NUSEKABEL v. STATE (2023)

MEMORANDUM DECISION

Statement of the Case

[1] Nathaniel Nusekabel was found guilty and sentenced for possession of methamphetamine and dealing in methamphetamine. Nusekabel appeals his possession conviction claiming double jeopardy protection.

[2] We reverse the trial court's conviction for possession of methamphetamine.

Facts and Procedural History

[3] On July 18, 2020, police found Nusekabel in a hotel room after responding to a complaint about drug activity. In conducting a search, police found methamphetamine, digital scales, and drug paraphernalia. On July 20, 2020, the State filed charges against Nusekabel, including counts for possession of methamphetamine and dealing in methamphetamine.

[4] On October 11, 2022, after a trial, Nusekabel was found guilty of both charges. Later, he was sentenced on both counts. Nusekabel appeals.

Discussion and Decision

[5] This appeal presents “questions of law, both statutory and constitutional, which we review de novo.” Wadle v. State, 151 N.E.3d 227, 237 (Ind. 2020) (citing A.M. v. State, 134 N.E.3d 361, 364 (Ind. 2019)).

[6] The Indiana Constitution protects against double jeopardy by providing that “[n]o person shall be put in jeopardy twice for the same offense.” Ind. Const. art. 1, § 14. “The protective scope of the Double Jeopardy Clause turns on the meaning of ‘same offense’ ․” Wadle, 151 N.E. 3d at 238 (quoting Whalen v. United States, 445 U.S. 684, 700 (1980)).

[7] “Indiana has long recognized the common-law principle that a ‘lesser included’ offense is the ‘same’ as its greater (encompassing) offense.” Wadle, 151 N.E. 3d at 246 (citing Kokenes v. State, 13 N.E.2d 524 (Ind. 1938)). An included offense is as an offense which:

(1) is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged;

(2) consists of an attempt to commit the offense charged or an offense otherwise included therein; or

(3) differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission.

Ind. Code § 35-31.5-2-168. When a defendant is found guilty of an offense and an included offense, “judgment and sentence may not be entered against the defendant for the included offense.” Id. § 35-38-1-6. This principle prevents courts from applying multiple punishments for the same act where there is no statutory authority to do so. Wadle, 151 N.E. 3d at 246–47.

[8] In Wadle v. State, the Indiana Supreme Court set forth the following test for double jeopardy analysis:

[W]hen multiple convictions for a single act or transaction implicate two or more statutes, we first look to the statutes themselves. If either statute clearly permits multiple punishment, whether expressly or by unmistakable implication, the court's inquiry comes to an end and there is no violation of substantive double jeopardy. But if the statutory language is not clear, then a court must apply our included-offense statutes to determine whether the charged offenses are the same. If neither offense is included in the other (either inherently or as charged), there is no violation of double jeopardy. But if one offense is included in the other (either inherently or as charged), then the court must examine the facts underlying those offenses, as presented in the charging instrument and as adduced at trial. If, based on these facts, the defendant's actions were so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction, then the prosecutor may charge the offenses as alternative sanctions only. But if the defendant's actions prove otherwise, a court may convict on each charged offense.

151 N.E.3d at 253 (internal citations and quotation marks omitted).

[9] In Phillips v. State, this Court recently applied the Wadle test to a defendant convicted of both possession of and dealing in methamphetamine. See 174 N.E.3d 635 (Ind. Ct. App. 2021). We determined the trial court violated double jeopardy. Id. at 647.

[10] Indiana Code section 35-48-4-6.1 defines possession of methamphetamine, and Indiana Code section 35-48-4-1.1 defines dealing in methamphetamine. “[N]either statute clearly permits multiple punishment, either expressly or by unmistakable implication ․” Phillips, 174 N.E.3d at 645. Further, “[d]ealing [in] methamphetamine and possession of methamphetamine are included offenses” because the material elements of possession are proven by the material elements of the dealing charge. Id. at 646. Lastly, the offenses were determined to be the same transaction because the dealing and possession occurred in the same location, within a short timeframe, and were done in furtherance of the defendant's use and sale of the drug. Id. at 647.

[11] Here, the trial court erred in permitting multiple punishments for the same offense. Nusekabel was sentenced for possession of and dealing in methamphetamine. Application of the Wadle test shows the trial court violated Nusekabel's double jeopardy rights. The State agrees with this conclusion. Appellee's Br. at 7–8.

Conclusion

[12] We reverse the trial court's possession conviction and remand with instructions to vacate.

Felix, Judge.

Crone, J., and Brown, J., concur.