Marshall v. State, 2-385A58

• Court: Indiana Appellate Court
• Writing for the Court: SHIELDS; SULLIVAN; MILLER
• Citation: Marshall v. State, 493 N.E.2d 1317 (Ind. App. 1986)
• Decision Date: 19 June 1986
• Docket Number: No. 2-385A58,2-385A58
• Parties: Leon MARSHALL, Appellant, (Defendant Below), v. STATE of Indiana, Appellee, (Plaintiff Below).

Page 1317

493 N.E.2d 1317

Leon MARSHALL, Appellant, (Defendant Below), v. STATE of Indiana, Appellee, (Plaintiff Below).

No. 2-385A58.

Court of Appeals of Indiana Second District.

June 19, 1986.

Theodore D. Wilson, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.

SHIELDS, Judge.

Leon W. Marshall appeals his conviction of possession of a controlled substance (marijuana) as a class D felony ¹ and the determination he is a habitual substance offender. ² He asserts the conviction is erroneous because 1) it is not sustained by sufficient evidence of his knowing possession, and his motion for mistrial was erroneously denied. He also claims error in the adjudication he is a habitual substance offender, contending the charged prior convictions are not substance offenses. ³ We affirm in part and reverse in part.

Marshall walked into some bushes by a littered alleyway, bent down and picked up a brown paper bag. He exited the bushes and started in the direction of his parked automobile when he noticed he was under observation by Officer Stan Pratt of the Indianapolis Police Department. Marshall then threw the bag back into the bushes. Officer Pratt arrested Marshall and retrieved the bag. It contained 181.6 grams of marijuana.

I.

Marshall argues the record is devoid of evidence he either knowingly possessed the marijuana contained in the bag or had exclusive possession of the bag from which his knowledge could be inferred. Addressing these contentions in reverse order Marshall's denial of exclusive possession borders on the frivilous. The undisputed evidence reveals Marshall had actual and exclusive possession of the bag on his person. Further, Marshall's selection and retrieval of the particular bag in question from a generally littered area, coupled with his abrupt abandonment of the bag upon observing the watching police officer constitutes sufficient evidence of probative value from which the probative value from which the fact finder could and did reasonably conclude beyond a reasonable doubt, Marshall knowingly possessed the bag and its contents. See Garner v. State (1975), 163 Ind.App. 573, 325 N.E.2d 511.

II.

Marshall claims trial court error in its denial of his motion for mistrial based upon prosecutorial misconduct. During opening statements, the Deputy Prosecutor referred to Marshall's answer, "What sack" in response to the question, "Whats [sic] in the sack" propounded at the scene by the arresting officer. The answer previously had been ordered suppressed by the trial court pursuant to Marshall's motion.

First, the issue is not preserved for appeal because Marshall failed to make a contemporaneous objection and motion for mistrial.. Dack v. State (1983), Ind.App., 457 N.E.2d 600. See Cox v. State (1985), Ind., 475 N.E.2d 664 (failure to object in a timely manner to prosecutorial comments made during voir dire and closing argument results in failure to preserve alleged error for appellate review). In any event, when the motion for mistrial was finally made, the trial court admonished the jury statements and remarks of counsel were not evidence. The jury was similarly instructed by a court-given preliminary instruction. Such action presumably cured any prejudice to Marshall inherent in the state's, misconduct unless, despite the curative measures, the misconduct was such as to place Marshall in grave peril. Marshall fails to make a convincing showing or argument the state's misconduct probably impacted upon the verdict. See generally Davis v. State (1981) 275 Ind. 509, 418 N.E.2d 203.

III.

Marshall argues the trial court erred in denying his motion for judgment on the evidence at the conclusion of the habitual substance offender proceeding. He argues the prior convictions introduced in support of the sentence enhancement were insufficient because they were possession offenses. The state replies possession of marijuana is an "abuse" and or "use" within the meaning of the enhancement statute, Ind.Code Sec. 35-50-2-10 (1983).

The habitual substance offender statute in effect when Marshall was tried provides in pertinent part:

" 'Substance offense' means a Class A misdemeanor or Class D felony in which the use, abuse, delivery, transportation, or manufacture of alcohol or drugs is a material element of the crime.

(b) The state may seek to have a person sentenced as an habitual substance offender for any substance offense by alleging, on a page separate from the rest of the charging instrument, that the person has accumulated two (2) prior unrelated substance offense convictions."

I.C. Sec. 35-50-2-10 (emphasis supplied). On its face this statutory definition of the term "substance offense" does not include the crime of possession of alcohol or drugs although "use, abuse, delivery, transportation, or manufacture" can not exist without possession. But possession, also a crime is not mentioned. "[W]hen the legislature provides a definition of a word, courts are bound by it, regardless of other possible meanings attributable to the word." Ware v. State (1982), Ind.App., 441 N.E.2d 20, 23, tran. denied. See also Department of State Revenue v. Crown Co. (1952), 231 Ind. 449, 109 N.E.2d 426; State v. Grange (1929), 200 Ind. 506, 165 N.E. 239. Indeed, some authorities have held "[a] statutory definition which declares what a term 'means' ... excludes any meaning that is not stated." Colautti v. Franklin (1979), 439 U.S. 379, 392, 99 S.Ct. 675, 684, 58 L.Ed.2d 596 (quoting 2A C.D. Sands, Sutherland Staturoty Construction Sec. 47.07 (4th ed. Supp.1978)).

This habitual substance offender statute is plainly penal in nature and must be construed against the State. Pennington v. State (1981), Ind., 426 N.E.2d 408; Cape v. State (1980), 272 Ind. 609, 400 N.E.2d 161. Penal statutes "cannot be enlarged by construction, implication, or intendment beyond the fair meaning of the language used." Gore v. State (1983), Ind.App., 456 N.E.2d 1030, 1033.

Not only must penal statutes...