Bass v. State
| Decision Date | 18 January 1988 |
| Docket Number | No. 34A04-8701-CR-10,34A04-8701-CR-10 |
| Citation | 517 N.E.2d 1238 |
| Parties | Lori A. BASS and Johnny R. Snow, Appellants (Defendants Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
In this court's original opinion, we reversed Bass' and Snow's convictions on the basis that they were not supported by sufficient evidence. 512 N.E.2d 460. In considering whether there was sufficient evidence to infer that Bass and Snow knew that the residence they visited was used for the unlawful use of controlled substances, we stated:
Although we must look to the evidence most favorable to the judgment and the reasonable inferences to be drawn therefrom, we must also consider the uncontroverted evidence favorable to Bass and Snow.
Id. at 464 (). In its petition for rehearing, the state contends that considering uncontradicted evidence is improper when reviewing sufficiency claims even though it is to be considered when reviewing determinations which are based upon the totality of the circumstances. See Whitt v. State (1977), 266 Ind. 211, 361 N.E.2d 913. We agree with the state on this point and grant its petition for the limited purpose of correcting the erroneous statement. The omission of the uncontradicted evidence in this case, however, does not alter the result reached by this court.
The uncontradicted evidence related to whether Bass and Snow knew that Cullison's residence was used for the unlawful use of controlled substances. We stated we could not infer such knowledge from the distinctive odor of burning marijuana because the uncontradicted testimony was that none had been smoked on the evening Bass and Snow were present. We further stated that knowledge could not be inferred from Bass and Snow seeing the contents of "paraphernalia" which was on the coffee table because the uncontradicted testimony of Bass was that many items were on the table and that the only item she saw was the pair of scissors which she associated with cut-out coupons. The omission of this uncontradicted testimony, however, does not result in an inference that there was a high probability Bass and Snow knew that the residence was used for the unlawful use of controlled substances.
The state never introduced evidence that the odor of burning marijuana was present. The uncontradicted evidence negating its presence therefore was unnecessary. The absence of this evidence, however, distinguishes this...
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...the state must prove that the defendant knew the residence was used for the unlawful use of controlled substances. Bass v. State, 517 N.E.2d 1238, 1239–40 (Ind.Ct.App.1988) (per curiam). The state must also prove that the residence has been used for the unlawful use of controlled substances......
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