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Published by the Indiana Office of Court Services

Lovitt v. State, No. 73A05-0904-CR-229, __ N.E.2d __ (Ind. Ct. App., Nov., 2009)

November 6, 2009 Filed Under: Criminal Tagged With: Appeals, P. Mathias

MATHIAS, J.
The State argues that it proved that Lovitt “maintained a common nuisance by using his vehicle to keep marijuana.” Appellee’s Br. at. 6. “It is inconsequential that the contraband was in [Lovitt’s] pocket during the transportation. The surrounding circumstances and reasonable inferences indicate that [Lovitt] maintained a common nuisance.” Id. at 8.
The word “keep” is defined as “to take in, receive, contain, hold.” Oxford English Dictionary (2nd ed. 1989). “To retain possession of. To store; put customarily[.]” American Heritage Dictionary (1978). In its brief, the State provides the following definition: “to cause to remain in a given place, situation, or condition.” Appellee’s Br. at 7 (citing Webster’s Third New International Dictionary (unabr. ed. 1993)).
The plain meaning of the word “keeping” in the context of the statute at issue implies that the controlled substance must be contained within the vehicle itself or that the vehicle is used to store the controlled substance for further manufacturing, sale, delivery or financing the delivery of that or another controlled substance. The evidence presented at trial established that Lovitt had marijuana in his pocket. The marijuana was located inside the vehicle only by virtue of the fact that Lovitt was driving the vehicle. Even under the State’s definition, this evidence does not establish that Lovitt kept the marijuana in his vehicle.
However, the broader question is the intent of the statute as a whole. Zanders v. State, 800 N.E.2d 942, 944 (Ind. Ct. App. 2003). We believe that the statute is intended to apply to an offender who uses his or her vehicle to facilitate manufacture, sale, delivery or to finance the delivery of a controlled substance, not to an offender who has personal use quantities of controlled substance(s) on his or her person or even loose in the vehicle. To hold otherwise would make every drug arrest after a traffic stop subject to an additional charge of maintaining a common nuisance. We do not believe this to be the intent of our General Assembly.
For all of these reasons, we cannot conclude that the General Assembly meant the word “keeping” to be interpreted as broadly as the State suggests, particularly in light of our well-established standard of strictly construing criminal statutes. Accordingly, we conclude that the State failed to present evidence that Lovitt used his vehicle “for unlawfully . . . keeping” marijuana. See I.C. § 35-48-4-13(b)(2)(B). We therefore reverse Lovitt’s conviction for Class D felony maintaining a common nuisance.
DARDEN, J., and ROBB, J., concur.

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