Pruitt v. State, No. 1175A13

• Docket Nº: No. 1175A13
• Citation: 166 Ind.App. 67, 333 N.E.2d 874
• Case Date: September 23, 1975

Page 874

333 N.E.2d 874 166 Ind.App. 67 Mark A. PRUITT et al., Appellants (Defendants below),
v.
STATE of Indiana, Appellee (Plaintiff below). No. 1175A13. Court of Appeals of Indiana, First District. Sept. 23, 1975.

[166 Ind.App. 68]

Page 875

William B. Olsen, Indianapolis, for appellants.

Theodore L. Sendak, Atty. Gen., Indianapolis, for appellee.

LOWDERMILK, Judge.

This is an appeal by Mark A. Pruitt, Donald L. Jackson, and Debora Dillman Jackson from convictions of theft ¹ and visiting a common nuisance. ²

PROCEEDINGS BELOW:

On July 22, 1974, the defendants were charged by informations with theft and maintaining a common nuisance. The defendants moved to dismiss the information filed for maintaining a common nuisance, but their motion was denied. After waiving their right to a jury, the defendants were tried before the Putnam County Circuit Court on August 29, 1974. [166 Ind.App. 69] Defendants Mark A. Pruitt and Donald L. Jackson were found guilty of visiting a common nuisance, fined $150.00 each, and sentenced to the Indiana State Farm for six months. On the charge of theft, these

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same two defendants were found guilty and sentenced to the Indiana State Farm for a concurrent term of six months. Defendant Debora Jackson was found guilty of theft and visiting a common nuisance. Under the nuisance charge, Debora was fined $150.00. The court withheld further sentencing of Debora because she was pregnant. Defendants filed a timely motion to correct errors which was overruled. This appeal follows.

FACTS:

On July 18, 1974, Lora Lee Jellicoe, Cynthia Szalewski, James Johnson, and Kenneth McKesson departed from Mishawaka, Indiana, intending to hitchhike to Sedalia, Missouri for a rock concert. Upon reaching Peru, Indiana, the four were offered a ride in a pickup truck driven by one of the defendants. The defendants Mark A. Pruitt, Donald L. Jackson, and Debora Dillman Jackson transported the four hitchhikers to the Jacksons' residence where the group stayed the night. On the following day the defendants and the four hitchhikers boarded the pickup truck and drove toward Sedalia, Missouri.

During the course of their journey, the defendants occupied the front cab of the vehicle while the four guests sat on the open truck bed in the rear. The front and back of the truck were separated by a window, located on the back side of the cab.

On the road to Sedalia, additional hitchhikers possessing marijuana were given rides in the rear of the truck. The marijuana carried by the anonymous new riders was smoked by several persons. State witnesses Lora Lee Jellicoe, Ken McKesson, and Jim Johnson testified marijuana smoking was [166 Ind.App. 70] prevalent in the rear of the truck; through their failure to observe, they were uncertain as to any marijuana usage in the cab area where the defendants sat. State witness Cynthia Szalewski testified that on the way to the concert marijuana was smoked in both the front and the back of the truck. She specifically recalled passing a marijuana cigarette through the passenger window to defendant Don Jackson who was seated in the cab. Each of the defendants denied any knowledge of the presence or use of marijuana as they traveled to the concert.

Arriving at the concert on July 19, 1974, the group split up for the festivities but reunited the next day for the trip home. Defendant Mark Pruitt rode in the rear of the truck for a short time after leaving the concert.

As to the presence of marijuana on the return trip, Lora Lee Jellicoe revealed that before boarding for home everyone was talking about some marijuana in a knapsack left in the truck by an earlier hitchhiker. Lora stated that after leaving the concert, no marijuana smoking occurred in the truck. In direct examination, Kenneth McKesson testified that in traveling to the concert the group picked up a stranger. He saw this person carry a red handkerchief wrapped around six or seven separately packaged plastic baggies filled with marijuana. On cross examination, Kenneth claimed he lacked any personal knowledge of the presence or use of marijuana on the return trip. James Johnson told of new hitchhikers who possessed marijuana being picked up as the group headed back to Indiana. These hitchhikers remained in the back of the truck at all times, and were dropped off sometime before the group reached Putnam County. Beyond this, he lacked personal knowledge of the usage or presence of marijuana on the truck.

Cynthia Szalewski's version of the journey home once again differed from the testimony of her companions. She stated an [166 Ind.App. 71] earlier hitchhiker had left marijuana in the truck, and defendant Mark Pruitt knew this because he examined and displayed it to her before departing. According to Cynthia, marijuana was smoked by some hitchhikers shortly after leaving Sedalia but she was not aware of any other smoking after that time.

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All of the defendants denied any knowledge of the presence or use of marijuana on the truck during the drive home.

During the morning of July 21, 1974, Pruitt parked the truck near a gasoline storage tank adjacent to a farmhouse in Putnam County. Pruitt took a tire tool and gas can from the rear of the vehicle and proceeded to knock the lock off the tank so he could fill his container. Pruitt acted alone; defendants Debora and Donald Jackson remained in the truck during the theft. After filling the container, Pruitt drove further down the road where he stopped a second time to pour the gasoline into the truck's tank.

Mrs. Jean Jones, a resident of the farm house near the storage tank, observed two persons leave a parked pickup truck and begin tampering with the pump, but was unable to describe them, since the tank blocked her view. She called the State Police after seeing a shiny substance resembling gasoline pour out of the tank.

Indiana State Trooper Lanny K. Fields subsequently located the pickup a short way down the road as Pruitt was getting back into the truck. He arrested all seven of the vehicle's occupants for theft. A later inventory of the truck's contents revealed a lock identified by the owner of the storage tank as similar to the lock on him pump. Four plastic bags containing marijuana were found inside the cab lodged behind the front seat. In the glove compartment three smoking pipes and one cigarette holder were discovered; each contained a residue of marijuana. One plastic bag of marijuana was also found in the rear area of the truck. All defendants denied any knowledge as to the presence of these items in the truck.

[166 Ind.App. 72] ISSUES PRESENTED ON APPEAL:

I. Did the trial court err in overruling the defendant's Motion to Dismiss the Information charging them with maintaining a common nuisance?

II. Is IC 1971, 16--6--8--7 (Burns Code Ed.) unconstitutionally vague and overbroad?

III. Was there sufficient evidence to sustain the defendants' convictions for visiting a common nuisance?

IV. Was there sufficient evidence to sustain the defendants' convictions for theft?

ISSUE I:

The defendants' first assignment of error concerns the trial court's overruling of the defendants' motion to dismiss the information charging defendants with maintaining a common nuisance.

Information CR. 74--222 charges:

'. . . on or about the 21st day of July, A.D. 1974, at and in the County of Putnam, State of Indiana, did then and there unlawfully use a certain vehicle, to wit: a 1955 Chevrolet pickup truck automobile for the purpose of illegally keeping a certain dangerous drug, to wit: Cannabis.'

The defendants alleged the information lacked certainty in appraising them of the charge, and moved to dismiss it. The trial court overruled the motion without explanation, and defendants preserved the alleged error for appeal.

Defendants complain of being misled by the uncertainty of Information CR. 74--222. They prepared to defend against the charge of 'maintaining a common unisance' but were found guilty of 'visiting a common nuisance' instead. IC 1971, 16--6--8--7 (Burns Code Ed.) reads:

'Places used for keeping, selling or using dangerous drugs deemed a common nuisance.--Any store, shop, warehouse, dwelling house, apartment, building, vehicle, boat, aircraft, or any place whatever, which is used by any person for the purpose of illegally using any dangerous drug, or which is used for the illegal

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keeping or selling of the same, [166 Ind.App. 73] shall be deemed a common nuisance. No person shall keep, or maintain such a common nuisance, nor frequent or visit such place knowing it to be used for any said purposes.'

The standards for ascertaining the sufficiency of the charging affidavit were recently summarized in Blackburn v. State (1973), 260 Ind. 5, 291 N.E.2d 686, 690 as follows:

'In this state, the offense charged in the indictment must be stated with such certainty that the accused, the court, and the jury may determine the crime for which conviction is sought. IC 1971, 35--1--23--25 (Burns' Ind.Stat.Ann. § 9--1126 (1956 Repl.));...