result, Weddle was convicted of

          Count I—Manufacturing Methamphetamine, a class A felony
          Count II—Possession of Methamphetamine, a class B felony
          Count III—Possession of Drug Lab Precursors, a class D felony
          Count IV—Maintaining a Common Nuisance, a class D felony
          Count V—Possession of Marijuana a class A misdemeanor
          Count VI—Possession of Marijuana, a class A misdemeanor

Id. at 375.1 The trial court sentenced Weddle to concurrent sentences on all counts that

resulted in an aggregate term of thirty-five years. Id.

          We now grant Weddle’s petition for rehearing for the limited purpose of

addressing an omitted issue regarding his convictions for both manufacturing

methamphetamine and possession of methamphetamine.                    Weddle maintains that

convicting him of both offenses violated the Indiana Constitution’s prohibition against

double jeopardy.

          In support of his claim, Weddle argues that

                  The charging information for Counts 1 and 2 does not specify different
                  modes of conduct. App. 24. Additionally, it appears the only evidence to
                  support the possession charge came from Jenna Crawford, who testified the
                  Gatorade cooler tested positive for methamphetamine, and the presence of

1
    The trial court subsequently vacated the conviction in Count V.
                                                      2
       Ephedrine/Pseudoephedrine. Tr. 646; State’s Exh. 4. Moreover, during
       closing argument, the prosecutor pointed to the same evidence to support
       counts 1 and 2. Id. at 834-35.
                                    ** *
       The prosecutor then moved on to discuss the possession of precursors
       charge without specifically referencing Count 2. Id. at 836. The court’s
       instructions do not shed light on separate theories of conduct to support
       Counts 1 and 2, and neither does the charging information. App. 24.
                                    ***
       Therefore, the State advanced the same evidence to support both charges,
       and there is a reasonable possibility the jury relied on the same evidence for
       both.

Appellant’s Br. p. 25-26.

       We initially observe that determining whether multiple convictions violate

the prohibition against double jeopardy is a question of law that this Court reviews

de novo. Sloan v. State, 947 N.E.2d 917, 920 (Ind. 2011). One way by which

punishment for two or more offenses is punishment for the “same offense” in

violation of Article 1, Section 14 of the Indiana Constitution is where the actual

evidence used to convict one challenged offense also establishes the elements of

another challenged offense. Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999).

       To show a violation under the actual evidence test, Weddle “must

demonstrate 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 elements of a second challenged offense.”         Id. at 53.    The

possibility must be reasonable, not speculative or remote.       Lee v. State, 892

N.E.2d 1231, 1236 (Ind. 2008).        Additionally, as long as “each conviction


                                      3
require[s] proof of at least one unique evidentiary fact,” no violation of the actual

evidence test occurs. Bald v. State, 766 N.E.2d 1170, 1172 (Ind. 2002). As our

Supreme Court observed in Spivey v. State:

       [U]nder the Richardson actual evidence test, the Indiana Double Jeopardy
       Clause is not violated when the evidentiary facts establishing the essential
       elements of one offense also establish one or even several, but not all, of
       the essential elements of a second offense.

761 N.E.2d 831, 833 (Ind. 2002); see also Redman v. State, 743 N.E.2d 263, 267

(Ind. 2001) (stating that under Richardson it is “necessary to show a possibility

that the same evidentiary facts were used to prove the body of essential elements

that comprise each” of the two offenses).

       In this case Weddle was found in possession of methamphetamine. Tr. p.

643, 645-46; Exs. 2-4. The police also found numerous accoutrements in the

residence that are used to manufacture additional methamphetamine. These items

included a Gatorade cooler containing a white plastic jar with coffee filters and an

off-white substance, several plastic funnels, a one gallon bottle of Crown Toluol,

an organic solvent, pseudoephedrine, and anhydrous ammonia. Tr. p. 593, 597,

602, 609, 612; Exs. 2-3, 14-32, 35-36, 44, 48-50; Exs. 34-50. An Indiana State

Police chemist testified at trial that such items were indicative of a

methamphetamine laboratory. Tr. p. 610.

       Convictions for manufacturing methamphetamine and possession of

methamphetamine may be sustained, specifically with the finished product


                                      4
supporting the possession conviction and the unfinished product supporting the

manufacturing conviction. Storey v. State, 875 N.E.2d 243, 248-50 (Ind. Ct. App.

2007). It has also been established that the evidence need only show that the

manufacturing process has begun to sustain a conviction for manufacturing

methamphetamine. Dawson v. State, 786 N.E.2d 742, 747-48h (Ind. Ct. App.

2003).

         In light of our discussion above, the jury could have reasonably concluded

that Weddle was in possession of methamphetamine and was in the process of

manufacturing an additional amount of the drug. See Iddings v. State, 772 N.E.2d

1006, 1017 (Ind. Ct. App. 2002) (finding no double jeopardy violation for

convictions of possession of precursors and manufacturing methamphetamine

when completed methamphetamine was found in addition to various chemical

precursors to manufacture additional methamphetamine). As a result, we reject

Weddle’s argument that convicting him of both manufacturing methamphetamine

and possession of methamphetamine violated the prohibition against double

jeopardy.

         In conclusion, we grant Weddle’s petition for rehearing for the purpose of

addressing his double jeopardy claim. In all other respects, we reaffirm our

original opinion.

MAY, J., and BRADFORD, J., concur.



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