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Leatherman v. State

Court of Appeals of Indiana

May 9, 2018

Jerold W. Leatherman, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the Lawrence Superior Court The Honorable William G. Sleva, Judge Trial Court Cause No. 47D02-1703-F6-292

          Attorney for Appellant Jennifer G. Schlegelmilch Lawrence County Public Defender Agency Bedford, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana

          BAILEY, JUDGE.

         Case Summary

         [¶1] Jerold W. Leatherman ("Leatherman") appeals his convictions for maintaining a common nuisance, a Level 6 felony, [1] and possession of paraphernalia, as a Class C misdemeanor.[2]

         [¶2] We affirm in part and reverse in part.

         Issues

         [¶3] Leatherman raises the following two issues:

I. Whether the State provided sufficient evidence to support his conviction for maintaining a common nuisance.
II. Whether the State provided sufficient evidence to support his conviction for possession of paraphernalia.

         Facts and Procedural History

         [¶4]On February 27, 2017, Sergeant Justin Dodd ("Sgt. Dodd") of the Bedford Police Department and Detective Chris Roberts ("Det. Roberts") of the Lawrence County Sheriff's Department were investigating a tip regarding possible drug dealing and prostitution near Frank Street in Mitchell, Indiana. While patrolling the area in an unmarked vehicle, the two officers saw Leatherman, who was driving a van that had been parked alongside the road, drive a short distance to another home on nearby Meridian Street. A man exited the house and approached Leatherman's van. Leatherman then backed out of the driveway and parked his van alongside the road on Frank Street.

         [¶5] As Det. Roberts, who was driving the officers' vehicle, drove past Leatherman's van on the driver's side, Leatherman opened the driver's side door and nearly struck the officers' vehicle. Det. Roberts stopped the vehicle and, as he approached Leatherman's vehicle, he instructed Leatherman to "be a little more careful" about opening his car door. Tr. Vol. II at 71-72. In accordance with safety protocol, Sgt. Dodd also exited the truck and approached Leatherman's van on the passenger's side. When he crossed behind the van, Sgt. Dodd saw Leatherman pass a small bag to the female passenger, Heather Ditton ("Ditton"), who was sitting in the front seat. Sgt. Dodd then saw Ditton pull out the elastic waistband of her pants and place the baggie inside her vagina.

         [¶6] Sgt. Dodd knocked on the passenger window of the van and asked Ditton, "Are you done shoving that?" Id. at 96, 103. Ditton responded, "I'm on my period and I don't have tampons, it's napkins[, ] I swear." Id. at 103. Sgt. Dodd escorted Ditton from the van and Ditton removed the bag from her vagina. Sgt. Dodd observed that the bag contained a white crystal substance, which was later confirmed by lab testing to be methamphetamine.

         [¶7] After Ditton turned over the bag of methamphetamine to Sgt. Dodd, Det. Roberts ordered Leatherman to exit the van. Det. Roberts conducted a pat down of Leatherman and discovered two syringes hidden in Leatherman's pockets. Leatherman informed Det. Roberts that the syringes were from the Lawrence County Needle Exchange Program in which Leatherman participated. Det. Roberts, "a drug recognition specialist, " saw that the syringes contained a liquid residue and had grey caps that indicated that they were from the needle exchange program. Tr. Vol. II at 68.

         [¶8] The officers placed both Leatherman and Ditton in handcuffs and called a drug- sniffing dog to the scene. While sniffing the perimeter of Leatherman's van, the dog gave a positive alert for narcotics three times. The officer conducting the dog sniff observed a syringe sitting on the dashboard underneath a cellular phone. A subsequent search of the vehicle revealed the presence ...


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