Crawford v. State

• Decision Date: 29 January 1987
• Docket Number: No. 49A04-8604-CR-102,49A04-8604-CR-102
• Citation: 502 N.E.2d 1361
• Parties: Bobby CRAWFORD and Cynthia Wilburn, Appellants (Defendants Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1361

502 N.E.2d 1361

Bobby CRAWFORD and Cynthia Wilburn, Appellants (Defendants Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 49A04-8604-CR-102.

Court of Appeals of Indiana,

Fourth District.

Jan. 29, 1987.

Rehearings Denied Mar. 20, April 8, 1987.

David R. Hennessy, Indianapolis, Ind. for appellants.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, Ind. for appellee.

YOUNG, Judge.

Bobby Crawford and Cynthia Wilburn appeal their convictions for possession of marijuana. IND.CODE 35-48-4-11. They raise the following issues for our consideration:

1) Did the trial court err in convicting them of possession of marijuana when the information charged them with dealing in marijuana, IND.CODE 35-48-4-10, and maintaining a common nuisance, IND.CODE 35-48-4-13?

2) Is the evidence sufficient to sustain the convictions for possession of marijuana? ¹

We reverse.

Pursuant to a valid search warrant, the police seized over thirty grams of marijuana from Crawford and Wilburn's residence. The two were charged with dealing in marijuana and maintaining a common nuisance. They waived their right to a jury trial, and the trial court convicted them of possession of marijuana. ²

Crawford and Wilburn contend the trial court erred in convicting them of a crime with which they were not charged. The state counters with the contention that, although it did not charge Crawford and Wilburn with possession, the fact that possession is an inherently included offense of dealing makes it unnecessary to separately charge possession. ³

Until recently, if an information was sufficient to charge a greater offense, it was by necessity sufficient to charge an inherently included lesser offense. See, Roddy v. State (1979), 182 Ind.App. 156, 394 N.E.2d 1098. Recent decisions, however, indicate our supreme court is taking a more restrictive approach in determining whether an information sufficiently charges a defendant with a lesser included offense.

In Sills v. State (1984), Ind., 463 N.E.2d 228, the supreme court held that the trial court properly refused the defendant's instruction on the lesser offense of involuntary manslaughter since the information clearly indicated the state sought only to charge him with murder. The court reasoned:

In Jones v. State, (1982) Ind., 438 N.E.2d 972, we held that 'the state through its drafting can foreclose as to the defendant the tactical opportunity to seek a conviction for a lesser offense. The point is that absolute discretion rests in the state to determine the crime(s) with which a defendant will be charged.' Id., 438 N.E.2d at 975.

Sills, supra at 235.

The supreme court reaffirmed its position in Compton v. State (1984), Ind., 465 N.E.2d 711, upholding the refusal of an instruction on the lesser included offenses of criminal trespass and criminal conversion when the information only charged the defendant with burglary and theft. The court noted that the information quoted the theft and burglary statutes almost verbatim. Compton, supra at 713.

In Sills, supra, and Compton, supra, the supreme court was concerned that injecting an instruction on the lesser offense would allow the jury to reach a compromise verdict. The policy against compromise verdicts applies even where the judge is the trier of fact. The state, through artful draftsmanship, "can foreclose any opportunity by the defendant to seek conviction for a lesser offense," Dorsey v. State (1986), Ind., 490 N.E.2d 260, 268, and thereby prevent the defendant from obtaining an instruction on an uncharged lesser included offense. In the present case, the state asserts that a defendant may be convicted of included crimes with which he was not charged. This stance would create an untenable result since the defendant could be convicted of an uncharged crime but not be able to have the jury instructed on the crime. Because the state has sole control over the crimes with which the defendant will be charged, it should be precluded, as is the defendant, from seeking consideration of a crime not charged.

Due process requires that defendants be notified of the charges against them. Crawford and Wilburn were charged with dealing. They therefore could prepare their defense by focusing on the state's inability to prove the element of intent to deliver. Nothing in the information alerted them to the possibility of a conviction on possession. Thus, the defendants would not necessarily have given due attention to the possession issue since they only needed to show the state's failure to prove intent to avoid conviction for dealing, and the crime of possession was not charged.

In Slayton v. State (1984), Ind.App., 471 N.E.2d 1154, also a bench trial, we held that the trial court erred in convicting the defendant of theft, when he was charged in the information with robbery.

The rule seems to be ... that when the prosecutor charges the greater offense in language closely tracking the statutory definition of that offense and the prosecutor does not insert additional language showing an intent to charge any lesser offenses, the information must be held to charge only the greater offense.

Slayton, supra at 1157. In O'Grady v. State (1985), Ind.App., 481 N.E.2d 115, 119, we held that the prosecution was limited to the offense of dealing in heroin since the language used in the information closely tracked the language of the dealing statute and there was no language to indicate the prosecutor intended to charge the defendant with possession.

The information in this case specifically states that it is an "[i]nformation for Count I, Dealing in Marijuana[,] I.C. 35-48-4-10, Class D [and] Count II, Maintaining A Common Nuisance, I.C. 35-48-4-13(b), Class D felony." It does not mention IC 35-48-4-11, the statutory section which makes possession a crime. In addition, the language of the information closely tracks the language of the dealing statute. IC 35-48-4-10 provides:

(a) A person who:

(1) knowingly or intentionally manufacturers [sic] or delivers marijuana, hash oil, or hashish, pure or adulterated; or

(2) possesses, with intent to manufacture or deliver, marijuana, hash oil, or hashish, pure or adulterated;

commits dealing in marijuana, hash oil, or hashish, a Class A misdemeanor.

(b) However, the offense specified in subsection (a) is:

(1) a Class D felony if:

(A) the recipient or intended recipient is under eighteen (18) years of age;

(B) the amount involved is more than thirty (30) grams but less than ten (10) pounds of marijuana or two (2) grams but less than three hundred (300) grams of hash oil or hashish; or

(C) the person has a prior conviction of an offense involving marijuana, hash oil, or hashish; and

(2) a class C felony if the amount involved is ten (10) pounds or more of marijuana or three hundred (300) or more grams of hash oil or hashish. (Emphasis added.)

The charging information provides that Crawford and Wilburn

did unlawfully and knowingly possess, with intent to deliver, a Controlled Substance, to-wit: MARIJUANA, of an aggregate weight of MORE THAN THIRTY (30) GRAMS, and were not authorized by any law of the United States of America or of the State of Indiana to have said Controlled Substance in their possession, all of which is contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Indiana. (Emphasis added.)

The absence of variance between the language used in the information and the language of subsections (a)(2) and (b)(1)(B) of the dealing statute clearly shows that Crawford and Wilburn were charged with dealing. There was no additional language or count notifying them of the prosecutor's intent to charge them with the offense of possession. ⁴ The state, in its discretion, could have charged them with that crime. It did not do so; therefore the conviction for possession cannot stand. Accordingly, we reverse and remand with instructions to enter a judgment of acquittal.

CONOVER, P.J., dissents with separate opinion.

MILLER, J., concurs.

CONOVER, Presiding Judge, dissenting.

I respectfully dissent.

Recently, our Supreme Court reaffirmed the long standing doctrine concerning convictions for lesser included offenses. In Maynard v. State (1986), Ind., 490 N.E.2d 762, Justice Dickson writing for a unanimous court, said

Defendant contends he was convicted of an offense not properly includable within the criminal conduct charged. Indiana law recognizes two types of included offenses: First the inherently included offense which is necessarily committed in the course of committing the greater offense: and, second, those offenses "committed by reason of the manner in which the greater offense was committed," if within the factual allegations contained in the charging instrument. Jones v. State (1982), Ind., 438 N.E.2d 972.

Maynard, supra, 490 N.E.2d at 763.

This case involves the second type of included offense wherein the greater offense is committed in a manner which necessarily includes commission of the lesser offense. Here, the charging information states * * * on or about the 5th day of March, A.D. 1985, at and in the County of Marion in the State of Indiana, did unlawfully and knowingly possess, with the intent to deliver, a Controlled Substance, to-wit: MARIJUANA, of an aggregate weight of MORE THAN THIRTY (30) GRAMS, ... (Emphasis added).

(R. 5).

IND.CODE 35-48-4-10 (dealing in marijuana, hash oil, or hashish) states:

(a) A person who:

(1) knowingly or intentionally manufactures or delivers marijuana, hash oil, or hashish, pure or adulterated; or

(2) possesses, with intent to manufacture or deliver, marijuana, hash oil, or hashish, pure or adulterated;

commits dealing in marijuana, hash oil, or hashish, a Class A misdemeanor. (Emphasis added).

IC 35-48-4-10.

IND.CODE 35-48-4-11 (the marijuana possession statute) states in pertinent part:

A person who:

(1) knowingly or intentionally possesses (pure...