Wells v. State

• Decision Date: 14 July 1976
• Docket Number: No. 3--1174A196,3--1174A196
• Citation: 170 Ind.App. 29,351 N.E.2d 43
• Parties: Dean WELLS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 43

351 N.E.2d 43

170 Ind.App. 29

Dean WELLS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3--1174A196.

Court of Appeals of Indiana, Third District.

July 14, 1976.

John S. Bloom, Bloom, Bloom & Fleck, Columbia City, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., John R. O'Bryan, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

GARRARD, Judge.

Dean Wells was convicted of visiting a common nuisance in violation of one of the provisions of the Indiana Controlled Substances Act, IC 1971, 35--24.1--4--3.5 (Burns Supp.1974).

He asserts that the evidence failed to establish that he 'visited' the residence in question, and that it failed to establish that the residence was a common nuisance. In addition, he attempts to challenge the constitutionality of the statute. We find the evidence sufficient and that Wells lacks standing to assert his claim of overbreadth. We therefore affirm.

The evidence is basically undisputed. On February 24, 1974, an undercover police officer went to the residence in question in Columbia City, Indiana. He was admitted by one Dan Rex. Wells and two young women were seated in the living room. Rex and the police officer went directly to the kitchen which adjoined the living room. When they did this, Wells assumed a position in the opening between the living room and the kitchen about eight feet away from the kitchen refrigerator. With Wells standing there, Rex and the officer engaged in conversation about the sale of phencyclidine, a controlled substance. Rex removed a small cellophane package from the refrigerator and proffered it to the officer as a sample of what was for sale. Rex then told the officer that Rex would have to leave the premises to procure the desired quantity of the substance, and the officer should return for it in 30 to 45 minutes.

Rex and appellant Wells then left the residence together in Rex's automobile and the police officer left. A half hour later, the officer returned and was admitted by one of the women. Nearly an hour later, Rex and Wells returned. Again, Rex went into the kitchen with the police officer while Wells stood in the entryway. Rex produced a packet (State's Exhibit #1) and he and the officer then bargained over the price. The sale was then concluded, and Rex spoke of other drugs he would be 'getting in' at a later date. Upon this evidence, Wells was convicted of violating IC 1971, 35--24.1--4--3.5:

'(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.'

Wells first contends that the state failed to prove he was a visitor within the meaning of the statute because the prosecution did not establish that he was not a resident of the house in question. He argues that the history of the statute demonstrates legislative intent to exclude residents from criminality. We disagree.

As originally enacted, Uniform Narcotic Act, Acts 1935, Ch. 280, § 13 referred to narcotic drugs, defined a common nuisance and proscribed keeping or maintaining such a nuisance. Sections 1 and 2 of Public Law 468, Acts 1971 amended the statute to add 'visiting' to the prohibited activities, and made the violation of this section a misdemeanor. Then in 1973, the statute was substantially amended to speak in terms of controlled substances. As a part of these amendments, IC 1971, 35--24.1--4--2(a)(5), (b) made it a felony for one 'knowingly to keep or maintain any store, shop,' etc., and IC 1971, 35--24.1--4--3.5, under which Wells was prosecuted, made it a misdemeanor to visit any such store, shop, etc.

The testimony was that the house was the residence of Dan Rex. From the testimony regarding Wells' presence, it was reasonable for the court to conclude that he was a visitor within the meaning of the statute.

Wells next argues that the evidence failed to establish that the residence was a common nuisance. The essence of his claim is that the term 'common nuisance' carries such a fixed connotation of continuousness or recurrence that the statute must be read to require proof that the residence was repeatedly used for the illicit purpose before a conviction may be had.

As pointed out by Judge Station, it must be noted that the 1973 statute does not, in form, merely provide that it shall be an offense to visit a place where anyone may sell or consume a controlled substance. Instead, the statute provides that any store, etc., which is used . . . shall be deemed a common nuisance. It then proscribes visiting such a common nuisance.

While criminal statutes are to be strictly construed, they nevertheless should not be overly narrowed so as to exclude cases fairly covered. They are to be interpreted so as to give efficient operation to the expressed intent of the legislature. See, e.g., State v. Bigbee (1973), 260 Ind. 90, 292 N.E.2d 609; Simmons v. State (1955), 234 Ind. 489, 129 N.E.2d 121.

The question is the proper effect to be given to the legislative choice of expressing the proscribed activity in terms of common nuisance. As a general rule, of course, the legislature may supply its own definition of a term and we are bound to adhere to it. Here there is no question concerning the qualitative nature of the activity which will constitute a nuisance. The nuisance will arise from the use of a store, etc. for the purpose of illegally using, keeping or selling controlled substances. The issue concerns the quantitative nature of the activity. Absent the reference to common nuisance, the statute would appear to plainly proscribe visiting a place where controlled substances were then being used, kept or sold. ¹

On the other hand, when the legislature employs terms having a peculiar and appropriate meaning in law, those terms are to be understood according to their technical import. IC 1971, 1--1--4--1; Gross Income Tax Div. v. Colpaert Realty Corp. (1952), 231 Ind. 463, 109 N.E.2d 415.

In Keeth v. State (1923), 193 Ind. 549, 139 N.E. 589, our Supreme Court upheld the conviction of one accused of maintaining a common nuisance by selling or manufacturing intoxicating liquor in violation of the Prohibition laws. On appeal, the question was whether the trial court erred in refusing to require the state to elect which one of three transactions occurring on different days it intended to rely upon for a conviction. The court held all the occurrences were germane to the single offense of maintaining a common nuisance. In construing the statute, the court stated:

'The words 'common nuisance' as used in the statute 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 . . . to the effect that the keeping of such a house is a continuous act, and . . . constitutes but one indivisible offense. . . .' 193 Ind. 550, 551, 139 N.E. 589, 590.

Thus, other jurisdictions have similarly held, at least where the offense was the conduct of keeping or maintaining a common nuisance, that proof of an isolated occurrence would not sustain a conviction. Skinner v. State (1972), 16 Md.App. 116, 293 A.2d 828; Commonwealth v. Patterson (1885), 138 Mass. 498. While the connotation ascribed to 'keeping' and 'maintaining' is important to the decision of these cases, the notion that more than an isolated instance attends the term 'common nuisance' is inescapable.

'Common nuisance' and 'public nuisance' have been traditionally treated as interchangeable terms, and the designation 'common' does import a public character. As stated in Skinner v. State (1972), 16 Md.App. 116, 126, 293 A.2d 828, 834:

'The adjective 'common' and the phrase 'common nuisance' are, moreover, accepted words of art at the common law. The whole fraternity (or sorority) of common vagrants, common brawlers, common scolds, common nightwalkers, common drunkards, common prostitutes and common gamblers share the characteristic that their offenses are of a recurring and habitual nature.'

We therefore conclude that the term as used in IC 1971, 35--24.1--4--3.5 requires a showing of more than an isolated or casual instance of the prohibited activity.

This, however, does not mean that to establish the existence of such a nuisance the state must establish sales, etc. on a specified number of days. The question is evidentiary.

In Wells' case, the evidence established that the house was Rex's residence. A quantity of the controlled substance was in a packet in the refrigerator. It was proffered as a sample of the product for sale. The quantity actually sold was not at the residence, but was brought to the residence for the sale transaction. The seller discussed other controlled substances he 'would be getting in' in the future. From this evidence, the court could reasonably have...