Leatherman v. State

Citation101 N.E.3d 879
Decision Date09 May 2018
Docket NumberCourt of Appeals Case No. 47A04–1711–CR–2711
Parties Jerold W. LEATHERMAN, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
CourtCourt of Appeals of Indiana

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.


[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 of an additional syringe that had been hidden inside a purse located on the passenger side of the vehicle.

[9] On March 1, 2017, the State charged Leatherman with Count I, maintaining a common nuisance, a Level 6 felony; Count II, possession of methamphetamine, as a Level 6 felony;3 and Count III, possession of paraphernalia, as a Class C misdemeanor. On April 17, 2017, the State filed an amended information, which included a habitual offender sentence enhancement. Following Leatherman's May 24 jury trial, the jury found Leatherman guilty on all three counts. Leatherman admitted to his status as a habitual offender. At a sentencing hearing conducted on August 22, Leatherman was sentenced to two years for Count I, two years for Count II, and 60 days for Count III, with the sentences for Counts I and II to run concurrently with no time suspended. One count was enhanced by three years due to Leatherman's habitual offender status. This appeal ensued.

Discussion and Decision
Standard of Review

[10] Leatherman challenges the sufficiency of the evidence to support his convictions for maintaining a common nuisance, as a Level 6 felony, and possessing paraphernalia, as a Class C misdemeanor. Our standard of review of the sufficiency of the evidence is well-settled:

When reviewing the sufficiency of the evidence needed to support a criminal conviction, we neither reweigh evidence nor judge witness credibility. Bailey v. State , 907 N.E.2d 1003, 1005 (Ind. 2009). "We consider only the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence." Id. We will affirm if there is substantial evidence of probative value such that a reasonable trier of fact could have concluded the defendant was guilty beyond a reasonable doubt. Id.

Clemons v. State , 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied . Moreover, "[a] conviction may be based on circumstantial evidence alone so long as there are reasonable inferences enabling the factfinder to find the defendant guilty beyond a reasonable doubt." Lawrence v. State , 959 N.E.2d 385, 388 (Ind. Ct. App. 2012) (citation omitted), trans. denied .

Sufficiency of the Evidence—Maintaining a Common Nuisance

[11] To support Leatherman's conviction for maintaining a common nuisance, the State was required to prove that Leatherman knowingly or intentionally maintained a vehicle to unlawfully use, manufacture, keep, offer for sale, sell, deliver, or finance the delivery of a controlled substance. I.C. § 35–45–1–5(a) and (c). The word "maintain," as used in that statute, does not require that the defendant actually own the vehicle; rather, a defendant "maintains" a vehicle when he exerts control over it. E.g. , Mack v. State , 23 N.E.3d 742, 758 (Ind. Ct. App. 2014), trans. denied .

[12] At trial, the State provided evidence that Leatherman exerted control over the van he was driving, although the van was actually owned by his cousin. The State also provided evidence that, while in the van, Leatherman not only possessed a controlled substance himself, but also handed a bag of methamphetamine to Ditton. Sgt. Dodd testified that he personally witnessed that exchange of the drugs. That was sufficient evidence that Leatherman used the van to unlawfully "deliver" a controlled substance. I.C. § 35–45–1–5(a)(3)(G).

[13] Lovitt v. State , 915 N.E.2d 1040 (Ind. Ct. App. 2009), cited by both parties, is consistent with our holding. In Lovitt , a panel of this court held that the legislature did not intend for the "maintaining a common nuisance" statute to apply to "an offender who has personal use quantities of controlled substance(s) on his or her person or even loose in the vehicle." Id. at 1045. Rather, we held that the statute is intended to apply to "an offender who uses his or her vehicle to facilitate ... delivery ... of a controlled substance." Id. The State provided sufficient evidence that Leatherman is just such an offender.

[14] However, to prove the nuisance was a "common" nuisance, the State must provide evidence that the vehicle was used on more than one occasion for the unlawful delivery of a controlled substance. See Zuniga v. State , 815 N.E.2d 197, 200 (Ind. Ct. App. 2004) (holding "the term ‘common nuisance’ as used in the statute requires proof of a continuous or recurrent violation"). This requirement is apparent from the judicial and legislative history of the crime of maintaining a common nuisance. In Wells v. State , the court described what constitutes a common nuisance, and explained that inherent in this classification is "a notion of continuous or recurrent violation.... The words ‘maintains’ and ‘maintaining’ denote continuous or recurrent acts approaching permanence." 170 Ind.App. 29, 351 N.E.2d 43, 46 (1976). The court held that, for the purposes of maintaining or visiting a common nuisance, the statute "requires a showing of more than an isolated or casual instance of the prohibited activity." Id. at 47.

[15] In 1998, however, the General Assembly amended the common nuisance statute and added introductory language stating: "A person who knowingly or intentionally maintains a building, structure, vehicle, or other place that is used one (1) or more times ..." I.C. § 35–48–4–13(b) (2008) (emphasis added). Under the 2008 version of the statute, there was no requirement for ongoing instances of prohibited activity; as the Seventh Circuit noted in Wheeler v. Lawson , the 2008 version of the statute abrogated Wells . 539 F.3d 629, 635 n.7 (7th Cir. 2008).

[16] The "one or more times" language remained in the statute for several years, until the statute was again updated in Indiana Code Section 35–45–1–5 (2016) to remove that language. 2016 Legis. Serv. P.L. 59–2016, §§ 7, 8. The 2016 amendment of the statute is significant in that it evinces a conscious desire on the part of our Legislature that the common nuisance statute not be applied to isolated instances of prohibited activity. As our Supreme Court has noted,

We have stated on numerous occasions that [a] fundamental rule of statutory construction is that an amendment changing a prior statute indicates a legislative intention that the

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