Riley, J.
Appellant-Defendant, Bryan Stone (Stone), appeals his conviction for two counts of dealing in a synthetic drug or synthetic drug lookalike substance, both as Class D felonies, Ind. Code §§ 35-48-4-10.5 (b)(2); -(c)(1)(B).
Stone presents two issues for our review which we restate as:
1) Whether his conviction on two counts of dealing in synthetic drug or synthetic drug lookalike substance violates double jeopardy principles; and
2) Whether he was denied a fair trial by the admission of evidence stemming from the search of his backpack.
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On June 13, 2014, the State filed an Information charging Stone with dealing in cocaine, a Class A felony; possession of cocaine, a Class A felony; and unlawful possession or use of a legend drug, a Class D felony. On September 24, 2014, the State filed an amended Information reflecting the fact that the white powdery substance found was heroin and charging Stone with dealing in a narcotic drug, a Class B felony; and possession of a narcotic drug, a Class B felony. The State also charged Stone with two identical counts of dealing in a synthetic drug or synthetic drug lookalike substance, both as Class D felonies …
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The jury found Stone not guilty of all charges apart from the two synthetic drug charges. On July 20, 2017, the trial court sentenced Stone to 1,095 days for each conviction, to be served concurrently.
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Stone argues that his convictions for two counts of dealing in a synthetic drug or synthetic drug lookalike substance violate Article 1, Section 14, of the Indiana Constitution. Specifically, Stone contends that his convictions violate Indiana’s Double Jeopardy Clause because “[d]ividing the ‘307 bags of spice’ found at one time from one source, diving it into components, each ‘greater than 2 grams’ does not legally create multiple crimes.” … We review challenges under Indiana’s Double Jeopardy Clause de novo. Bennett v. State, 5 N.E.3d 498, 515 (Ind. Ct. App. 2014), reh’g denied, trans. denied.
For purposes of Article 1, Section 14, of the Indiana Constitution, two or more offenses are the same offense if, “with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999) (emphasis omitted).
In Campbell v. State, 734 N.E.2d 248 (Ind. Ct. App. 2000), this court addressed the issue of whether our state’s Double Jeopardy Clause prohibited multiple convictions for possession where a defendant simultaneously possessed separate quantities of the same illegal drug. …
The State charged Campbell with two counts of possession of cocaine for having possessed it on his person and for having possessed it in his home. Id. This court held that Campbell could only be convicted of one count of cocaine possession because he had simultaneously possessed the cocaine in his home and on his person. Id. …
In the more recent case of Elvers v. State, 22 N.E.3d 824 (Ind. Ct. App. 2014), this court addressed the issue of whether the simultaneous possession of different brands of spice could support the imposition of multiple charges for possession with intent to deliver. Id. at 832-33. … Elvers argued that the separate charges indicated that he had been charged for possession of the specific spice brand names rather than with possession of the prohibited compound JWH-122. Id. at 833. We agreed and held that the State should have only charged Elvers with one count of dealing in a synthetic drug because Elvers effectively had been convicted of two violations arising from his single act of simultaneously possessing multiple products containing JWH-122. Id.
Here, the State charged Stone with two identical counts of possessing with intent to deliver the prohibited compound XLR11 in an amount greater than two grams on June 12, 2014. Both charges stemmed from his simultaneous possession of two packets of spice each containing over two grams of XLR11 on June 12, 2014, that were found in his backpack. 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. 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.
Stone next contends that the search of his backpack violated his rights under the Fourth Amendment of the United States Constitution and Article 1, Section 11, of the Indiana Constitution. Ordinarily, we review a trial court’s decisions on the admission of evidence for an abuse of the trial court’s discretion. Fansler v. State, 100 N.E.3d 250, 253 (Ind. 2018). However, such decisions are not subject to review unless a contemporaneous objection was made at trial, regardless of the fact that the defendant filed a pretrial motion to suppress. Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000). Stone did not object at trial to the admission of the evidence garnered from the search of his backpack. As he recognizes on appeal, Stone’s claim of error is waived unless he can establish that the admission of the challenged evidence constituted fundamental error.
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… Stone seemingly intimates that at least one law enforcement officer involved in this case acted improperly, as he suggests that Officer Harper had an ulterior motive for searching his backpack based on his prior knowledge of Stone. However, our review of the record does not disclose any willful malfeasance by law enforcement in this case. The claimed error does not rise to the level of fundamental error, and we decline to review the admissibility of the evidence garnered from the search of Stone’s backpack. …
Based on the foregoing, we conclude that Stone waived his claim of error based upon the admission of evidence gathered from the search of his backpack but also conclude that his conviction for two counts of dealing in a synthetic drug or synthetic lookalike drug violated double jeopardy principles. We reverse in part and remand this matter to the trial court to vacate one of Stone’s convictions.
Affirmed in part, reversed in part, and remanded with instructions.
Vaidik, C. J. and Kirsch, J. concur