MEMORANDUM DECISION
Felix, Judge.
Statement of the Case
[1] While incarcerated in the Dearborn County Security Center (the “Security Center”), Matthew Gabbard, Karla Homola, Richard Oldfield, Daniel Creech, and Dustin Cole planned to smuggle methamphetamine into the Security Center. On two occasions, Gabbard brought methamphetamine into the Security Center through a hole he had made in Oldfields cell window. Shortly after the second delivery, correctional officers discovered some of the methamphetamine. Gabbard was convicted of conspiracy to deal methamphetamine, possession of methamphetamine, and dealing in methamphetamine. Gabbard presents multiple issues on appeal, which we revise and restate as follows:
1. Whether there was sufficient evidence to sustain the convictions;
2. Whether the convictions violate protections against double jeopardy; and
3. Whether the jury instruction on direct versus circumstantial evidence resulted in fundamental error.
[2] We affirm in part, reverse in part, and remand to the trial court to vacate Gabbards possession convictions.
Facts and Procedural History
[3] In March 2022, Gabbard was incarcerated in the Security Center in Lawrenceburg, Indiana, and shared a cell with Cole. Oldfield was an inmate in a different cell located in the same block as Gabbard. In this cell block, inmates could move freely around the block for significant portions of the day. At some point prior to March 5, 2022, Gabbard and Oldfield created a small hole in the window of Oldfields cell window using a screw and metal plate taken from a shower. The hole was a little bigger than a quarter, and Gabbard planned to use the hole to smuggle methamphetamine into the Security Center.
[4] On March 5, 2022, Gabbard began sending text messages to Homola, his ex-girlfriend. Tr. Vol. V at 119–22. He told Homola that he wanted her to buy methamphetamine from Creech and bring it to the Security Center. Gabbard arranged for people to send money to Homola through her “cash app.” Id. at 123. Homola received $140 and used that money to buy seven grams of methamphetamine from Creech.
[5] After she bought the methamphetamine, Gabbard told Homola to put the drugs into a condom and take it to the Security Center. Once Homola arrived outside the Security Center, Gabbard shone the light of an e-cigarette from Oldfields cell to show her where he was located. Homola then found the string that Gabbard had thrown out of the hole in the window and tied the condom onto the string. At the time, Gabbard, Oldfield, and Cole were waiting in Oldfields cell. Once the condom was tied to the string, Gabbard and Oldfield pulled the string and condom into the cell. The three inmates then took the methamphetamine to Gabbards cell, used some of it, and split the remaining methamphetamine between Gabbard and Oldfield.
[6] The next day on March 6, Gabbard texted Homola and asked for “[a] repeat of the night before.” Tr. Vol. V at 140. Again, Gabbard arranged for Homola to get $140, and Homola bought seven grams of methamphetamine from Creech, put the drugs in a condom, and tied them to a string outside of the Security Center. Gabbard and Oldfield then pulled the second delivery of methamphetamine through Oldfields cell window. Just like the previous day, Gabbard, Oldfield, and Cole took the methamphetamine to Gabbards cell, used some of the methamphetamine, and split the remaining methamphetamine between Gabbard and Oldfield.
[7] On March 8, Gabbard used some of the methamphetamine in his cell and started “acting weird.” Tr. Vol. III at 189–90. A correctional officer went to Gabbards cell to check on him and found Gabbard kneeling on his bed and staring out the window. Gabbard then told the officer that “the aliens in the parking lot were swallowing people as they were walking by, they were swallowing cars, that the aliens had already swallowed up the CSX railroad stuff out there.” Id. at 192. Correctional officers searched Gabbards cell and found a clear plastic bag containing 2.19 grams of methamphetamine.
[8] The State charged Gabbard with conspiracy to deal in methamphetamine in an amount of at least five grams with an enhancing circumstance as a Level 2 felony (Count III)
1
, two counts of possession of methamphetamine at least five grams but less than ten grams with an enhancing circumstance as a Level 4 felony (Counts IV,V), two counts of possession of methamphetamine in an amount less than five grams with an enhancing circumstance as a Level 5 felony (Counts VI, VII), and dealing in methamphetamine in an amount less than one gram with an enhancing circumstance as a Level 4 felony (Count VIII). The enhancing circumstance for these charges was that they were committed inside a penal facility. The State also alleged habitual offender and criminal organization enhancements. After a jury trial, the jury found Gabbard guilty as charged. Gabbard admitted the habitual offender enhancement, and, in exchange, the State dismissed the criminal organization enhancement.
[9] During sentencing, the trial court merged Counts VI and VII into Counts IV and V as lesser included offenses. In doing so, the trial court vacated the possession convictions in Counts VI and VII. The trial court sentenced Gabbard to an aggregate sentence of 50 years to be served at the Indiana Department of Correction. Gabbard now appeals.
Discussion and Decision
1. There Was Sufficient Evidence to Sustain Convictions for Possession of Methamphetamine and Conspiracy to Deal Methamphetamine
[10] Gabbard argues that the State failed to present sufficient evidence at trial to support his convictions. “Sufficiency-of-the-evidence arguments trigger a deferential standard of appellate review, in which we ‘neither reweigh the evidence nor judge witness credibility, instead reserving those matters to the province of the jury.’ ” Owen v. State, 210 N.E.3d 256, 264 (Ind. 2023) (quoting Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018)), rehg denied (Aug. 17, 2023). In our review, “we consider only ‘the probative evidence and reasonable inferences supporting the verdict.’ ” Id. (quoting Matheney v. State, 583 N.E.2d 1202, 1208 (Ind. 1992)). We will reverse a guilty verdict only when no reasonable trier of fact “could find the elements of the crime proven beyond a reasonable doubt.” Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012) (quoting Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)). Gabbard claims that the State did not present sufficient evidence to demonstrate that he conspired to deal methamphetamine and possessed methamphetamine, both in an amount at least five grams but less than ten grams.
Conspiracy
[11] Gabbard argues the State provided insufficient evidence to prove conspiracy because it did not present direct evidence that the weight of the methamphetamine was at least five grams. However, the State did not need to prove the weight of the methamphetamine to prove conspiracy. To prove that Gabbard conspired to deal methamphetamine the State needed to prove only that (1) Gabbard intended to deal methamphetamine in an amount at least five grams but less than ten grams, (2) Gabbard agreed with another person to deal methamphetamine in an amount at least five grams but less than ten grams, and (3) either Gabbard or a person he agreed with committed an overt act in furtherance of their agreement. See Ind. Code. § 35-41-5-2(a)–(b).
[12] Here, there is sufficient evidence to prove the elements of conspiracy. The evidence showed that Gabbard contacted Creech about purchasing seven grams of methamphetamine, sent money to Homola, and told Homola to buy methamphetamine from Creech. The evidence also showed that Gabbard successfully smuggled methamphetamine into the Security Center and distributed it to other inmates. Thus, the State presented sufficient evidence to establish the agreement to deal in methamphetamine and an overt act in furtherance of that agreement.
Possession
[13] In order to convict Gabbard of possession of methamphetamine as a Level 4 felony, the State had to prove beyond a reasonable doubt that Gabbard knowingly or intentionally possessed methamphetamine without a valid prescription in an amount “at least five (5) but less than ten (10) grams and an enhancing circumstance applies.” I.C. § 35-48-4-6.1. Gabbard argues only that there was insufficient evidence to prove the weight element of this offense.
[14] To prove the weight element of a drug offense, “the State must either offer evidence of its actual, measured weight or demonstrate that the quantity of the drugs or controlled substances is so large as to permit a reasonable inference that the element of weight has been established.” Halsema v. State, 823 N.E.2d 668, 674 (Ind. 2005). There is more than one way the State can provide direct evidence of the actual measured weight of a drug. Buelna v. State, 20 N.E.3d 137, 147 (Ind. 2014). One example is that the State can elicit testimony of a forensic scientist who weighed the drug. Another way to present direct evidence is from “those who regularly use or deal in the substance” to establish the weight of the substance. Id. (quoting Halsema v. State, 823 N.E.2d 668, 674 (Ind. 2005)). A third way is to present testimony from law enforcement officers who regularly investigate drug crimes. Id. The State may also provide circumstantial evidence to corroborate this direct evidence. See id. at 148. The jury can “reasonably rely on that testimony alone” to reach its conclusion as to the actual measured weight of a substance. Id.
[15] The State provided sufficient evidence of the actual weight of the methamphetamine. Gabbards two possession charges stem from the methamphetamine Homola delivered to Gabbard on March 5 and 6. The text messages between Homola and Creech show that the transaction was for seven grams on both days. Additionally, Homola and Cole both testified that they had used methamphetamine in the past and believed the amount delivered to the jail was seven grams. Further, Cole testified that Gabbard had anticipated seven grams of methamphetamine and Gabbard was satisfied with the quantity when it was delivered. Thus, the State provided sufficient evidence to prove the weight of the methamphetamine was at least five grams.
2. Gabbards Convictions for Possession and Dealing in Methamphetamine Violate Double Jeopardy
[16] Gabbard argues that his convictions violate constitutional protections against double jeopardy. We apply a de novo standard of review to double jeopardy claims. A.W. v. State, 229 N.E.3d 1060, 1064 (Ind. 2024) (citing Wadle v. State, 151 N.E.3d 227, 237 (Ind. 2020)).
[17] Gabbards claims fall under the substantive double jeopardy framework, meaning that he purports to have wrongfully received “multiple convictions for the same offense in a single proceeding.” A.W., 229 N.E.3d at 1066 (citing Wadle, 151 N.E.3d at 246–47). “Substantive double jeopardy claims come in two principal varieties: (1) when a single criminal act or transaction violates a single statute but harms multiple victims, and (2) when a single criminal act or transaction violates multiple statutes with common elements and harms one or more victims.” Wadle, 151 N.E.3d at 247. Gabbard argues both varieties on appeal.
[18] First, Gabbard claims that he received two possession convictions for a single act. Second, Gabbard argues that his possession and conspiracy convictions have common elements to his dealing conviction.
Gabbards Two Possession Convictions Do Not Violate Double Jeopardy.
[19] Gabbard contends that he received two convictions for one single act of possession. In reviewing such a claim, ultimately “we ask whether ‘the same act may be twice punished’ as ‘two counts of the same offense.’ ” Powell v. State, 151 N.E.3d 256, 263 (Ind. 2020) (quoting Kelly v. State, 527 N.E.2d 1148, 1154 (Ind. Ct. App. 1988), affd, 539 N.E.2d 25, 26 (Ind. 1989)).
[20] Answering this question involves a two-step process. Powell, 151 N.E.3d at 264. “First, we review the text of the statute itself. If the statute, whether expressly or by judicial construction, indicates a unit of prosecution, then we follow the legislatures guidance and our analysis is complete.” Id. However, if the statute is ambiguous, we must move to step two. Id. “Under this second step, a court must determine whether the facts—as presented in the charging instrument and as adduced at trial—indicate a single offense or whether they indicate distinguishable offenses.” Id.
[21] Gabbard was charged with knowingly or intentionally possessing methamphetamine weighing at least five grams but less than ten grams in a penal facility. The plain text of the statute does not indicate a unit of prosecution. See I.C. § 35-48-4-6.1(c)(2). Thus, we move to the second step. See Powell, 151 N.E.3d at 264.
[22] In the second step, Gabbards conduct shows two instances of possession. The charging instrument clearly indicates that Gabbard allegedly possessed methamphetamine on both March 5 and March 6. Gabbard claims these two convictions were proven by the same evidence, but the record shows otherwise. Homola testified that she delivered seven grams of methamphetamine to the jail on March 5 and then delivered another seven grams of methamphetamine on March 6. Additionally, Cole testified that he was with Gabbard on both days while Gabbard possessed and used the methamphetamine. Both the charging instrument and the evidence at trial show that Gabbards two possession charges were not “so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.” Powell, 151 N.E.3d at 264 (quoting Walker v. State, 932 N.E.2d 733, 735 (Ind. Ct. App. 2010)). Thus, there is no double jeopardy violation for Gabbards two possession convictions.
Under the Wadle Test, Gabbards Conspiracy and Dealing Convictions Do Not Violate Double Jeopardy, but the Dealing and Possession Convictions Violate Double Jeopardy
[23] Gabbard also makes double jeopardy claims alleging that he was wrongfully convicted under multiple statutes that have common elements. We analyze these claims under the three-part test established in Wadle v. State. 151 N.E.3d at 253; see also A.W., 229 N.E.3d at 1066–71.
[24] We begin with the statutory language of the offenses. Wadle, 151 N.E.3d at 248. “If the language of either statute clearly permits multiple punishment, either expressly or by unmistakable implication, the courts inquiry comes to an end and there is no violation of substantive double jeopardy.” Id. Next, we apply our included offense statute. Id. “If neither offense is an included offense of the other (either inherently or as charged), there is no violation of double jeopardy.” Id. For this second step, we confine our analysis to “(1) the included-offense statute (whether the offenses are ‘inherently’ included), and (2) the face of the charging instrument (whether the offenses ‘as charged’ are factually included).” A.W., 229 N.E.3d at 1068. If we determine that that one offense is included in the other, we “examine the facts underlying those offenses, as presented in the charging instrument and as adduced at trial” to determine if the defendants 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 (quoting Walker, 932 N.E.2d at 735).
[25] Gabbard makes two claims that ask us to apply the Wadle test. First, Gabbard argues that his conspiracy to deal methamphetamine conviction is a lesser included offense of his dealing in methamphetamine conviction. Second, he claims his possession of methamphetamine convictions are lesser included offenses of his dealing in methamphetamine conviction.
a. Conspiracy and Dealing Convictions
[26] Gabbard argues that his convictions for conspiracy to deal methamphetamine and dealing methamphetamine violate double jeopardy. The conspiracy statute allows for multiple punishments by unmistakable implication. Garth v. State, 182 N.E.3d 905, 920 (Ind. Ct. App. 2022). We have previously explained this implication:
[W]e find support for the proposition that the legislature intended multiple punishments in Indiana Code Section 35-41-5-3, the statute immediately following the attempt and conspiracy statutes. Section 35-41-5-3 explicitly prohibits convictions for both a conspiracy and an attempt with respect to the same underlying crime. It also prohibits convictions for both a crime and an attempt to commit the same crime. Notably, however, it does not prohibit convictions for both a crime and a conspiracy to commit the same crime. If the legislature wanted to prohibit convictions for both a crime and a conspiracy to commit that same crime, it surely would have included such language in Section 35-41-5-3.
Id. (internal citations omitted). As a result, “Indiana treats the offense of conspiracy to commit an offense as a separate crime from the underlying offense because the ‘agreement itself constitutes the criminal act.’ ” Littlefield 215 N.E3d 1081, 1088 (Ind. Ct. App. 2023) (citing Coleman v. State, 952 N.E.2d 377, 382 (Ind. Ct. App. 2011). Since the conspiracy statute allows for multiple punishments, there is no double jeopardy violation for the conspiracy to deal and dealing convictions. See Wadle, 151 N.E.3d at 248.
b. Dealing and Possession Convictions
[27] Gabbard argues his convictions for possession of and dealing in methamphetamine violate double jeopardy. Gabbard was convicted of possession of methamphetamine on March 5 and 6, 2022 as well as dealing in methamphetamine on, about, or between March 5 and 9, 2022. Step one of the Wadle test shows that neither offense explicitly or implicitly allows for multiple punishments. See I.C. §§ 35-48-4-6.1; 35-48-4-1.1. Next, we apply our included offense statute which states a lesser included offense:
(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.
Id. § 35-31.5-2-168.
[28] Per subsection 1 of the included offense statute, possession of methamphetamine is an included offense of dealing in methamphetamine. Phillips v. State, 174 N.E. 3d 635, 646 (Ind. Ct. App. 2021), overruled on other grounds by A.W., 229 N.E.3d at 1068–69. “The material elements of possession of methamphetamine—that is, knowing or intentional possession of the drug—are established through proof of the material elements of dealing in methamphetamine—possession with intent to deliver.” Id. (citing I.C. §§ 35-48-4-1.1(a), 35-58-4-6.1(a)(2)).
[29] The final step of the Wadle analysis shows that Gabbards possession and dealing constituted a single transaction. The charging instrument and testimony at trial showed that on March 5 and 6 he possessed over five grams of methamphetamine and distributed methamphetamine to others. Thus, the possession and dealing convictions violate double jeopardy. See Wadle, 151 N.E.3d at 248.
[30] The State agrees and asks us to vacate the convictions of Counts IV and V, but, in doing so, the State also asks us to reinstate the possession convictions for Counts VI and VII. In entering its judgment, the trial court found Gabbard guilty of Counts VI and VII; determined these counts were lesser included offenses of Counts IV and V; merged Counts VI and VII into Counts IV and V; and vacated the convictions for Counts VI and VII. In essence, the State asks us to reverse the trial courts conclusion that Counts VI and VII were lesser included offenses of Counts IV and V.
[31] This argument for Counts VI and VII is contrary to the States position at trial. On appeal, the State argues that Counts VI and VII were distinct offenses from Counts IV and V. However, these counts were added after the jury had been selected, and the State expressly added them as lesser included offenses “in an abundance of caution” if they were not able to prove the weight of Counts IV and V. Tr. Vol. III at 59. Thus, we are unpersuaded by the States argument that we reinstate these convictions.
3. The Trial Court Did Not Commit Fundamental Error by Giving a Jury Instruction About Direct and Circumstantial Evidence
[32] Gabbard argues that the trial court erred by giving the following jury instruction:
The parties in this case may prove a fact by one or two types of evidence: direct evidence or circumstantial evidence. Direct evidence is direct proof of a fact. Circumstantial evidence is indirect proof of a fact. For example, direct evidence that an animal ran in the snow might be the testimony of someone who actually saw the animal run in the snow. On the other hand, circumstantial evidence that an animal ran in the snow might be the testimony of someone who only saw the animals tracks in the snow. It is not necessary that any fact be proved by direct evidence. You may consider both direct evidence and circumstantial evidence as proof.
Supp. Tr. at 18. Gabbard did not object to the instruction at trial, so, on appeal, he claims this instruction amounted to fundamental error.
[33] “An error is fundamental if it ‘made a fair trial impossible’ or if it clearly and blatantly violated basic principles of due process resulting in ‘undeniable and substantial potential for harm.’ ” Batchelor v. State, 119 N.E.3d 550, 559 (Ind. 2019) (quoting Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018)). When reviewing a jury instruction for fundamental error, “we need not reverse unless the instructions as a whole—the jury charge—misled the jury on the applicable law.” Id. (citing Clay City Consol. Sch. Corp. v. Timberman, 918 N.E.2d 292, 300 (Ind. 2009)).
[34] Gabbard contends that the instruction was an incorrect statement of law, stating that certain facts cannot be proven by circumstantial evidence. Specifically, Gabbard claims that the State could not prove the weight enhancement of his charges by circumstantial evidence. Our Supreme Court has stated “only direct evidence, not circumstantial evidence, may sustain a weight enhancement.” Buelna, 20 N.E.3d at 148. However, Gabbard has not demonstrated that this error affected his right to a fair trial. Gabbard claims that the jury incorrectly relied on circumstantial evidence to prove the weight of the methamphetamine, but he has not highlighted any circumstantial evidence in the record which the jury could have relied on. Rather, as we discussed earlier, the State provided sufficient direct evidence of the weight of the methamphetamine, and Gabbard has not demonstrated that the instructions as a whole made a fair trial impossible. Thus, we conclude that this instruction does not amount to fundamental error.
Conclusion
[35] There was sufficient evidence to demonstrate that Gabbard both conspired to deal and possessed methamphetamine in an amount at least five grams but less than ten grams. Gabbards convictions for possession and dealing in methamphetamine violate double jeopardy, so we remand to the trial court with instructions to vacate these convictions. There was no fundamental error in the jury instructions.
[36] Affirmed in part, reversed in part, and remanded to the trial court to vacate the possession convictions.
FOOTNOTES
1
. Gabbard was tried alongside multiple co-defendants. Counts I and II on the charging information were not against Gabbard. See Appellants App. Vol. II 160–61.
Memorandum Decision by Judge Felix
Chief Judge Altice and Judge Bradford concur.
Altice, C.J., and Bradford, J., concur.