Howard v. State

• Decision Date: 30 June 1981
• Docket Number: No. 3-1080A316,3-1080A316
• Citation: 422 N.E.2d 440
• Parties: Donnie HOWARD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 440

422 N.E.2d 440

Donnie HOWARD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 3-1080A316.

Court of Appeals of Indiana, Third District.

June 30, 1981.

Kenneth R. Watson, Williamsport, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Aimee L. Kolze, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

HOFFMAN, Presiding Judge.

Defendant-appellant, Donnie Howard (Howard) appeals from his convictions for criminal conspiracy, a class D felony; possession of marijuana, a class A misdemeanor; and visiting a common nuisance, a class B misdemeanor. On May 16, 1980 he was sentenced to concurrent terms of two years, one year and six months respectively.

On appeal, defendant presents four issues for consideration:

(1) whether the trial court erred in admitting testimony of unrelated criminal conduct of defendant;

(2) whether the trial court erred in failing to merge defendant's conviction for possession with his conviction for conspiracy or in failing to merge defendant's conviction for visiting a common nuisance with either the possession conviction or the conspiracy conviction;

(3) whether the trial court erred in denying defendant's motion for a directed verdict (judgment on the evidence) on the conspiracy charge; and

(4) whether the trial court erred in failing to weigh the evidence when it denied defendant's motion to correct errors.

The record discloses that early in the afternoon of June 29, 1979 Officer William Peevler and a police informant went to the residence of William "Bub" Knipe, a house trailer in West Lebanon, Indiana, for the purpose of purchasing marijuana. On their arrival, Peevler and the informant met with Howard, Knipe and four other persons. Since most of the group was unfamiliar with Peevler, some preliminary discussion took place before Peevler was permitted to join the others in the trailer. When Peevler entered the trailer, he testified that he heard the defendant offer to trade Knipe two bags of marijuana for Knipe's stereo. Knipe refused the offer and the defendant then removed a plastic bag containing marijuana from his shirt pocket and rolled a marijuana cigarette. The cigarette was lit and passed around the room. After almost everyone, including Howard, smoked the marijuana cigarette, the informant asked Knipe if he had a half pound of marijuana to sell. Knipe replied that he did not but that he did have two bags which the informant could purchase. Knipe's wife then removed two bags from a kitchen cupboard which were later found to contain 44.1 grams of marijuana. When the informant received the two bags, he took out $70 in cash which was handed to Knipe. Knipe took one of the bills and handed it to the defendant. When the transaction was completed, the informant asked the defendant if he could buy a half pound of marijuana from the defendant. Howard answered that the informant would have to check with Knipe because Knipe took care of all of his business. The defendant then got up to leave and told Knipe to contact him that night at 10:00 P.M. and he would probably have a half pound by then.

Defendant's first contention on appeal is that the trial court erred when it permitted Officer Peevler to testify that he heard the defendant offer to trade two bags of marijuana for Knipe's stereo. Defendant argues that this is testimony of criminal conduct unrelated to the crime charged and that it is therefore inadmissible as evidence of defendant's guilt. He further maintains that none of the recognized exceptions to the rule of inadmissibility apply here.

In general, evidence of an accused's criminal conduct unrelated to the crime charged, is inadmissible to show the guilt of the accused.

Armstrong v. State (1980), Ind., 412 N.E.2d 1207; Montgomery v. State (1980), Ind., 412 N.E.2d 793. Such evidence is irrelevant to the guilt or innocence of a defendant and serves only to prejudice the defendant and mislead the jury. Lawrence v. State (1972), 259 Ind. 306, 286 N.E.2d 830. However, evidence of unrelated criminal activity may be used, for example, to show intent, Choctaw v. State (1979), Ind., 387 N.E.2d 1305; guilty knowledge, Vandeveer v. State (1971), 256 Ind. 509, 269 N.E.2d 865; Coker v. State (1980), Ind.App., 399 N.E.2d 857; identity, Cobbs v. State (1975), 264 Ind. 60, 338 N.E.2d 632; and common scheme or plan, Henderson v. State (1980), Ind., 403 N.E.2d 1088. In such cases, the overriding interest of the State in arriving at the truth prevails over any tendency of the evidence to prejudice the defendant. Lawrence, 259 Ind. at 310, 286 N.E.2d at 833. Evidence of unrelated criminal activity which is competent and relevant to a fact in issue is not inadmissible merely because it tends to show guilt of another crime. Maldonado v. State (1976), 265 Ind. 492, at 495, 355 N.E.2d 843, at 846.

The testimony here at issue was properly admitted into evidence under the guilty knowledge exception. Guilty knowledge must be shown in order to convict an accused of marijuana possession. IC 1971, 35-48-4-11(1) (1980 Burns Supp.) states that one is illegally in possession of marijuana only when one "knowingly or intentionally" possesses it. Certainly testimony that Howard offered to trade two bags of marijuana for Knipe's stereo is relevant to show that the defendant knowingly possessed the marijuana. Therefore, the trial court correctly admitted that testimony into evidence. ¹

Howard's second argument is that his possession conviction should be merged with his conspiracy conviction. He also contends that his conviction for visiting a common nuisance should be merged with either the possession or the conspiracy conviction.

The "merger doctrine" was the subject of somewhat extensive discussion in Elmore et al. v. State (1978), 269 Ind. 532, 382 N.E.2d 893. In that case, the Supreme Court made it clear that merger is no longer an independent doctrine, and analysis of whether convictions should be merged must be based on double jeopardy principles. The focus is on whether the offenses charged are the same and not whether they arise from the same act. Elmore, 269 Ind. at 539, 382 N.E.2d at 897; see, McFarland v. State (1979), Ind.App., 384 N.E.2d 1104. The fact that the offenses arise from the same act is only the first step in the analysis and merely informs the court of a potential problem. Elmore, 269 Ind. at 539, 382 N.E.2d at 897. Thus, if the offenses charged grow out of the same act, one must then determine if the offenses are the same. To make this determination one must decide whether each offense charged requires proof of an additional fact which the other does not. Id. at 534, 382 N.E.2d at 895 (adopting the test of Blockburger v. United States (1932) 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306). Where each offense requires proof of an element not required by the other offense, the offenses are different and cannot be merged. Applying Elmore to the facts of the case at hand, merger was not applicable.

Howard's possession conviction should not be merged with the conspiracy conviction. First, the two convictions do not even arise from the same act. The possession charge was based on the defendant's possession of marijuana while he was at Knipe's trailer and the conspiracy charge is based on the sale of 44.1 grams of marijuana to the police informant. Hence, the first hurdle of Elmore is not met. Second, even if the convictions had arisen from the same act, possession of marijuana and conspiracy are not the same offense. The central element of a conspiracy is an agreement between two or more persons, Woods v. State (1980), Ind., 413 N.E.2d 572, and an agreement is not required for convictions of marijuana possession. Possession of marijuana, on the other hand, requires that the accused knowingly possess the marijuana, IC 1971, 35-48-4-11(1), which element need not be shown to prove a conspiracy. As a result, possession of marijuana and conspiracy cannot be merged. ²

Defendant's conviction for visiting a common nuisance should also not be merged with his possession or conspiracy conviction. Visiting a common nuisance requires that an accused knowingly visit a building that is used to unlawfully use a controlled substance. IC 1971, 35-48-4-13(a) (Burns 1979 Repl.). Neither possession nor conspiracy requires visitation. Furthermore, visiting a common nuisance does not require that an accused possess marijuana nor need an agreement be proven. Hence, visiting a common nuisance and possession each require the showing of a fact that the other does not. In the same way, visiting a common nuisance and conspiracy each require proof of an element that the other does not. Consequently,...