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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowApplying a new test established this year by the Indiana Supreme Court to weigh claims of substantive double jeopardy, a retired justice authored an opinion Tuesday that found convictions of possession of marijuana and paraphernalia are not duplicative punishment for the same crime.
Senior Judge Robert Rucker wrote for the Court of Appeals panel that affirmed those convictions in Steven W. Rowland v. State of Indiana, 19A-CR-2761.
Steven Rowland was convicted in a Tippecanoe Superior Court bench trial of Level 6 felony possession of a narcotic drug, Class B misdemeanor possession of marijuana and Class C misdemeanor possession of paraphernalia. Police responding to a wellness check on Rowland found him behind the wheel of his car parked near the dumpster of a Lafayette apartment complex. He was arrested after officers found heroin in plain view and a search turned up marijuana, pipes and paraphernalia.
Rowland appealed the misdemeanor convictions on double jeopardy grounds, and Rucker noted the new double jeopardy test adopted this year in Wadle v. State, 19S-CR-340. There, justices overruled the actual evidence test of Richardson v. State, 717 N.E.2d 232 (Ind. 1999), in favor an analytical framework that applies statutory rules of construction.
Under the Wadle test, substantive double jeopardy is a two-part inquiry, Rucker noted: “First, a court must determine, under our included-offense statutes, whether one charged offense encompasses another charged offense. Second, a court must look at the underlying facts — as alleged in the information and as adduced at trial — to determine whether the charged offenses are the ‘same.’ If the facts show two separate and distinct crimes, there’s no violation of substantive double jeopardy, even if one offense is, by definition, ‘included’ in the other. But if the facts show only a single continuous crime, and one statutory offense is included in the other, then the presumption is that the legislation intends for alternative (rather than cumulative) sanctions.”
In Rowland’s case regarding the marijuana and paraphernalia convictions, “Each of these offenses is separate and distinct” and “(n)either is an element of the other” under the Wadle test, the panel held. But Rowland additionally invoked the “very same act” rule regarding these convictions, arguing, for example, that had only tobacco been in a pipe that formed the paraphernalia count, he could not have been charged, thus making possession of marijuana and possession of paraphernalia the very same act.
“In short Rowland’s position is that the marijuana found in one of the pipes established the instrument as paraphernalia and this was the same marijuana providing the bases for the marijuana possession charge,” Rucker wrote. But the panel rejected that argument, noting an officer who searched Rowland’s car testified he found “… some marijuana, paraphernalia, pipes and then a pill canister on his car keys that had two bags of heroin … .”
“(T)he notion that the presence of marijuana in the pipes was important in establishing the instruments as paraphernalia is pure speculation. Nothing in the record says anything about how the conclusion was reached that the pipes satisfied the definition of paraphernalia,” Rucker continued. “Indeed, their physical appearance and proximity to the heroin may very well have been factors in that regard. This point was not pursued at trial.
“Based on the record before us we conclude Rowland’s behavior of possessing marijuana was separate and distinct from his behavior of possessing paraphernalia. The very same act test ‘does not arise in situations where the subject behavior or harm is either separate from or more extensive than that necessary to constitute the element of the first crime,’” the panel concluded, citing Oeth v. State, 775 N.E.2d 696, 703 (Ind. Ct. App. 2002), trans. denied, in affirming the convictions.
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