                                                                         FILED
                                                                  May 09 2018, 8:00 am

                                                                         CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Jennifer G. Schlegelmilch                                 Curtis T. Hill, Jr.
Lawrence County Public Defender                           Attorney General of Indiana
Agency                                                    Evan Matthew Comer
Bedford, Indiana                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jerold W. Leatherman,                                     May 9, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          47A04-1711-CR-2711
        v.                                                Appeal from the Lawrence
                                                          Superior Court
State of Indiana,                                         The Honorable William G. Sleva,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          47D02-1703-F6-292



Bailey, Judge.




Court of Appeals of Indiana | Opinion 47A04-1711-CR-2711 | May 9, 2018                     Page 1 of 14
                                           Case Summary
[1]   Jerold W. Leatherman (“Leatherman”) appeals his convictions for maintaining

      a common nuisance, a Level 6 felony,1 and possession of paraphernalia, as a

      Class C misdemeanor.2


[2]   We affirm in part and reverse in part.



                                                    Issues
[3]   Leatherman raises the following two issues:


                 I.       Whether the State provided sufficient evidence to support
                          his conviction for maintaining a common nuisance.


                 II.      Whether the State provided sufficient evidence to support
                          his conviction for possession of paraphernalia.


                                Facts and Procedural History
[4]   On February 27, 2017, Sergeant Justin Dodd (“Sgt. Dodd”) of the Bedford

      Police Department and Detective Chris Roberts (“Det. Roberts”) of the

      Lawrence County Sheriff’s Department were investigating a tip regarding

      possible drug dealing and prostitution near Frank Street in Mitchell, Indiana.

      While patrolling the area in an unmarked vehicle, the two officers saw




      1
          Ind. Code § 35-45-1-5 (2017).
      2
          I.C. § 35-48-4-8.3.


      Court of Appeals of Indiana | Opinion 47A04-1711-CR-2711 | May 9, 2018          Page 2 of 14
      Leatherman, who was driving a van that had been parked alongside the road,

      drive a short distance to another home on nearby Meridian Street. A man

      exited the house and approached Leatherman’s van. Leatherman then backed

      out of the driveway and parked his van alongside the road on Frank Street.


[5]   As Det. Roberts, who was driving the officers’ vehicle, drove past Leatherman’s

      van on the driver’s side, Leatherman opened the driver’s side door and nearly

      struck the officers’ vehicle. Det. Roberts stopped the vehicle and, as he

      approached Leatherman’s vehicle, he instructed Leatherman to “be a little more

      careful” about opening his car door. Tr. Vol. II at 71-72. In accordance with

      safety protocol, Sgt. Dodd also exited the truck and approached Leatherman’s

      van on the passenger’s side. When he crossed behind the van, Sgt. Dodd saw

      Leatherman pass a small bag to the female passenger, Heather Ditton

      (“Ditton”), who was sitting in the front seat. Sgt. Dodd then saw Ditton pull

      out the elastic waistband of her pants and place the baggie inside her vagina.


[6]   Sgt. Dodd knocked on the passenger window of the van and asked Ditton, “Are

      you done shoving that?” Id. at 96, 103. Ditton responded, “I’m on my period

      and I don’t have tampons, it’s napkins[,] I swear.” Id. at 103. Sgt. Dodd

      escorted Ditton from the van and Ditton removed the bag from her vagina. Sgt.

      Dodd observed that the bag contained a white crystal substance, which was

      later confirmed by lab testing to be methamphetamine.


[7]   After Ditton turned over the bag of methamphetamine to Sgt. Dodd, Det.

      Roberts ordered Leatherman to exit the van. Det. Roberts conducted a pat


      Court of Appeals of Indiana | Opinion 47A04-1711-CR-2711 | May 9, 2018      Page 3 of 14
      down of Leatherman and discovered two syringes hidden in Leatherman’s

      pockets. Leatherman informed Det. Roberts that the syringes were from the

      Lawrence County Needle Exchange Program in which Leatherman

      participated. Det. Roberts, “a drug recognition specialist,” saw that the

      syringes contained a liquid residue and had grey caps that indicated that they

      were from the needle exchange program. Tr. Vol. II at 68.


[8]   The officers placed both Leatherman and Ditton in handcuffs and called a drug-

      sniffing dog to the scene. While sniffing the perimeter of Leatherman’s van, the

      dog gave a positive alert for narcotics three times. The officer conducting the

      dog sniff observed a syringe sitting on the dashboard underneath a cellular

      phone. A subsequent search of the vehicle revealed the presence of an

      additional syringe that had been hidden inside a purse located on the passenger

      side of the vehicle.


[9]   On March 1, 2017, the State charged Leatherman with Count I, maintaining a

      common nuisance, a Level 6 felony; Count II, possession of methamphetamine,

      as a Level 6 felony;3 and Count III, possession of paraphernalia, as a Class C

      misdemeanor. On April 17, 2017, the State filed an amended information,

      which included a habitual offender sentence enhancement. Following

      Leatherman’s May 24 jury trial, the jury found Leatherman guilty on all three

      counts. Leatherman admitted to his status as a habitual offender. At a




      3
          I.C. § 35-48-4-6.1. Leatherman does not challenge his conviction for that charge.


      Court of Appeals of Indiana | Opinion 47A04-1711-CR-2711 | May 9, 2018                  Page 4 of 14
       sentencing hearing conducted on August 22, Leatherman was sentenced to two

       years for Count I, two years for Count II, and 60 days for Count III, with the

       sentences for Counts I and II to run concurrently with no time suspended. One

       count was enhanced by three years due to Leatherman’s habitual offender

       status. This appeal ensued.



                                  Discussion and Decision
                                         Standard of Review
[10]   Leatherman challenges the sufficiency of the evidence to support his

       convictions for maintaining a common nuisance, as a Level 6 felony, and

       possessing paraphernalia, as a Class C misdemeanor. Our standard of review

       of the sufficiency of the evidence is well-settled:


               When reviewing the sufficiency of the evidence needed to
               support a criminal conviction, we neither reweigh evidence nor
               judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005
               (Ind. 2009). “We consider only the evidence supporting the
               judgment and any reasonable inferences that can be drawn from
               such evidence.” Id. We will affirm if there is substantial
               evidence of probative value such that a reasonable trier of fact
               could have concluded the defendant was guilty beyond a
               reasonable doubt. Id.


       Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied.

       Moreover, “[a] conviction may be based on circumstantial evidence alone so

       long as there are reasonable inferences enabling the factfinder to find the



       Court of Appeals of Indiana | Opinion 47A04-1711-CR-2711 | May 9, 2018      Page 5 of 14
       defendant guilty beyond a reasonable doubt.” Lawrence v. State, 959 N.E.2d

       385, 388 (Ind. Ct. App. 2012) (citation omitted), trans. denied.


          Sufficiency of the Evidence—Maintaining a Common
                                 Nuisance
[11]   To support Leatherman’s conviction for maintaining a common nuisance, the

       State was required to prove that Leatherman knowingly or intentionally

       maintained a vehicle to unlawfully use, manufacture, keep, offer for sale, sell,

       deliver, or finance the delivery of a controlled substance. I.C. § 35-45-1-5(a)

       and (c). The word “maintain,” as used in that statute, does not require that the

       defendant actually own the vehicle; rather, a defendant “maintains” a vehicle

       when he exerts control over it. E.g., Mack v. State, 23 N.E.3d 742, 758 (Ind. Ct.

       App. 2014), trans. denied.


[12]   At trial, the State provided evidence that Leatherman exerted control over the

       van he was driving, although the van was actually owned by his cousin. The

       State also provided evidence that, while in the van, Leatherman not only

       possessed a controlled substance himself, but also handed a bag of

       methamphetamine to Ditton. Sgt. Dodd testified that he personally witnessed

       that exchange of the drugs. That was sufficient evidence that Leatherman used

       the van to unlawfully “deliver” a controlled substance. I.C. § 35-45-1-

       5(a)(3)(G).


[13]   Lovitt v. State, 915 N.E.2d 1040 (Ind. Ct. App. 2009), cited by both parties, is

       consistent with our holding. In Lovitt, a panel of this court held that the

       Court of Appeals of Indiana | Opinion 47A04-1711-CR-2711 | May 9, 2018    Page 6 of 14
       legislature did not intend for the “maintaining a common nuisance” statute to

       apply to “an offender who has personal use quantities of controlled substance(s)

       on his or her person or even loose in the vehicle.” Id. at 1045. Rather, we held

       that the statute is intended to apply to “an offender who uses his or her vehicle

       to facilitate … delivery … of a controlled substance.” Id. The State provided

       sufficient evidence that Leatherman is just such an offender.


[14]   However, to prove the nuisance was a “common” nuisance, the State must

       provide evidence that the vehicle was used on more than one occasion for the

       unlawful delivery of a controlled substance. See Zuniga v. State, 815 N.E.2d 197,

       200 (Ind. Ct. App. 2004) (holding “the term ‘common nuisance’ as used in the

       statute requires proof of a continuous or recurrent violation”). This

       requirement is apparent from the judicial and legislative history of the crime of

       maintaining a common nuisance. In Wells v. State, the court described what

       constitutes a common nuisance, and explained that inherent in this

       classification is “a notion of continuous or recurrent violation. . . . The words

       ‘maintains’ and ‘maintaining’ denote continuous or recurrent acts approaching

       permanence.” 351 N.E.2d 43, 46 (Ind. Ct. App. 1976). The court held that, for

       the purposes of maintaining or visiting a common nuisance, the statute

       “requires a showing of more than an isolated or casual instance of the

       prohibited activity.” Id. at 47.


[15]   In 1998, however, the General Assembly amended the common nuisance

       statute and added introductory language stating: “A person who knowingly or

       intentionally maintains a building, structure, vehicle, or other place that is used

       Court of Appeals of Indiana | Opinion 47A04-1711-CR-2711 | May 9, 2018     Page 7 of 14
       one (1) or more times. . .” I.C. § 35-48-4-13(b) (2008) (emphasis added). Under

       the 2008 version of the statute, there was no requirement for ongoing instances

       of prohibited activity; as the Seventh Circuit noted in Wheeler v. Lawson, the

       2008 version of the statute abrogated Wells. 539 F.3d 629, 635 n.7 (7th Cir.

       2008).


[16]   The “one or more times” language remained in the statute for several years,

       until the statute was again updated in Indiana Code Section 35-45-1-5 (2016) to

       remove that language. 2016 Legis. Serv. P.L. 59-2016, §§ 7, 8. The 2016

       amendment of the statute is significant in that it evinces a conscious desire on

       the part of our Legislature that the common nuisance statute not be applied to

       isolated instances of prohibited activity. As our Supreme Court has noted,


                We have stated on numerous occasions that [a] fundamental rule
                of statutory construction is that an amendment changing a prior
                statute indicates a legislative intention that the meaning of the
                statute has changed. We have also relied on a rule of statutory
                construction to the effect that when language from an earlier
                version of a statute is deleted, the Legislature intended to change
                the law by removing that language.


       State v. Boles, 810 N.E.2d 1016, 1019 (Ind. 2004) (quotations and citations

       omitted). Moreover, when construing a statute, we presume that the legislature

       had “in mind the history of the act and the decisions of the courts upon the

       subject matter of the legislation being construed.” Reynolds v. Dewees, 797

       N.E.2d 798, 800 (Ind. Ct. App. 2003).




       Court of Appeals of Indiana | Opinion 47A04-1711-CR-2711 | May 9, 2018     Page 8 of 14
[17]   Here, it is clear that the legislature intended by the removal of the “one or more

       times” language to restore the prior common law and statutory requirement

       that a common nuisance is one in which continuous or recurrent prohibited

       activity takes place. I.C. § 35-45-5-1(a), (c). Because the State failed to provide

       evidence that the vehicle Leatherman drove had been used on multiple

       occasions for the delivery of a controlled substance, the State failed to provide

       sufficient evidence to support Leatherman’s conviction of maintaining a

       common nuisance. We must reverse that conviction.


       Sufficiency of the Evidence—Possession of Paraphernalia
[18]   To support Leatherman’s conviction for possession of paraphernalia as a Class

       C misdemeanor, the State was required to prove that Leatherman knowingly or

       intentionally possessed an instrument, device, or other object that he intended

       to use for introducing into his body a controlled substance. I.C. § 35-48-4-

       8.3(b)(1). The State provided evidence that Leatherman had been in possession

       of a bag of methamphetamine, that he handed that bag to Ditton, that the

       substance in the bag tested positive for methamphetamine, that Leatherman

       was in possession of two syringes that contained an unidentified liquid, and that

       two other syringes were located in the vehicle.


[19]   Intent to introduce a controlled substance into one’s body may be inferred from

       circumstantial evidence. E.g., Halsema v. State, 823 N.E.2d 668, 673 n.1 (Ind.

       2005). And “this Court has held that the simultaneous possession of an illegal

       drug and an instrument for administering that particular illegal drug is sufficient


       Court of Appeals of Indiana | Opinion 47A04-1711-CR-2711 | May 9, 2018    Page 9 of 14
       to establish the intent” to use the instrument to introduce drugs into the body.

       Berkhardt v. State, 82 N.E.3d 313, 318 (Ind. Ct. App. 2017) (citing McConnell v.

       State, 540 N.E.2d 100, 103 (Ind. Ct. App. 1989)); see also Perkins v. State, 57

       N.E.3d 861, 866 (Ind. Ct. App. 2016) (finding sufficient evidence of possession

       of paraphernalia where unused syringes were found in the same container as a

       bottle cap that contained a controlled substance).


[20]   Here, the State provided evidence that Leatherman had possessed

       methamphetamine and delivered it to Ditton, and Det. Roberts testified that he

       found two used syringes on Leatherman’s person. And, although the State did

       not provide evidence regarding what liquid was in the syringes, such evidence

       was not necessary. Rather, evidence of possession of even a small amount of a

       controlled substance—such as the bag of methamphetamine—together with

       possession of paraphernalia that can be used to introduce the controlled

       substance into the body provides sufficient circumstantial evidence of the intent

       to use the paraphernalia. Perkins, 57 N.E.3d at 864-65.


[21]   However, Leatherman contends that his conviction for possession of

       paraphernalia must be reversed because he had “legal authority” to possess the

       syringes under the local needle exchange program. In support, he cites Indiana

       Code Section 35-41-3-1, which provides that “[a] person is justified in engaging

       in conduct otherwise prohibited if he has legal authority to do so.” But

       Leatherman raises that argument for the first time on appeal; therefore, it is

       waived. Moreover, he has failed to show that the conviction was obtained

       because of fundamental error.

       Court of Appeals of Indiana | Opinion 47A04-1711-CR-2711 | May 9, 2018    Page 10 of 14
[22]   It is well-established that we generally will not address an argument that was

       not raised in the trial court and is raised for the first time on appeal.


               [A] trial court cannot be found to have erred as to an issue or
               argument that it never had an opportunity to consider.
               Accordingly, as a general rule, a party may not present an
               argument or issue on appeal unless the party raised that
               argument or issue before the trial court. Marshall v. State, 621
               N.E.2d 308, 314 (Ind. 1993). In such circumstances the
               argument is waived. Id.


       Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004). Here, Leatherman did

       not raise a “legal authority” argument below.4 Therefore, he has waived our

       consideration of his argument on appeal.


[23]   In an effort to avoid waiver, Leatherman raises a cursory allegation that his

       conviction of possession of paraphernalia was obtained due to fundamental

       error.5 As this court has routinely stated, merely calling an error fundamental

       does not make it so. See, e.g., Taylor v. State, 614 N.E.2d 944, 947 (Ind. Ct. App.

       1993), trans. denied. Rather, in order to be fundamental, the error must be so

       prejudicial to the rights of the defendant that he could not have received a fair

       trial. Id. We have also characterized fundamental error as error that constitutes




       4
         We disagree with Leatherman’s assertion that defense counsel’s passing remarks in closing argument
       suggesting that Leatherman had obtained the needles from the needle exchange program sufficiently raised
       the “legal authority” argument.
       5
         Leatherman’s brief assumes that he raised the legal authority argument below, and raises the idea of
       “fundamental error” only in passing. Appellant’s Br. at 12-17. And Leatherman did not address the legal
       authority assertion at all in his reply brief.

       Court of Appeals of Indiana | Opinion 47A04-1711-CR-2711 | May 9, 2018                       Page 11 of 14
       a clear, blatant violation of basic and elementary principles, and that causes or

       could cause substantial harm. Id.


[24]   Here, waiver notwithstanding, we nevertheless choose to address Leatherman’s

       claim that it was fundamental error to not recognize his “legal authority”

       defense. The statute providing for the creation of needle exchange programs

       was not intended to—and does not—confer upon its participants immunity

       from prosecution for possession of paraphernalia. The goal of statutory

       interpretation is to discern and further the intent of the legislature, and the best

       evidence of legislative intent is the language of the statute itself. E.g., Doe 1 v.

       Boone Cty. Prosecutor, 85 N.E.3d 902, 908 (Ind. Ct. App. 2017). If the language

       of a statute is clear and unambiguous, we simply apply the statute’s plain and

       ordinary meaning, heeding both what the statute says and what it does not say.

       Id. As a matter of statutory interpretation, “we will not ordinarily read

       requirements into clear and unambiguous statutes that are not there.” Tibbs v.

       State, 86 N.E.3d 401, 405 (Ind. Ct. App. 2017), trans. denied.


[25]   Chapter 7.5 of Title 16, Article 41, governs the establishment of needle

       exchange programs in Indiana. Indiana Code Section 16-41-7.5-5 (2017) allows

       a county to establish a needle exchange program if:


               (A) There is an epidemic of hepatitis C or HIV.


               (B) [T]he primary mode of transmission of hepatitis C or HIV in
               the county is through intravenous drug use.



       Court of Appeals of Indiana | Opinion 47A04-1711-CR-2711 | May 9, 2018      Page 12 of 14
               (C) [A] syringe exchange program is medically appropriate as
               part of a comprehensive public health response.


       Furthermore, a “law enforcement officer may not stop, search, or seize an

       individual based on the fact the individual has attended a program under this

       chapter.” I.C. §16-41-7.5-9(a). And the “fact an individual has attended a

       program under this chapter may not be the basis, in whole or in part, for a

       determination of probable cause or reasonable suspension by a law enforcement

       officer.” I.C. §16-41-7.5-9(b).


[26]   Nowhere in the Chapter on needle exchange programs does the legislature

       evince an intent to carve out an exception to the crime of possession of

       paraphernalia under Indiana Code Section 35-48-4-8.3(b)(1). Rather, it is

       apparent that Section 16-41-7.5-9 protects the means by which individuals in

       counties with certain disease epidemics obtain hypodermic syringes. It does so

       by prohibiting mere possession of a needle obtained through the program or

       attendance at the program as bases for arrest or prosecution. Nothing in the

       language of the statute purports to condone unlawful conduct that transpires

       after an individual has obtained a needle from the exchange program. Thus,

       while Leatherman could not be prosecuted for obtaining hypodermic needles

       from a needle exchange or participating in a needle exchange program, he

       could be found guilty of possession of paraphernalia if there was evidence that

       he intended to use those syringes for unlawful ends. The State provided

       sufficient evidence of Leatherman’s intent to do just that. Therefore, we affirm

       his conviction for possession of paraphernalia, as a Class C misdemeanor.

       Court of Appeals of Indiana | Opinion 47A04-1711-CR-2711 | May 9, 2018   Page 13 of 14
                                                Conclusion
[27]   The State provided sufficient evidence to support Leatherman’s conviction of

       possession of paraphernalia, as a Class C misdemeanor, and we affirm that

       conviction. However, the State failed to provide sufficient evidence that the

       vehicle Leatherman drove had been used on multiple occasions for the delivery

       of a controlled substance, which was an essential element of the crime of

       maintaining a common nuisance. Therefore, we reverse his conviction for that

       crime.


[28]   Affirmed in part, reversed in part.


       Crone, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 47A04-1711-CR-2711 | May 9, 2018   Page 14 of 14
