Mayotte v. State, 3--976A215

• Decision Date: 17 February 1977
• Docket Number: No. 3--976A215,3--976A215
• Parties: James E. MAYOTTE, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 34

360 N.E.2d 34

172 Ind.App. 252

James E. MAYOTTE, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3--976A215.

Court of Appeals of Indiana, Third District.

Feb. 17, 1977.

Transfer Denied June 13, 1977.

Harriette Bailey Conn, Public Defender, Bobby Jay Small, David P. Freund, Indianapolis, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Walter F. Lockhart, Deputy Atty. Gen., Indianapolis, for appellee.

HOFFMAN, Judge.

James E. Mayotte appeals from his conviction pursuant to IC 1971, 35--24.1--4.1--15 (Burns Code Ed.), of unlawfully and knowingly visiting a dwelling where marijuana was used. ¹ After being sentenced to serve six months with all but thirty days suspended, Mayotte filed his motion to correct errors and perfected this appeal. He urges as error that there was insufficient evidence to show that he 'visited' the premises according to the charging information or that he had knowledge that a controlled substance was used therein.

When, as here, the sufficiency of the evidence to support a conviction is raised, this court looks at that evidence most favorable to the State together with all reasonable inferences to be drawn therefrom. A verdict will not be overturned if there is substantial probative evidence from which the trier of fact could reasonably infer that the defendant was guilty beyond a reasonable doubt. Lindsey v. State (1976), Ind., 341 N.E.2d 505.

In this context the record reveals that Mayotte was arrested after a lawful search was made disclosing contraband in the house where he stayed with his brother 'Doug' and his sister Karen. The searching officers discovered a bag of marijuana stems in the garbage container located in 'Doug's' room. A 'Thai stick' of marijuana was found in the kitchen and paraphernalia was discovered in Karen's bedroom. Only appellant Mayotte's room was devoid of incriminating evidence.

Appellant first questions the propriety of the charging information relative to the evidence adduced at trial. Such information charged only that Mayotte 'did then and there unlawfully and knowingly visit a dwelling.' (Emphasis added.) It did not charge that the defendant knowingly visits or maintains. Accordingly Mayotte argues that since he lived at the residence and was paying 95% of the rent for the house from his unemployment checks, he could not be found to have visited what he purports to be his own home.

Appellant's argument mistakenly assumes that if the evidence showed that he partially maintained the residence it could not simultaneously show that he visited a dwelling. However, in the context of the remainder of the statute it is clear that the word 'visits' means to come or go to a place generally. It is not confined to a concept of staying as a guest. Thus, by being in the place charged at the time charged Mayotte visited a dwelling within the meaning of the statute. Roberts v. State (1900), 25 Ind.App. 366, 58 N.E. 203.

Moreover, the evidence discloses a visit to a dwelling 'which (was) used by a person for the purpose of unlawfully using a controlled substance.' Since significant...