COA: 2 brands of ‘Spice’ no grounds for 2 dealing convictions

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A man found guilty of two counts of dealing in synthetic marijuana — commonly referred to as Spice — should have been convicted of just one charge even though the substances bore different names, the Indiana Court of Appeals ruled Wednesday.

Bryan Stone was found guilty in Howard Superior Court of two Class D felony counts of dealing in a synthetic drug or synthetic drug lookalike substance. He was convicted under the statute in place before it was substantially revised in 2014.

Kokomo police confronted Stone after they were dispatched to the scene of an alleged domestic disturbance, where both Stone and a woman at the scene denied they had argued or fought. But police also saw Stone drop a backpack outside the apparently vacant house where the alleged disturbance had taken place.

Police subsequently searched the backpack and found hundreds of packets of “Spice” and other drugs including heroin and cocaine, according to the record. Stone was tried on numerous charges but a jury found him guilty only of the synthetic drug counts. He was sentenced to 1,095 days in prison on both counts, to be served concurrently.

On appeal, Stone challenged the search of his backpack, which turned up Spice — the prohibited compound XLR11 — in packages labeled “Fidel Mix” and “Caution super strong incense.” Stone also argued his conviction violated his protections against double jeopardy. 

The COA affirmed the admission of evidence obtained in the search of Stone’s backpack. However, the panel agreed that his conviction constituted double jeopardy, citing Campbell v. State, 734 N.E.2d 248 (Ind. Ct. App. 2000) and Elvers v. State, 22 N.E.3d 824 (Ind. Ct. App. 2014).

“In light of Campbell and Elvers, we hold that the State was not permitted to break that simultaneous possession into multiple possessions based solely upon the fact that the packets containing the spice bore different brand names, which was the only distinguishing fact argued by the State at trial to support the two separate charges,” Judge Patricia Riley wrote for the panel in Bryan Stone v. State of Indiana,34A02-1710-CR-2514. 

“Stone’s convictions for both counts of dealing in a synthetic drug or synthetic drug lookalike substance violated Indiana’s prohibition against double jeopardy. Accordingly, we reverse and remand to the trial court with instructions to vacate one of Stone’s convictions.” 

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