Wells v. State ( 1976 )

Dissenting Opinion

Staton, P.J.

— I dissent for the reason that I do not believe there is sufficient evidence to support Wells’ conviction of visiting a common nuisance. I agree with the majority that the use of the term “common nuisance” in IC 1971, 35-24.1-4-3.5¹ requires the State to show more than an isolated or casual use of the premises for the prohibited activity for conviction. I also agree that Wells lacks standing to challenge the constitutionality of IC 1971, 35-24.1-4-3.5.

However, I cannot agree that the State proved beyond a reasonable doubt that the Rex’ residence was a common nuisance within the meaning of IC 1971, 35-24.1-4-3.5 on the date of Wells’ visit. There was no evidence presented at trial that the Rex’ residence had ever been used for the illegal purpose of “using, keeping or selling” a controlled substance prior to Wells’ visit on February 24, 1974. Officer Hampshire testified as follows:

“Q. Mr. Hampshire, you had never seen or known either of these defendants before the night of the 24th of February, 1974, had you?

“A. No, Sir.

“Q. Had you ever been at that apartment which you de-described as maybe apartment 1, 514 Oak Street, or wherever it is? The apartment you described, before the 24th of February, 1974?

“A. No, Sir.

“Q. Have you ever — had you ever made any other drug buys at that apartment before the night of the 24th of February, 1974?

“A. No, Sir.

“Q. Had you conducted any kind of stake out or observation of that apartment on that day or any previous day?

“A. No, Sir.”

In order for the State to establish that Wells did in fact visit a common nuisance, there must be some evidence that the place visited was a common nuisance at the time of the visit. Rex’ comment that he would be “getting in” other drugs in the future does not prove that Rex sold drugs at his residence on prior occasions. The mere fact that Rex had a sample of the drug on the date Wells was present at the Rex’ residence does not establish that Rex had used, kept or sold drugs at his residence in the past. This circumstantial evidence merely supports a suspicion that Rex was involved in the proscribed activities of “using, keeping or selling” drugs prior to Wells’ visit on February 24,1974. It is well established that evidence merely tending to establish a suspicion of guilt is not sufficient to sustain a conviction. Phillips v. State (1973), 260 Ind. 321, 295 N.E.2d 592; Stocklin v. State (1976), 169 Ind. App. 49, 345 N.E.2d 863.²

Since the State has failed to prove an essential element of the crime of visiting a common nuisance, Wells’ conviction should be reversed.

Note. — Reported at 351 N.E.2d 43.

1 . IC 1971, 35-24.1-4-3.5, which is Pub. L. No. 335, § 3.5 [1973] Ind. Acts 1860, was repealed in 1975 and is now found in IC 1971, 35-24.1-4.1-15 (Burns Code Ed.).

2 . In Shacklett v. State (1925), 196 Ind. 114, 147 N.E. 326, cited by the majority, it does not appear that the Court was specifically confronted with a challenge to the sufficiency of the evidence to show that the premises in question were, in fact, a common nuisance. The only specific question of insufficient evidence dealt with in Shacklett, supra, was whether the premises were maintained by the appellant or by a third person.