Bailey, J.
Jerold W. Leatherman (“Leatherman”) appeals his convictions for maintaining a common nuisance, a Level 6 felony, and possession of paraphernalia, as a Class C misdemeanor.
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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 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.
… Det. Roberts stopped the vehicle … 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.
… 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.
After Ditton turned over the bag of methamphetamine to Sgt. Dodd, Det. Roberts ordered Leatherman to exit the van. Det. Roberts conducted a pat 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. …
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; and Count III, possession of paraphernalia, as a Class C misdemeanor. … Following Leatherman’s May 24 jury trial, the jury found Leatherman guilty on all three counts. …
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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.
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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 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. § 35-45-15(a)(3)(G).
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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) …
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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. … 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. …
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.
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. § 35-48-48.3(b)(1). …
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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. …
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. …
… 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. …
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). … 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. … Therefore, we affirm his conviction for possession of paraphernalia, as a Class C misdemeanor.
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Affirmed in part, reversed in part.
Crone, J., and Brown, J., concur.