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09/10/87 LORI A. BASS AND JOHNNY R. SNOW v. STATE

Filed: September 10, 1987.

LORI A. BASS AND JOHNNY R. SNOW, APPELLANTS (DEFENDANTS BELOW),
v.
STATE OF INDIANA, APPELLEE (PLAINTIFF BELOW)



APPEAL FROM THE HOWARD COUNTY COURT, The Honorable Eleanor B. Stein, Judge; Kathleen A. Young, Judge Pro Tempore; and George A. Hopkins, Judge Pro Tempore, Cause No. CCR 86-1226.

Young, J., Conover, J., Concurs. Sullivan, J., Concurs.

Author: Young

YOUNG, J.

In this appeal, Lori Bass and Johnny Snow argue that there is insufficient evidence to sustain their convictions for visiting a common nuisance. We agree and reverse.

The evidence in this case shows that on April 26, 1986 Bass, her son and Snow went to Craig Cullison's residence. They arrived at Cullison's around midnight and sat on the front porch with Cullison and Brenda Barnett, both of whom were present when Bass and Snow arrived. At approximately 1:15 a.m., the group entered Cullison's residence and was joined by Bass' sister, Grace Fields, about 15 minutes later.

In response to a complaint regarding loud music, three Kokomo police officers arrived at Cullison's around 2:37 a.m. Officer Davis looked through the screen door upon approaching the residence and saw the five adults, some of whom appeared to be drinking beer, and Bass' son in the living room. Bass, Snow and Fields were sitting on a couch, and directly in front of them was a coffee table on which Officer Davis saw a "bong", a cylinder object[Footnote 1] containing a small brown chunk of items and scissors containing a burnt segment of a small white object. Officer Davis then heard someone say, "Oh, my God!" and saw some of the adults putting objects down on the floor. Officer Davis did not know who had made the statement or what objects were being placed on the floor.

When the police officers entered the residence, they seized the three objects from the coffee table. They arrested Cullison for possession and maintaining a common nuisance and arrested the other adults, including Bass and Snow, for visiting a common nuisance.

At trial, Officer Davis testified that the "bong" was not hot when he picked it up and that none of the adults appeared to be under the influence of marijuana when they were arrested. A laboratory analysis was conducted on the three items seized and they were found to contain .8 grams of hashish, a small quantity of marijuana, and TCH, a residue common to marijuana. Grace Fields testified that no one had smoked marijuana while she was at Cullison's and that she had seen the "bong" but not the pill bottle or the scissors. Bass testified that no one had smoked marijuana or hashish at Cullison's during any of her visits, which were infrequent. Bass further testified that numerous items, including coupons, pictures, coasters, and a plant were on the coffee table and that she had seen the scissors in an ashtray but not the "bong" or pill bottle. The trial court convicted Fields, Bass and Snow of visiting a common nuisance but only Bass and Snow are involved in this appeal.

A person who knowingly or intentionally visits a building, structure, vehicle, or other place that is used by any person to unlawfully use a controlled substance commits visiting a common nuisance, a Class B misdemeanor.

IND. CODE 35-48-4-13(a). Bass and Snow argue that the evidence is insufficient to prove beyond a reasonable doubt that they knew Cullison's residence was used for the unlawful use of a controlled substance and that it is insufficient to prove beyond a reasonable doubt that Cullison's residence constituted a common nuisance.[Footnote 2] We agree.

Although the language of IC 35-48-4-13(a) fails to clearly apply the mens rea element of knowingly or intentionally to the element of the unlawful use of a controlled substance, the legislative history of the statute and case law interpreting some of its recent predecessors clearly indicate that one must know that a controlled substance is unlawfully used before he can be convicted of visiting a common nuisance. In Pruitt v. State, the First District held that the elements of the crime of visiting a common nuisance appear to be: 1) frequent or visit, 2) a place, 3) knowing it to be used for selling, keeping, or using, 4) of any dangerous drug. (1975), 166 Ind. App. 67, 333 N.E.2d 874 (interpreting IND. CODE 16-6-8-7 (1971 superseded) (Burns Code Ed.)[Footnote 3]) See also Carter v. State (1975), 163 Ind. App. 643, 325 N.E.2d 467 (also interpreting IC 16-6-8-7 (1971 superseded) (Burns Code Ed.)).

In Wells v. State (1976), 170 Ind. App. 29, 351 N.E.2d 43, the defendant challenged the statute which made visiting a common nuisance a crime as unconstitutionally vague because it failed to express that one must know of the illegal keeping, sale or use of a controlled substance. The Third District held the defendant lacked standing to make such a challenge because the evidence was sufficient to infer that he had knowledge of the illegal use. Id. (interpreting IND. CODE 35-24.1-4-3.5 (1971 superseded)[Footnote 4]) This view was also expressed by the second district in Terrel v. State (1976), 170 Ind. App. 422, 353 N.E.2d 553 (also interpreting IND. CODE 35-24.1-4-3.5 (1971 superseded)). In Mayotte v. State (1977), 172 Ind. App. 252, 360 N.E.2d 34 (interpreting IND. CODE 35-24.1-4.1-15 (1971 superseded)[Footnote 5]), the Third District held that the evidence was sufficient to show that the defendant had knowledge of the unlawful use of the house and therefore affirmed his conviction of visiting a common nuisance as the crime was defined by the statute upon which the current one is based. Given the recent predecessors to our current statute and case law interpreting them, it is clear that under IC 35-48-4-13(a), the state must prove beyond a reasonable doubt that the defendant knew the building, structure, vehicle or other place which he visited was used for the unlawful use of a controlled substance.[Footnote 6] The state failed to present sufficient evidence of such knowledge in its case against Bass and Snow.

The state argues that the display of paraphernalia, the amount of hashish on the table, and the burnt residue of marijuana were sufficient to give Bass and Snow knowledge that controlled substances were unlawfully used at Cullison's residence. (Appellee's brief pp. 5-6) The trial Judge, however, did not base her decision on the fact the hashish and marijuana were contained in the items but the fact that the "bong and apparatus" were in plain view. (R. 152, 154-155) In an action for maintaining a common nuisance, "[t]he possession of paraphernalia which is associated solely with the use of controlled substances is not probative of the issue of whether the defendant kept controlled substances in the building." Sayre v. State (1984), Ind.App., 471 N.E.2d 708, 716. The existence of paraphernalia which is associated solely[Footnote 7] with the use of controlled substances may be probative of the issue of whether a controlled substance was used in the building. We, however, do not find such evidence to be conclusive on the issue of whether the defendant knew of such use even if the paraphernalia was in plain view. If the trial court's judgment was based solely on the existence of paraphernalia, the judgment was in error. Ewing v. State (1974), 160 Ind. App. 138, 145, 310 N.E.2d 571, 576.

"[I]t is well established, however, that a decision of the trial court will be sustained if a valid ground exists to support it, whether or not the trial court considered those grounds." Bruce v. State (1978), 268 Ind. 180, 200, 375 N.E.2d 1042, 1054. In short, if the ruling of the trial Judge is correct, her stated reason is of no consequence. Hyde v. State (1983), 451 N.E.2d 648, 650 citing Cain v. State (1973), 261 Ind. 41, 45, 300 N.E.2d 89, 92. We must therefore consider whether there was any evidence, in addition to the existence of the paraphernalia, which would have allowed the ...


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