Wade Turner Jackson, Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] In June 2023, and as amended throughout 2024, Wade Turner Jackson, Jr. was charged with eleven offenses. A jury found Jackson guilty of nine charges, and he later pled guilty to the remaining two. The trial court entered judgments on each conviction, then merged two lesser offenses into their respective greater convictions. Jackson appeals alleging: 1) the evidence is insufficient to support his convictions for Level 6 felony possession of cocaine and Level 2 felony dealing in a schedule I controlled substance; and 2) his convictions for Level 5 felony attempted battery by means of a deadly weapon, Class B misdemeanor criminal mischief, Level 6 felony criminal recklessness with a deadly weapon, and Level 5 felony intimidation with a deadly weapon, violate substantive double jeopardy.

[2] We affirm his convictions for possession of cocaine, dealing in a controlled substance, criminal mischief, and criminal recklessness. Finding that his convictions for attempted battery and intimidation violate double jeopardy, we reverse and remand for vacatur of Jackson's intimidation conviction. We also sua sponte find error in the court's merger of Jackson's two Class A misdemeanor unlawful carrying of a handgun convictions into his two Level 5 felony unlawful carrying of a handgun convictions; we therefore remand for correction of Jackson's sentencing documents to reflect vacatur of the lesser Class A misdemeanors.

Facts and Procedural History

[3] In 2022, Jackson and his then co-worker, Michael Watson, worked at Best Weld in Anderson. In March 2023, Jackson was convicted of battery causing bodily injury to Watson, and a no-contact order was issued preventing Jackson from having contact with Watson.

[4] On June 12, 2023, Watson drove his three-wheeled Can Am motorcycle to Best Weld. He arrived around 6:15 a.m. and waited out front for the manager to arrive and open the business. Shortly after, another co-worker, Michael Dunham, arrived on foot and waited with Watson.

[5] While Watson and Dunham were waiting outside, a man approached on a bicycle. As he pulled up, Watson and Dunham recognized the man as Jackson. Jackson reached into the front pocket of his sweatshirt, asked Watson and Dunham how they were doing, then pulled out a handgun and started shooting at Watson and Dunham. Jackson was a few feet away from the pair, and Watson and Dunham were within about two feet of each other. Dunham ran, and Watson rolled off his Can Am then ran in the same direction as Dunham. Jackson continued shooting toward the pair, firing about five to six shots total. See Tr. Vol. II p. 132. Jackson then fled on his bicycle.

[6] After Watson dialed 9-1-1, police responded and Watson and Dunham identified Jackson as the shooter. Watson also told police that Jackson and his wife usually drove a gray Buick with “no trunk” lid. Id. at 96. The next day, Anderson Police Department Sergeant Chaz Willis, who was familiar with Jackson, located the vehicle parked behind a church in Anderson. Soon after, Sgt. Willis observed Jackson enter the driver's seat and Jackson's wife enter the passenger seat of the vehicle, then drive away. Sgt. Willis followed, observed both occupants “moving around” in the vehicle, then initiated a traffic stop. Id. at 211. Jackson's wife was compliant with police orders to exit the vehicle. However, Jackson was non-compliant. Jackson rolled down his window and stuck his hands out but did not exit the vehicle despite Sgt. Willis's four to five commands to do so. After Sgt. Willis told Jackson he would deploy a K-9 officer to assist, Jackson exited the vehicle and was detained.

[7] Sgt. Willis determined there was no reason to detain Jackson's wife, so he escorted her to the car to retrieve her personal belongings, including her purse and cigarettes. She told Sgt. Willis that there was a gun in the car that belonged to her, but she did not tell Sgt. Willis where the gun was located. Meanwhile, Jackson was searched pursuant to his arrest, and officers located a “large wad of cash” totaling $1,475 on his person. Id. at 248.

[8] During a search of the vehicle, police found a gun holster under the driver's seat and a handgun leaning against the passenger-side of the “hump” on the backseat floorboard. Id. at 223. Subsequent testing revealed DNA profiles of several individuals, including Jackson's, on the holster and the gun. After comparing a bullet recovered from Watson's motorcycle with a bullet shot from the handgun located in Jackson's car, law enforcement determined the handgun from the car was not the gun used in the shooting. Police also found a lunch box and a brown paper bag on the passenger side floorboard. Inside those containers they found a digital scale, sandwich bags, several plastic bags and a glass jar containing various plant-like materials, and a plastic bag containing a white substance. Testing revealed that the substance in the glass jar was marijuana, the white substance was cocaine, and the plant-like substance in the plastic bags was a synthetic cannabinoid called MDMB-4en-PINACA. The total weight of the synthetic cannabinoid exceeded one hundred grams.

[9] The State charged Jackson with Level 5 felony attempted battery by means of a deadly weapon, two counts of Class A misdemeanor unlawful carrying of a handgun, Class A misdemeanor invasion of privacy, Class B misdemeanor criminal mischief, two counts of Level 5 felony unlawful carrying of a handgun with a prior felony conviction, Level 6 felony criminal recklessness, Level 5 felony intimidation, Level 6 felony possession of cocaine, and Level 2 felony dealing in a controlled substance. Jackson later pled guilty to the two counts of Level 5 unlawful carrying with a prior felony conviction, and a jury found him guilty of his other nine charges. The court entered judgments of conviction on all counts. See Tr. Vol. IV p. 135. At sentencing, the court merged the two Class A misdemeanor unlawful carrying counts with the two Level 5 felony unlawful carrying with a prior conviction counts. The court sentenced Jackson to an aggregate of thirty years, with twenty-five executed in the Indiana Department of Correction and five suspended to probation. This appeal ensued.

Discussion and Decision

I. Sufficiency of Evidence

[10] Jackson challenges whether the State presented sufficient evidence to support the convictions for his drug offenses, which included Level 6 felony possession of cocaine and Level 2 felony dealing in a controlled substance.¹ Our standard for reviewing sufficiency claims is well settled:

For sufficiency of the evidence challenges, we consider only probative evidence and reasonable inferences that support the judgment of the trier of fact. On sufficiency challenges, we will neither reweigh evidence nor judge witness credibility. We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.

Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021) (citations omitted).

[11] To convict Jackson of possession of cocaine, the State had to prove he knowingly or intentionally possessed cocaine. Ind. Code § 35-48-4-6 (2014). To convict him of Level 2 felony dealing in a controlled substance, the State had to prove he possessed a schedule I, II, or III controlled substance with intent to deliver and the amount involved was at least twenty-eight grams.² Ind. Code §§ 35-48-4-2(a)(2), (b)(2), (f)(1) (2020). Jackson only challenges the possession element as to each conviction.

[12] Possession may be proven by either actual or constructive possession. Parks v. State, 113 N.E.3d 269, 273 (Ind. Ct. App. 2018). Because Jackson did not have actual possession of the contraband, the State had to prove he constructively possessed it. “Constructive possession occurs when somebody has the intent and capability to maintain dominion and control over the item.” Smith v. State, 113 N.E.3d 1266, 1270 (Ind. Ct. App. 2018) (citation omitted), trans. denied. When a defendant's possession of the premises on which the contraband was found is non-exclusive, knowledge may be inferred from evidence of additional circumstances indicating the defendant's knowledge of the presence of the contraband and the ability to control it. Id. Such additional circumstances include but are not limited to:

(1) incriminating statements by the defendant, (2) attempted flight or furtive gestures, (3) location of substances like drugs in settings that suggest manufacturing, (4) proximity of the contraband to the defendant, (5) location of the contraband within the defendant's plain view, and (6) the mingling of the contraband with other items owned by the defendant.

Parks, 113 N.E.3d at 273.

[13] Here, there is ample evidence to prove Jackson constructively possessed the drugs in the car, including the cocaine and synthetic cannabinoids upon which his convictions were based. Although his possession of the Buick was non-exclusive, Jackson does not dispute that he had a possessory interest in the vehicle that contained the contraband. And because he was the driver of the car, the jury could impute constructive possession of the drugs to him. State v. Emry, 753 N.E.2d 19, 21-22 (Ind. Ct. App. 2001) (“Constructive possession of items found in an automobile may be imputed to the driver of the vehicle”).

[14] In addition, the containers that held the drugs, including a lunch box and a brown paper bag, were located on the floorboard of the front passenger seat. The car did not contain a floor console dividing the driver and passenger floorboard, leaving the containers holding the contraband within Jackson's immediate reach. See State's Ex. 65. Moreover, although Jackson did not attempt to flee when Sgt. Willis initiated the traffic stop, he was not immediately compliant. While Sgt. Willis was following Jackson's car, he observed Jackson and his wife moving around in the vehicle. Once stopped, Sgt. Willis ordered Jackson to exit the vehicle four or five times. Jackson rolled his window down and stuck his hands out but then pulled them back in and refused to exit the vehicle until Sgt. Willis indicated a K-9 officer would assist. The jury could infer from Jackson's non-compliance that he was aware of the contraband inside the car. Finally, officers found a large amount of cash in Jackson's pocket after he was detained. See, e.g., Mitchell v. State, 745 N.E.2d 775, 789 (Ind. 2001) (a large amount of cash found on a defendant is a factor that supports a dealing conviction). From all this evidence, a reasonable jury could find that Jackson had the capability and intent to maintain dominion and control over the contraband, and therefore that he constructively possessed it.

II. Double Jeopardy

[15] Jackson contends his convictions for attempted battery, criminal mischief, criminal recklessness, and intimidation violate the prohibition against double jeopardy because they all involve “the same use of a pistol at the same time and location.” Appellant's Br. p. 16. He later states his “action in firing a number of shots occurred quickly and was all that was relied on the [sic] support the charges of intimidation, criminal mischief and criminal recklessness.” Id. at 19. In support of his argument, Jackson quotes the charging information for his attempted battery, criminal mischief, criminal recklessness, and intimidation charges and provides a series of long block quotes from Vanbibber v. State, 268 N.E.3d 315 (Ind. Ct. App. 2025), a case that involved only criminal recklessness and intimidation convictions. Finally, he provides a long block quote of the prosecutor's closing argument from the transcript of his trial and states the “use of the pistol was the common nexus for all 4 charges and there was a continuous crime with the pistol in a very short period of time.” Appellant's Br. p. 20. Thus, he asserts the convictions for criminal mischief, criminal recklessness, and intimidation should be vacated.

[16] The State contends Jackson's double jeopardy claims are waived for failure to properly analyze them under the applicable double jeopardy framework and for failure to present a cogent argument. The State asserts that Jackson “combines all of the convictions together” instead of analyzing each claim. Appellee's Br. p. 26.

[17] Jackson does minimally include some relevant portions of the applicable double jeopardy analysis. For example, he notes the statutes under which he was charged do not clearly permit multiple punishments and that the “charges at issue are ․ ambiguous on whether they sought to punish the same conduct which was firing a pistol.” Appellant's Br. p. 19. However, we cannot discern from Jackson's brief which conviction he claims violates double jeopardy against another. For example, it is conceivable that Jackson believes his intimidation conviction is barred by his attempted battery conviction, or that his criminal recklessness conviction is barred by his intimidation conviction, or that some or all other combinations of one conviction against another violate double jeopardy. It is also possible that Jackson intended to allege that each conviction violated double jeopardy against only one other conviction, such as his attempted battery conviction, which carried the greatest penalty. But this too would have required an individual analysis for each challenged conviction, so we would not be left to guess which facts support his argument as to each double jeopardy allegation. Because we cannot become an advocate for Jackson by untangling this web of possibilities on his behalf and analyzing each possible combination of convictions, we conclude the majority of his possible double jeopardy claims are waived. See Stark v. State, 204 N.E.3d 957, 963 (Ind. Ct. App. 2023) (the appellate court will not become an advocate for a party or address arguments that are too poorly developed or explained to be understood).

[18] In a summary paragraph near the end of his brief, Jackson contends the “reckless element” of his criminal mischief conviction “is covered by the criminal recklessness statute.” Appellant's Br. p. 20. Although his analysis for these two convictions is brief, we find it sufficiently developed to address. In addition, we review the substantive double jeopardy arising from Jackson's attempted battery and intimidation convictions, which is apparent on the record.

A. Criminal Recklessness and Criminal Mischief

[19] We review double jeopardy claims de novo. McGuire v. State, 263 N.E.3d 745, 749 (Ind. Ct. App. 2025), trans. denied. Where, as here, the claim involves a single criminal transaction that violates multiple statutes with common elements and harms one or more victims, we apply the analysis laid out in Wadle v. State, 151 N.E.3d 227, 237 (Ind. 2020).

[20] First, we determine whether “the language of either statute clearly permits multiple punishment, either expressly or by unmistakable implication[.]” Id. at 248. If so, the inquiry is at an end and there is no double jeopardy violation. Id. Here, we agree with the parties that neither the criminal recklessness nor the criminal mischief statute permits multiple punishments. See Ind. Code §§ 35-42-2-2 (2019), 35-43-1-2 (2022). As such, we turn to Wadle's next step.

[21] Second, we determine whether the offenses are included “either inherently or as charged[.]” Id. If neither offense is included in the other, again the inquiry ends and there is no double jeopardy violation. Id.

Included offenses come in two forms: inherently included offenses and offenses that are included as charged. An offense is inherently included if it meets the definition of “included offense” in Indiana Code Section 35-31.5-2-168. An offense is included as charged (or “factually included”) if the charging instrument alleges that the means used to commit the crime charged include all of the elements of the alleged lesser included offense. In determining whether offenses are included as charged, we examine only the facts as presented on the face of the charging information.

McGuire, 263 N.E.3d at 749-50 (quotations omitted).

[22] Jackson does not clearly state whether he believes criminal recklessness and criminal mischief are inherently included offenses. An inherently included offense is “established by proof of the same material elements or less than all the material elements required” to prove the other offense; “consists of an attempt to commit the offense charged or an offense otherwise included therein;” or differs from the other offense in 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 prove the other offense. Ind. Code § 35-31.5-2-168 (2012). Each crime requires proof of an element that the other does not: criminal recklessness requires proof of a substantial risk of injury to another, while criminal mischief requires proof of damage to or defacing of the property of another. In addition, harm to a person or to property are different kinds of harms and not simply varying degrees of the same type of harm. And neither charge is an attempt of the other. The offenses thus fail to meet the statutory definition of an “included offense” under Indiana Code section 35-31.5-2-168.

[23] However, Jackson seemingly argues the offenses are factually included. “[W]hen assessing whether an offense is factually included, a court may examine only the facts as presented on the face of the charging instrument.” A.W. v. State, 229 N.E.3d 1060, 1067 (Ind. 2024) (emphasis in original). “This includes examining the ‘means used to commit the crime charged,’ which must ‘include all of the elements of the alleged lesser included offense.’ ” Id. (quoting Wadle, 151 N.E.3d at 251) (emphasis added).

[24] Here, the charging information for Count IV, criminal mischief, reads, “On or about June 12, 2023, in Madison County, State of Indiana, Wade Turner Jackson Jr. did without the consent of Michael K. Watson, recklessly, knowingly or intentionally damage or deface the property of Michael K. Watson, to-wit: motorcycle.” App. Vol. II p. 159. The charging information for Count VI, criminal recklessness, reads, “On or about June 12, 2023, in Madison County, State of Indiana, Wade Turner Jackson Jr. did recklessly, knowingly, or intentionally with a deadly weapon, perform an act that created a substantial risk of bodily injury to another person.” Id. at 161.

[25] The charging information makes clear that the bases for each of the offenses were different: that is, one was based on a substantial risk of bodily injury to a person and the other was based on damage to property. And the means used to commit criminal recklessness does not include all the elements of the alleged lesser included offense, criminal mischief. See A.W., 229 N.E.3d at 1067. In other words, it is not conceivable that the damage to the motorcycle alleged in the criminal mischief count was the act performed to create a substantial risk of injury to another person alleged in the criminal recklessness count. Because these two offenses are neither inherently nor factually included, there is no double jeopardy violation and our analysis ends. See id. at 1068 (“if Step 2 is not met, the analysis ends”) (emphasis in original).

B. Attempted Battery and Intimidation

[26] Turning to Jackson's convictions for attempted battery and intimidation, we agree with the parties that neither statute clearly permits multiple punishments. See Ind. Code §§ 35-42-2-1 (2020), 35-41-5-1 (2014), 35-45-2-1 (2022). So, we move to the second step to determine whether the offenses are inherently or factually included. Attempted battery with a deadly weapon requires proof of an attempted touching, while intimidation requires proof of a threat. As such, neither offense is inherently included in the other because they each require proof of a material element the other does not. See I.C. § 35-31.5-2-168.

[27] Thus, we turn to whether the offenses are factually included by reviewing the charging information. See ¶21 supra. If ambiguities exist in a charging instrument about whether one offense is factually included in another, courts must construe those ambiguities in the defendant's favor and find a presumptive double jeopardy violation, although the State can later rebut this presumption. A.W., 229 N.E.3d at 1069. This is a protection for the defendant, as otherwise the State “could unilaterally decide how much to include (or not include) in the charging instrument, which could decisively determine the outcome of a double jeopardy claim.” Id.

[28] Here, the charging information for Count I, attempted battery by means of a deadly weapon, reads, “On or about June 12, 2023, in Madison County, State of Indiana, Wade Turner Jackson Jr. attempted to knowingly or intentionally touch Michael K. Watson in a rude, insolent, or angry manner with a deadly weapon, a firearm.” App. Vol. II p. 158. The charging information for Count VII, intimidation, reads,

On or about June 12, 2023, in Madison County, State of Indiana, Wade Turner Jackson, Jr. did communicate a threat to Michael K. Watson, another person, by drawing or using a deadly weapon, with the intent that Michael K. Watson be placed in fear that the threat will be carried out.

Id. at 161.

[29] The charging information simply tracks the statutory language and lacks specific factual detail to determine whether the means used to commit the intimidation was something other than the attempted battery. It is entirely conceivable that Jackson used a firearm to intimidate Watson by means of his attempted touching of Watson with that firearm. In other words, it is possible that the threat alleged in the intimidation count was committed by the knowing or intentional attempted touching alleged in the attempted battery count. This ambiguity creates a rebuttable presumption of a substantive double jeopardy violation. See A.W., 229 N.E.3d at 1070.

[30] Thus, we proceed to the final step. To rebut the presumptive violation, “the State must demonstrate that it made clear to the fact-finder at trial that the apparently included charge was supported by independent evidence such that the State made a distinction between what would otherwise be two of the same offenses.” Eversole v. State, 251 N.E.3d 604, 608 (Ind. Ct. App. 2025) (quotation omitted), trans. denied. To make this determination, we look to whether 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.” Wadle, 151 N.E.3d at 249.

[31] Here, the State concedes the charges were not supported by independent evidence to distinguish them. At trial, the State relied on Jackson's act of riding up on his bike, drawing a gun, and shooting the gun toward Watson to prove the attempted battery charge. In closing, the State relied on the same facts with respect to the intimidation charge, noting that “[p]ulling that gun out and firing it, even pulling the gun out is enough to be a threat and intimidation on another.” Tr. Vol. IV p. 71.

[32] Based on the evidence and arguments presented, the intimidation charge is factually included in the attempted battery charge. Thus, Jackson's convictions for Level 5 felony attempted battery and Level 5 felony intimidation violate his substantive double jeopardy rights. Accordingly, we remand for vacatur of the factually included offense of intimidation and its accompanying sentence.³ See McGuire, 263 N.E.3d at 751 (remanding for vacatur of the factually included conviction).

III. Merged Convictions

[33] Finally, we address sua sponte the trial court's purported merger of two of Jackson's convictions and remand for correction. At the close of Jackson's trial, the court “enter[ed] judgment and conviction for the respective verdicts[,]” including for two counts of Class A misdemeanor unlawful carrying of a handgun. Tr. Vol. IV p. 135. At sentencing, the court sentenced Jackson to one year for each unlawful carrying count; then, it merged each misdemeanor unlawful carrying count with Jackson's two convictions for Level 5 felony unlawful carrying of a handgun with a prior felony conviction. See id. at 164-65. The abstract of judgment and the sentencing order both reflect “Conviction Merged” as to each Class A misdemeanor unlawful carrying of a handgun. App. Vol. II p. 31, App. Vol. III p. 8. The sentencing order reflects the court entered a one-year sentence on each Class A misdemeanor unlawful carrying, but the abstract of judgment excluded entry of a sentence for the same.

[34] A trial court's “act of merging, without also vacating the conviction, is not sufficient to cure a double jeopardy violation.” Perry v. State, 258 N.E.3d 1028, 1033 (Ind. Ct. App. 2025) (quoting Gregory v. State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008), trans. denied), trans. denied. “When two convictions cannot stand under double jeopardy principles, the proper remedy is to vacate one conviction, rather than merge convictions.” Id. We therefore remand for correction of the abstract of judgment and sentencing order to reflect that Jackson's two convictions and sentences for Class A misdemeanor unlawful carrying of a handgun are vacated, rather than merged.

Conclusion

[35] The evidence presented was sufficient to support Jackson's convictions for possession of cocaine and dealing in a schedule I controlled substance, and we affirm those convictions. We further affirm his convictions for criminal mischief and criminal recklessness. However, because his convictions for attempted battery and intimidation violate double jeopardy, we remand for vacatur of his intimidation conviction and its accompanying sentence. We also remand for correction of Jackson's sentencing documents to reflect that his convictions and sentences for Class A misdemeanor unlawful carrying of a handgun are vacated, not merged.

[36] Affirmed in part, reversed in part, and remanded with instructions.

FOOTNOTES

1.   The State argues Jackson waived his sufficiency claim because he failed to present a cogent argument by referring generally to drug offenses without specifying which drug offense he challenges. But the substance of his argument refers to all the drugs found in his car, including the cocaine and synthetic cannabinoids; thus, it is apparent that Jackson challenges both drug-related convictions. He has not waived his sufficiency claims.

2.   The charging information alleges that Jackson “did possess with the intent to deliver a controlled substance, pure or adulterated, classified in schedule I, said drug having a weight of at least 28 grams.” App. Vol. II p. 163. This language mirrors Indiana Code section 35-48-4-2(a)(2). The preliminary and final jury instructions also mirror the language of subsection 2(a)(2). See Tr. Vol. II p. 35, Tr. Vol. IV pp. 112-13. However, the charging information and the court's sentencing order reflect Indiana Code section 35-48-4-2(a)(1), which appears to be a scrivener's error. See App. Vol. II p. 163, 31. Jackson makes no mention of this discrepancy on appeal.

3.   Vacatur of the intimidation conviction's sentence will not affect Jackson's aggregate sentence.

Scheele, Judge.

Bailey, J., and Vaidik, J., concur.