Ledcke v. State

• Decision Date: 16 May 1973
• Docket Number: No. 1071S303,1071S303
• Citation: 296 N.E.2d 412,260 Ind. 382
• Parties: James K. LEDCKE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 412

296 N.E.2d 412

260 Ind. 382

James K. LEDCKE, Appellant, v. STATE of Indiana, Appellee.

No. 1071S303.

Supreme Court of Indiana.

May 16, 1973.

John D. Clouse, John C. Cox and Philip H. Hayes, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., for appellee.

HUNTER, Justice.

This is an appeal by James K. Ledcke, appellant (defendant below), from a conviction for possession of marijuana, which at the time of the crime was a violation of the 1935 Narcotics Act as amended (Ind.Ann.Stat. §§ 10--3519 & 10--3520 (1970 Supp.), IC 1971, 35--24--1--1, 35--24--1--2). Appellant was charged by affidavit on September 29, 1970, and entered a plea of not guilty. Trial to a jury commenced on March 17, 1971, and the jury returned a verdict of guilty. On March 30, 1971, the appellant was sentenced to not less than two years nor more than ten years in the Indiana Reformatory, was fined one thousand dollars, and was disenfranchised for two years. Appellant's motion to correct errors was overruled and this appeal followed. ^*

Appellant makes several allegations of error which are as follows:

1. The bailiff in charge of the jury was not sworn as required by law;

2. The evidence was insufficient to support the conviction;

3. Since another person had been convicted of possessing the same marijuana, the matter was res judicata;

4. The affidavit of probable cause for the arrest warrant was insufficient;

5. Appellant could not be convicted under the statute, because it was repealed by the Indiana Code of 1971;

6. The Act under which appellant was convicted was in violation of the due process, because it attempted to define marijuana as a norcotic drug;

7. The Act under which appellant was convicted was invalid, because federal legislation had pre-empted the field of drug abuse;

8. A witness for the State should have been permitted to answer a question posed to him during cross-examination;

9. The State's exhibits should not have been admitted into evidence;

10. The trial court erred in giving certain instructions and in refusing to give other instructions.

Appellant first claims that the bailiff in charge of the jury was not sworn as required by statute. However, affidavits indicate that the bailiff was sworn and also that he did not communicate with the jury nor permit others to communicate with the jury. Additionally, appellant has failed to show how he might have been prejudiced by the alleged failure to swear in the bailiff. We find no merit to appellant's contention.

Appellant's second allegation is that the evidence was insufficient to support a conviction. When reviewing the sufficiency of the evidence, this Court will not weigh the evidence nor determine the credibility of the witnesses. Only that evidence most favorable to the State and the reasonable inferences to be drawn therefrom will be considered. As long as there is substantial evidence of probative value sufficient to establish every material element of the crime the verdict will not be disturbed. Jackson v. State (1971), Ind., 275 N.E.2d 538.

The evidence most favorable to the State is as follows: On September 3, 1970, in the city of Evansville, ten police officers conducted a raid on an apartment pursuant to a search warrant. The search was for marijuana. One of the tenants was on the front porch and he let the officers in. Very heavy smoke permeated the entire apartment and the source of the smoke was found to be two skillets full of green vegetation in the oven. Several officers who participated in the raid and who were experienced with marijuana were of the opinion that, judging by the odor, the smoke was marijuana smoke. The kitchen floor was almost covered with the green vegetation. Also in the kitchen was a duffel bag half filled with the same type of material. Another duffel bag full of the material was found right off the kitchen and just inside the bedroom door. A white plastic bag and a brown paper bag of 'processed' plant life were found in the dining room. There was testimony that in order to process marijuana, it first must be dried either in the sun or in an oven, and then the plant is finely chopped much like tobacco. Chemical and biological tests were conducted on all the substances found at the various spots in the house, and all were shown to be marijuana.

Besides the tenant who was found on the front porch, one person was found in the living room and another was found in the kitchen. The appellant was discovered in the bedroom and was apparently trying to exit through the back door. A search of appellant's person revealed to incriminating evidence. Appellant was not a tenant.

It is clear from this evidence that marijuana was being processed in the house at the time the police entered and extremely large quantities were spread over the floor. Marijuana was being dried in the oven and heavy smoke was found throughout the house. Appellant was found alone in the room where one of the large bags of marijuana was found, and was attempting to flee when apprehended. From these facts the jury was warranted in finding that the appellant was working in concert with the other three persons in the 'manufacture' of marijuana. The statute in force at the time read in part:

'It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, compound or use any narcotic drug . . ..' Ind.Ann.Stat. § 10--3520.

Although appellant was charged with possession and not 'manufacture,' it would be impossible to 'manufacture' the marijuana without at least constructively possessing the marijuana as well. Chief Justice Arterburn has held that one cannot sell narcotics without at least constructively possessing them. See Thompson v. State (1972), Ind., 290 N.E.2d 724. The case of sale and the case of manufacture are analogous.

It is possible in a situation such as the one we have before us that the appellant was merely present on the premises and committed to wrongdoing. However, the activity was so obvious that the jury was entitled to infer that the appellant was involved. The State therefore established a prima facie case from which the jury could find the appellant guilty. If at that point the appellant had an exculpatory explanation or exonerating evidence to explain his presence, he could then present such evidence. Absent this, the evidence would be sufficient to support a conviction on review.

The facts in the case at bar indicating that marijuana was being processed are analogous to the operation of an illegal still for the production of whiskey. In United States v. Gainey (1965), 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658, the Supreme Court of the United States considered the constitutionality of a statute which permits a conviction for illegally operating a still when one is shown to have been at a place where an illegal still is located unless one produces evidence to explain the circumstances of his presence. The Court then approved the following instruction:

'I charge you that the presence of defendants at a still, if proved, with or without flight therefrom, or attempted flight therefrom, if proved, would be a circumstance for you to consider along with all the other testimony in the case. Of course, the bare presence at a distillery and flight therefrom of an innocent man is not in and of itself enough to make him guilty. It is possible under the law for an innocent man to be present at a distillery, and it is possible for him to run when about to be apprehended, and such an innocent man ought never to be convicted, but presence at a distillery, if you think these men were present, is a circumstance to be considered along with all the other circumstances in the case in determining whether they were connected with the distillery or not. Did they have any equipment with them that was necessary at the distillery? What was the hour of day that they were there? Did the officers see them do anything? Did they make any statements?

'It is your duty to explore this case, analyze the evidence pro and con fairly. Presence at a still, together with other circumstances in the case, if they are sufficient in your opinion to exclude every reasonable conclusion except that they were there connected with the distillery, in an illegal manner, . . . carrying on the business as charged . . ., if you believe those things, would authorize you in finding the defendants guilty.

'And under a statute enacted by Congress a few years back, when a person is on trial for . . . carrying on the business of a distiller without giving bond as required by law, as charged in this case, and the defendant is shown to have been at the site of the place . . . where and at the time when the business of a distiller was engaged in or carried on without bond having been given, under the law such presence of the defendant shall be deemed sufficient evidence to authorize conviction, unless the defendant by the evidence in the case any by proven facts and circumstances explains such presence to the satisfaction of the jury.

'Now this does not mean that the presence of the defendant at the site and place at the time referred to requires the jury to convict the defendant, if the defendant by the evidence in the case, facts and circumstances proved, fails to explain his presence to the satisfaction of the jury. It simply means that a jury may, if it sees fit, convict upon such evidence, as it shall be deemed in law sufficient to authorize a conviction, but does not require such a result.' (emphasis added in Gainey)

380 U.S. at 69--70, 85 S.Ct. at 758--759.

Thus, under this statute and instruction, the jury is not required to convict if a defendant fails to explain his presence, but it is enough for the State to avoid a directed verdict and get its case to the jury. Presence at the situs is but one of many circumstances to consider. The instruction must place its emphasis on...