Pruitt v. State

• Decision Date: 31 July 1990
• Docket Number: No. 35A02-8808-CR-00316,35A02-8808-CR-00316
• Citation: 557 N.E.2d 684
• Parties: Patricia A. PRUITT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 684

557 N.E.2d 684

Patricia A. PRUITT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 35A02-8808-CR-00316.

Court of Appeals of Indiana Second District.

July 31, 1990.

Rehearing Denied Sept. 17, 1990.

Frank E. Spencer, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Danielle Sheff, Deputy Atty. Gen., Indianapolis, for appellee.

SHIELDS, Presiding Judge.

Patricia A. Pruitt appeals her conviction of five counts of professional gambling, in violation of IC 35-45-5-3 (1988), and one count of promoting professional gambling, in violation of IC 35-45-5-4(a) (1988), all class D felonies.

We affirm.

FACTS

From February 14, 1988 through March 2, 1988 Pruitt managed a bingo parlor in Huntington County at which bingo games with cash prizes were played and tickets for other games of chance were sold. Pruitt was originally charged with seven counts of professional gambling, for bingo games held on February 14, 17, 19, 20, 21, 28, and March 2, 1988, and with seven counts of promoting professional gambling on the same dates.

Pruitt moved to dismiss counts one through six of each offense on the ground the offenses were continuing and, therefore, merged into count seven of each offense. She also sought to dismiss the seven professional gambling counts, claiming they were the result of selective enforcement in violation of her equal protection rights. The State subsequently dismissed the seven promoting gambling counts after filing an eighth count charging Pruitt with promoting gambling, "[f]rom and after the 14th day of February, 1988 and through the 2nd day of March, 1988." Record at 25. The court then denied Pruitt's motion to dismiss the professional gambling counts. However, prior to trial, the State dismissed the professional gambling counts relating to February 21 and February 28 (counts five and six).

Pruitt was tried before a jury on five counts of professional gambling (February 14, 17, 19, 20, and March 2, 1988), and one count of promoting professional gambling (February 14 through March 2, 1988). She was convicted of all six counts. The court sentenced her to concurrent terms of two years on each offense and fined her $10,000 for each offense; she appeals.

ISSUES

1. Whether the trial court erred in denying Pruitt's motion to dismiss all but one count of professional gambling on the grounds there was only one continuing offense.

2. Whether the trial court erred in denying Pruitt a hearing on her motion to dismiss the pending charges on the ground the charges were the result of selective prosecution.

3. Whether the trial court erred in instructing the jury to disregard Pruitt's claim of selective prosecution.

4. Whether the trial court erred in refusing a tendered instruction quoting the privileges and immunities clause of the Indiana Constitution.

5. Whether the trial court erred in refusing tendered instructions concerning statutory construction.

6. Whether the convictions of professional gambling are contrary to law and not supported by sufficient evidence.

7. Whether the trial court erred in assessing $10,000 fines on each of the professional gambling counts.

DISCUSSION

I.

Pruitt's first argument is her five professional gambling convictions, each concerning a single day during a period of less than three weeks, represent a single continuing offense and, therefore, all but one of those counts should have been dismissed upon her motion. She cites three Indiana cases in support of her position, Freeman v. State (1889), 119 Ind. 501, 21 N.E. 1101; State v. Lindley (1860), 14 Ind. 430; and Senst v. State (1974), 162 Ind.App. 357, 319 N.E.2d 663; and claims that because "[t]ime is not the essence of the offense ... and ... a conviction might have been obtained ... under any of the Counts by proof of the allegations as to any date within the statute of limitations," the five convictions cannot all stand. Appellant's Brief at 9.

State v. Lindley involved a charge of keeping a gaming house, an offense which our supreme court held "may be a continuous act," depending on whether there was "but one continuous keeping." 14 Ind. at 430 (emphasis added). However, because evidence presented at trial could establish multiple offenses if the State proved an interruption and resumption of the "keeping" occurred, the Lindley court reversed the trial court's quashing of the pending charge and ordered the charge reinstated. By so doing, the supreme court implicitly concluded the gravamen of the "keeping" offense was the continuous nature of the prohibited conduct. That same court explained in a subsequent decision:

The words, "common nuisance" as used in [Section 20 of the Prohibition Act] carry with them a notion of continuous or recurrent violation....

The words "maintains" and "maintaining" denote continuous or recurrent acts approaching permanence. We therefore conclude that the case is analogous to those of keeping a gaming house, and is governed by the rule laid down in State v. Lindley (1860), 14 Ind. 430, and Nace v. State (1889), 117 Ind. 114, 19 N.E. 729, to the effect that the keeping of such a house is a continuous act, and that all the time a house or place is thus kept, prior to the prosecution, constitutes but one indivisible offense, punishable by a single prosecution.

Keeth v. State (1923), 193 Ind. 549, 550-51, 139 N.E. 589, 590 (citations omitted).

Professional gambling is defined by statute as follows:

A person who knowingly or intentionally:

(1) engages in pool-selling;

(2) engages in bookmaking;

(3) maintains, in a place accessible to the public, slot machines, one-ball machines or variants thereof, pinball machines that award anything other than an immediate and unrecorded right of replay, roulette wheels, dice tables, or money or merchandise pushcards, jars, or spindles;

(4) conducts lotteries, gift enterprises, or policy or numbers games, or sells chances therein;

(5) conducts any banking or percentage games played with cards, dice, or counters, or accepts any fixed share of the stakes therein; or

(6) accepts, or offers to accept, for profit, money or other property risked in gambling;

commits professional gambling, a class D felony.

IC 35-45-5-3.

A single transaction can support Pruitt's convictions of subsection (4) professional gambling ¹ because the gravamen of the offense, in contrast to professional gambling as defined in subsection (3), is not its continuous nature. Unlike keeping a gambling house, as that offense was defined in Indiana at the time of the Lindley decision, the form of professional gambling with which Pruitt was charged is an offense which need not occur over a period of time but rather occurs with each lottery incident.

The other cases Pruitt cites are also unavailing. Freeman v. State (1889), 119 Ind. 501, 21 N.E. 1101, involves two indictments brought under a statute providing that " '[w]hoever keeps a house of ill-fame, resorted to for the purpose of prostitution or lewdness,' etc., shall be fined, etc." Id. at 502, 21 N.E. at 1102. The court held the two indictments charged merely "the continuous keeping of the same house," and thus a conviction on one count barred prosecution on the other. Id. at 503, 21 N.E. at 1102. Pruitt apparently cites Freeman for the following statement:

"The test is, whether, if what is set out in the second indictment had been proved under the first, there could have been a conviction; when there could, the second can not be maintained; when there could not, it can be." When tested by this rule, the two offenses charged against the defendant are the same.

Id. (quoting 1 Bishop on Criminal Law Sec. 1052). While this statement is true, it does not apply to a situation in which the charges refer to two distinct violations, i.e., the gravamen of the particular offense is not its continuous nature. Further,

[t]he precise manner in which an indictment is drawn cannot be ignored, because an important function of the indictment is to ensure that, "in case any other proceedings are taken against [the defendant] for a similar offense, ... the record [will] sho[w] with accuracy to what extent he may plead a former acquittal or conviction."

Sanabria v. United States (1978), 437 U.S. 54, 65-66, 98 S.Ct. 2170, 2179, 57 L.Ed.2d 43 (quoting Cochran v. United States (1895), 157 U.S. 286, 290, 15 S.Ct. 628, 630, 39 L.Ed. 704) (changes in original). In the present case, the separate counts of the information contain specific dates for each violation, thereby clearly defining several discrete occurrences of professional gambling. (Although the allegations in each count state "on or about" a particular date, we note that the jury was instructed that the State was obligated to prove that the violations occurred "on the date specified in each information." Supp. Record at 18.)

Pruitt also relies upon Senst v. State (1975), 162 Ind.App. 357, 319 N.E.2d 663. In Senst, this court affirmed a conviction of keeping a house of ill fame over the defendant's claimed error in the admission of testimony of arrests which occurred prior to the beginning of the period specified in the charging instrument. Following Lindley and Freeman, the Senst court held the evidence was properly admitted "by reason of the continuing nature of the offense of keeping a house of ill fame." 319 N.E.2d at 668. Senst adds nothing to Pruitt's argument.

Thus, we conclude Pruitt misstates the definition of a continuing offense. Under her definition, a defendant charged with committing two separate acts of battery against the same victim within a single week could be charged with only one offense. Properly, a continuing offense is

a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy; a breach of the criminal law, not terminated by a single act or fact, but subsisting for a definite period and intended to cover or apply to...