Evans v. State , 1994 Ind. App. LEXIS 70 ( 1994 )

SHIELDS, Judge.

Ronald Dale Evans appeals his convictions of possession of cocaine with the intent to deliver,¹ a class A felony, and maintaining a common nuisance,² a class D felony. We reverse.

ISSUES

Evans raises six issues for our review, two of which are dispositive:

1. Did the trial court err in denying Evans's motion for mistrial based on an alleged "evidentiary harpoon" solicited by the State?

2. Is Evans's conviction of maintaining a common nuisance supported by sufficient evidence?

FACTS

The evidence most favorable to the convictions is as follows. On July 10, 1992, Robert Decker called his acquaintance, Ronald Dale Evans, and asked Evans if he could buy some cocaine from him. Evans, who lived in Shel-byville, told Decker he had to drive to Indianapolis to pick up the cocaine; Decker offered to go with him. The two drove to Indianapolis, making two stops along the way so Evans could make phone calls Shelby-ville police officers, who had received an anonymous tip that Evans was selling cocaine, were conducting surveillance of Evans throughout this time.

Onee in Indianapolis, Evans obtained some cocaine and sold an amount of it to Decker. While driving back to Shelbyville, Evans and Decker were stopped by police and searched. Two plastic baggies containing cocaine were found on Decker; no cocaine was found on Evans. Both were arrested, and Evans's car was impounded and searched. Another plastic baggie containing cocaine was found on the floor of the front seat on the passenger side of the car.

Evans was charged with possession of cocaine with the intent to deliver and maintaining a common nuisance. After a jury trial, he was convicted of both charges.

DISCUSSION

I.

Evans argues the trial court erred in denying his motion for mistrial following the testimony of a State's witness that a baggie with a white residue was found in Evans's shirt pocket when he was booked into jail. Evans argues this testimony was an eviden-tiary harpoon which could not be cured by the trial court's ensuing admonition to the jury. We agree.

Evans's motion was based on the testimony of Larry Coleman, a jail officer at the Shelby County jail. Coleman, as a witness for the State, was examined on the procedures by which Evans and Decker were booked into jail. Coleman testified that upon strip searching Evans he found "in the right front pocket ... a baggie with white powder residue." Record at 528. Evans objected and requested a mistrial, claiming that the jury would infer that the white residue was cocaine and there was no evidence that it was. The prosecutor admitted that a test was not performed to identify the residue and, furthermore, that the State did not have the baggie in its possession or know its whereabouts. The prosecutor also stated that the next question he planned to ask Coleman was whether the baggie found on Evans "appear[ed] to be like anything else that's been offered into evidence," id. at 582, that is, the baggies of cocaine which were found on Decker and in the car. He then argued that this evidence was admissible because it

"[had] some connection with the testimony of Decker whether Evans had on him in the first place any drugs. He happens to have on him, Evans does, a bag similar to these other bags. Now why do people carry around bags like this? ... And let [the jury] do what it is they want with it."

Id. at 534. The trial court sustained Evans's objection, but refused to grant him a mistrial; instead, it instructed the jury to disregard Coleman's answer.

"An evidentiary harpoon is the placing of inadmissible evidence before the jury with the deliberate purpose of prejudicing the jury against the defendant." Moffatt v. State (1989), Ind., 542 N.E.2d 971, 974. - "[When it is apparent that the 'sole purpose of calling the witness was to wield the evidential harpoon, deliberately calculated by counsel to prejudice the jury against the defendant and his defense, an admonishment cannot cure the error and a mistrial should be declared." Pillow v. State (1985), Ind., 479 N.E.2d 1301, 1306 (quoting White v. State (1971), 257 Ind. 64, 76, 272 N.E.2d 312, 819) (emphasis in original).

In this case, the prosecutor intentionally elicited Coleman's testimony regarding the baggie found on Evans with the intent that the jury would infer that the baggie contained cocaine. There was, in fact, no other reason to call Coleman as a witness, as the booking procedures had no relevance to whether Evans committed the offenses with which he was charged. This evidence was inadmissible and highly prejudicial to Evans for the very reason that the prosecutor sought to admit it--the jury would naturally infer that the baggie contained cocaine, and this inference would provide the only real corroboration of Decker's claim that Evans personally possessed cocaine. Thus, Evans's characterization of this evidence as an evi-dentiary harpoon is an appropriate one. Evans is also correct that, in the face of such action by the prosecutor, the only proper course of action for the trial court was to grant Evans's motion for mistrial, which the court failed to do. Therefore, we must reverse Evans's convictions.

IL

We must also address Evans's argument that his conviction of maintaining a common nuisance is not supported by sufficient evidence.

In order to convict Evans of maintaining a common nuisance, the State had to prove that he knowingly or intentionally maintained his automobile for the purpose of keeping or selling drugs. See IC 35-48-4-13(b) (1992 Supp.). "Evidence of an isolated or casual occurrence of the prohibited activity is insufficient to sustain a conviction. Rather, the State must demonstrate continuous or recurrent violations." Plowman v. State (1992), Ind.App., 604 N.E.2d 1219, 1222, trans. denied (citations omitted).

The record is devoid of any evidence that Evans used his automobile to sell or keep drugs on any occasion other than the particular trip in question. The State argues, without authority, that Evans's convietion may be sustained based on evidence that he used his automobile to drive to Indianapolis to purchase cocaine, that he sold the cocaine to Decker while in the automobile, that Decker used some of the cocaine in the automobile, and that cocaine was found on the floor of the automobile. This argument is untenable; by the State's logic, any drug sale that occurred within a building, structure, or automobile would constitute the offense of maintaining a common nuisance, because the defendant would have had to have committed two offenses-first possessing drugs and then selling them. The record before us contains evidence that Evans used his automobile on only one occasion to consummate the sale of cocaine to Decker; this evidence is not sufficient to sustain his conviction of maintaining a common nuisance.

Evans's conviction of possession of cocaine with the intent to deliver is reversed and remanded for a new trial; his conviction of maintaining a common nuisance is reversed with instructions to the trial court to enter a judgment of acquittal.

FRIEDLANDER, J., concurs. RUCKER, J., dissents in part, with separate opinion.

1 . See IC 35-48-4-1(a)(2)(C) (1992 Supp.).

2 . See IC 35-48-4-13(b) (1992 Supp.).