dissenting in part, concurring in part.
I would affirm the possession conviction but would reverse the maintaining a common nuisance conviction. My dissent as to the latter conviction is premised upon two grounds. First, I do not believe that the evidence is sufficient to show that the defendant had any degree of control over the building, other than over the locked room *190in which the marijuana was found. (The locked room control was necessary for the possession conviction.) I therefore believe the evidence did not prove that the defendant "maintained the building" as charged. Indiana Code 35-48-4-18 (Burns Code Ed. Supp.1988) does permit conviction for maintaining an "other place." However, the only "other place" here involved is the room in which his personal papers were found. The majority opinion specifically and clearly justifies the common nuisance conviction upon control over the room itself. In this connection it is important to note that Riding was not charged with visiting a common nuisance, le., the building, as opposed to maintaining it. See Mayotte v. State (1977) 3d Dist., 172 Ind.App. 252, 360 N.E.2d 34, trans. denied; Bezell v. State (1976) 2d Dist., 170 Ind.App. 356, 352 N.E.2d 809; Wells v. State (1976) 3d Dist., 170 Ind.App. 29, 351 N.E.2d 43.
Certain v. State (1973) 261 Ind. 101, 300 N.E.2d 345, held that "keeping a common nuisance (the equivalent of maintaining)" was not a lesser included offense of illegal possession. The analysis through which the Certain court reached its conclusion focused upon the elements of the two offenses.
Under the facts of Certain, the possession conviction is justified without regard to the premises in which that possession took place. The case did not hold that commission of a common nuisance offense involving possession by defendant would justify a separate and additional conviction for the possession itself, nor did it hold that possession could never be a lesser offense of the common nuisance violation. See Bezell, supra, 352 N.E.2d 809. This gives rise to the second, but related basis of my dissent.
Although under Blockburger v. United States (1932) 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, the act of maintaining a common nuisance would seem to be separate from the act of unlawful possession, in Hall v. State (1986) Ind., 493 N.E.2d 433, our Supreme Court held that if one act is the instrumentality by which the other act is committed, a conviction will lie for one but not both acts.
In Howard v. State (1981) 3d Dist. Ind.App., 422 N.E.2d 440, the Third District held that under the facts there present, the offenses of possession and visiting a common nuisance did not merge because visiting did not require possession and possession was not dependent upon visitation. See also Sayre v. State (1984) 3d Dist.Ind.App., 471 N.E.2d 708, cert. denied, 475 U.S. 1027, 106 S.Ct. 1226, 89 L.Ed.2d 336, (conviction for maintaining common nuisance proper when tenants, but not the defendant, were guilty of possession). Under the facts before us, and as noted by the majority, the only premises which could be maintained by the defendant was the room in which the marijuana constituting the possession charge was found. Therefore, although it may be said that possession is not a necessarily included offense of common nuisance, under the particular charge and circumstances here it is an included offense.
The presence of the "large quantity of marijuana found in the room and the presence of a scale employed in the weighing of marijuana" is essential to the majority's affirmance of the maintaining conviction. (At 189.) This very presence is the essence of the possession conviction. Therefore, as in Holl, "no additional facts were necessary to prove the perpetration of" possession charge as opposed to the maintaining a nuisance charge. 493 N.E.2d at 436.
The majority seeks to dilute the thrust of Holl by reference to four cases decided by the Supreme Court subsequent to the Hall decision. In my view that effort fails. In Jones v. State (1988) Ind., 518 N.E.2d 479, the confinement was separate and distinct from the robbery. In addition to ransack ing the residence and attempting to take valuables, the defendants ordered the vie tims to lie on the floor and bound them with duct tape. In Purter v. State (1987) Ind., 515 N.E.2d 858, the defendant was convicted of robbery, rape and confinement. Our Supreme Court noted that the victim was robbed before defendant took her upstairs and raped her and that al*191though a confinement occurred in the act of rape, "appellant confined LW. prior to the rape and continually after the rape and robbery were both complete." 515 N.E.2d at 860. Quite clearly, Chinn v. State (1987) Ind., 511 N.E.2d 1000, is inapplicable to the situation before us. Chinn involved a classic case of permissible convictions for two separate offenses, ie., conspiracy to commit murder and murder. In Chinn the conspiracy had been committed and completed before the killing took place.
The fourth case cited by the majority, McDonald v. State (1987) Ind., 511 N.E.2d 1066, does not cite or deal with the application of Hall, The case involved criminal confinement and attempted battery. The court discussed the Elmore test and although the opinion contains some language which might be construed as limiting the principle enunciated in Hall, the decision observed that the trial court had in fact applied the Hall rationale:
"Furthermore, the trial court found that the attempted battery conviction was consumed by the criminal confinement conviction, and Appellant was sentenced only on the criminal confinement convietion. We find no error here." 511 N.E. 2d at 1069.
Accordingly, under the authority of Hall v. State, supra, 493 N.E.2d 433, I would affirm the conviction for possession but would reverse the conviction for maintaining a common nuisance.