Terrel v. State, No. 2--575A120

Docket NºNo. 2--575A120
Citation170 Ind.App. 422, 353 N.E.2d 553
Case DateAugust 25, 1976
CourtCourt of Appeals of Indiana

Page 553

353 N.E.2d 553
170 Ind.App. 422
Connie R. TERREL, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 2--575A120.
Court of Appeals of Indiana, Second District.
Aug. 25, 1976.
Rehearing Denied Nov. 17, 1976.

R. D. Reading, Reading & Swartz, Wabash, for appellant.

[170 Ind.App. 423] Theodore L. Sendak, Atty. Gen., K. Richard Payne, Deputy Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Presiding Judge.

CASE SUMMARY

Defendant-Appellant, Connie R. Terrel, appeals her conviction of visiting a common nuisance in violation of the Indiana Controlled Substances Act, IC 1971, 35--24.1--4--3.5, Ind.Ann.Stat. § 10--3561c (Burns Supp.1974), alleging that: (1) the statute is unconstitutional; (2) the trial court improperly overruled her motion to suppress evidence; (3) prejudicial hearsay evidence

Page 554

was erroneously admitted at trial; and (4) the State failed to prove the Corpus Delicti of the crime charged.

We affirm.

FACTS

The facts and evidence most favorable to the State are as follows:

On April 13, 1974, Officers Gidley, Ross, and Drook of the Wabash Police Department were dispatched to an apartment located at 1069 Rainbow Lane, Wabash, Indiana, to investigate a complaint of a loud party in progress. At 12:25 A.M., Officer Gidley knocked on the door while Officers Drook and Ross peered into the front window of the apartment. Officer Drook later testified as to what he observed:

'Q. What did you do when you arrived?

A. I stood on the sidewalk just to--the sidewalk goes this way and then runs up to the apartment and I stood on the front sidewalk just to the left of the other one while they was knocking on the door.

Q. Is there a window there in the apartment?

A. Yes, there is.

Q. Were you able to see in it?

A. Yes, I could.

Q. What did you observe?

A. I could see two or three people going from one room to another. In this instance, from the main room there that that window was, right straight back.

[170 Ind.App. 424] Q. What was the room right straight back?

A. It was the kitchen, when we got in. It was in the kitchen.

Q. Could you identify any of those people?

A. I couldn't see them that well. I could just see people. I didn't know any of them at the time, anyway.' 1

Officer Ross testified that shortly after the knock he saw persons running around in the apartment. 2

Several minutes after the knock, Defendant Terrel opened the door and invited the Officers inside. Upon entry, all three officers smelled a strong odor of burning marijuana in the apartment.

Richard Powell, Paul Brooks, and Defendant were the only persons downstairs when the police arrived. Defendant informed the Officers the residents of the apartment were away for the evening, and a baby-sitter, Brenda Bone, was in charge of the premises until they returned. The Officers found Brenda Bone and Jerry Coplea, a seventeen year old minor, on the upstairs level of the apartment.

With Brenda Bone's permission, the Officers searched the apartment and discovered a green substance, later identified as marijuana, in the kitchen sink. Large lumps of the same substance were found stuffed inside the garbage disposal, and a bowl containing marijuana was found in the kitchen cupboard. The five occupants (Defendant Terrel, Richard Powell, Paul Brooks, Brenda Bone and Jerry Coplea) were placed under arrest and transported to police headquarters.

On April 18, 1974, Defendant was charged with visiting a common nuisance 3 and

Page 555

contributing to the delinquency of a child, 4 i.e., Jerry Coplea. After a trial before the court without [170 Ind.App. 425] a jury on October 3, 1974, Defendant was acquitted of contributing to the delinquency of a child but found guilty of visiting a common nuisance.
ISSUES

The sole issue for our disposition is:

Does Defendant have standing to challenge the constitutionality of the Common Nuisance Statute?

In her brief, Defendant baldly asserts the State failed to prove the Corpus Delicti of the crime; the trial court erred in overruling her motion to suppress evidence, and prejudicial hearsay testimony was admitted into evidence. These additional allegations of error are presented without any cogent argument or citation of authority. Pursuant to Ind.Rules of Procedure, Appellate Rule 8.3(A)(7), we will not consider these issues because they were improperly preserved for review. Riggs v. State (1976), Ind., 342 N.E.2d 838. Williams v. State (1973), 260 Ind. 543, 297 N.E.2d 805. Thomas v. State (1975), Ind.App., 330 N.E.2d 325. Beech v. State (1974), Ind.App., 319 N.E.2d 678.

PARTIES CONTENTIONS

Defendant claims IC 1971, 35--24.1--4--3.5, Ind.Ann.Stat. § 10--3561c (Burns Supp.1974) contravenes the due process provisions of the 14th amendment to the United States Constitution in not requiring those convicted of visiting a common nuisance to have 'knowledge' that illicit drugs were kept or used on the premises. The statute reads as follows: 5

[170 Ind.App. 426] 10--3561c, IC 35--24.1--4--3.5. Prohibited acts D--Penalties.--(a) 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 controlled substance or which is used for the illegal keeping or selling of the same shall be deemed a common nuisance. No person shall visit such a common nuisance.

(b) Any person who violates this section is guilty of a misdemeanor and shall be fined not less than twenty-five dollars ($25.00) nor more than one hundred dollars ($100) and may be imprisoned in the county jail for a period of not more than six (6) months. (IC 1971, 35--24.1--4--3.5, as added by Acts 1973, P.L. 335, § 1, p. 1834.)

The State argues the language of the statute implies a knowledge requirement, and Defendant has failed to overcome a strong presumption favoring this statute's constitutionality.

DECISION

CONCLUSION--It is our opinion Defendant lacks standing to...

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6 practice notes
  • Church of Christ in Indianapolis v. Metropolitan Bd. of Zoning Appeals of Marion County (Division I), No. 2-776A261
    • United States
    • Indiana Court of Appeals of Indiana
    • 24 January 1978
    ...92; Lamb v. State (1975), Ind., 325 N.E.2d 180; State v. Clark (1966), 247 Ind. 490, 217 N.E.2d 588; Terrel v. State (1976), Ind.App., 353 N.E.2d 553; Wells v. State (1976), Ind.App., 351 N.E.2d It follows that the Board's action excluded the Church from a residential area and such action c......
  • Davis v. State, No. 2-1083A356
    • United States
    • Indiana Court of Appeals of Indiana
    • 28 March 1985
    ...of their case. Id.; accord United States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975); e.g., Terrel v. State, 170 Ind.App. 422, 353 N.E.2d 553 (1976) (statute omitting "knowledge" from offense of visiting a common nuisance not vague where evidence demonstrated defen......
  • Bass v. State, No. 34A04-8701-CR-10
    • United States
    • Indiana Court of Appeals of Indiana
    • 10 September 1987
    ...IND. CODE 35-24.1-4-3.5 (1971 superseded) 4) This view was also expressed by the second district in Terrel v. State (1976), 170 Ind.App. 422, 353 N.E.2d 553 (also interpreting IND. CODE 35-24.1-4-3.5 (1971 superseded)). In Mayotte v. State (1977), 172 Ind.App. 252, 360 N.E.2d 34 (interpreti......
  • Palmer v. State, No. 284S74
    • United States
    • Indiana Supreme Court of Indiana
    • 12 December 1985
    ...were adversely affected by the operation of the statute. State v. Clark (1966), 247 Ind. 490, 217 N.E.2d 588; Terrel v. State (1976), 170 Ind.App. 422, 353 N.E.2d 553. In this case, the jury had to find that appellant intended to rape the prosecutrix before rendering their guilty verdict. A......
  • Request a trial to view additional results
6 cases
  • Church of Christ in Indianapolis v. Metropolitan Bd. of Zoning Appeals of Marion County (Division I), No. 2-776A261
    • United States
    • Indiana Court of Appeals of Indiana
    • 24 January 1978
    ...92; Lamb v. State (1975), Ind., 325 N.E.2d 180; State v. Clark (1966), 247 Ind. 490, 217 N.E.2d 588; Terrel v. State (1976), Ind.App., 353 N.E.2d 553; Wells v. State (1976), Ind.App., 351 N.E.2d It follows that the Board's action excluded the Church from a residential area and such action c......
  • Davis v. State, No. 2-1083A356
    • United States
    • Indiana Court of Appeals of Indiana
    • 28 March 1985
    ...of their case. Id.; accord United States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975); e.g., Terrel v. State, 170 Ind.App. 422, 353 N.E.2d 553 (1976) (statute omitting "knowledge" from offense of visiting a common nuisance not vague where evidence demonstrated defen......
  • Bass v. State, No. 34A04-8701-CR-10
    • United States
    • Indiana Court of Appeals of Indiana
    • 10 September 1987
    ...IND. CODE 35-24.1-4-3.5 (1971 superseded) 4) This view was also expressed by the second district in Terrel v. State (1976), 170 Ind.App. 422, 353 N.E.2d 553 (also interpreting IND. CODE 35-24.1-4-3.5 (1971 superseded)). In Mayotte v. State (1977), 172 Ind.App. 252, 360 N.E.2d 34 (interpreti......
  • Palmer v. State, No. 284S74
    • United States
    • Indiana Supreme Court of Indiana
    • 12 December 1985
    ...were adversely affected by the operation of the statute. State v. Clark (1966), 247 Ind. 490, 217 N.E.2d 588; Terrel v. State (1976), 170 Ind.App. 422, 353 N.E.2d 553. In this case, the jury had to find that appellant intended to rape the prosecutrix before rendering their guilty verdict. A......
  • Request a trial to view additional results

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