Adamov v. State, 45S00-8803-CR-333

• Decision Date: 03 April 1989
• Docket Number: No. 45S00-8803-CR-333,45S00-8803-CR-333
• Citation: 536 N.E.2d 281
• Parties: Robert ADAMOV, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 281

536 N.E.2d 281

Robert ADAMOV, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 45S00-8803-CR-333.

Supreme Court of Indiana.

April 3, 1989.

Scott L. King, Gary, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Chief Justice.

A jury found Robert Adamov guilty of dealing in a narcotic drug of more than three grams, a class A felony. Ind.Code Sec. 35-48-4-1(2) (Burns 1985 Repl.). They also found he was an habitual offender. Ind.Code Sec. 35-50-2-8 (Burns 1985 Repl.). The trial court sentenced Adamov to 70 years in prison. Adamov appeals, and we affirm.

In October 1986, police received information from a confidential informant about a heroin dealer working out of a basement in East Chicago. The police entered the basement and saw Adamov with three to six other people in the room. When Adamov saw the police, he immediately rose from his chair near a coffee table and threw a plastic bag to his left.

The police recovered the bag. It contained 37 balloons, some of which had spilled from the bag when Adamov threw it. The balloons contained heroin wrapped in tin foil. Each balloon contained one-tenth to two-tenths of a gram of heroin. The total weight of the heroin was in excess of three grams. An expert on illegal narcotics activities testified that the value of the 37 balloons containing heroin was $555. The expert also testified that, in his experience, he had heard of heroin users consuming up to $250 of heroin a day.

Police arrested Adamov and found $510.20 in his possession. Police also found three $20 bills on the floor near Adamov's chair along with syringes and "cooking caps." They recovered a .22 caliber revolver from the chair in which Adamov had been seated.

After Adamov and the other suspects were arrested and removed, police arrested more than 15 additional people who knocked on the basement door and uttered a type of code. Each person who did so was arrested for visiting a common nuisance.

Adamov raises four issues in this direct appeal:

I. Whether the evidence was sufficient to convict Adamov on the element of intent to deliver;

II. Whether the trial court erred in failing to order the State to disclose the identity of its confidential informant;

III. Whether the trial court erred in failing to declare a mistrial when a witness characterized those arriving after the arrest as coming to "make their purchases"; and,

IV. Whether the evidence was sufficient evidence to find Adamov was an habitual offender?

I. Intent to Deliver

Adamov argues that the evidence failed to support a reasonable inference that he possessed the drugs "with intent to deliver," such an intent being an element of the crime under Ind.Code Sec. 35-48-4-1(2). Specifically, Adamov asserts that the quantity of drugs in his possession was not great enough to permit the necessary inference. He also argues that additional facts in evidence had no probative value and prejudiced his defense. Those facts are: Adamov was seated in the only chair in the room in front of a table with other people standing nearby; money was found in his possession ($570.20) and on the floor (three $20 bills); some syringes and "cooking caps" were on the floor; a gun was found in the chair Adamov occupied.

The statute under which Adamov was charged reads:

A person who: (2) [p]ossesses, with intent to ... deliver ... a narcotic drug, pure or adulterated, classified in schedule I ... commits dealing in ... a narcotic drug ... a class A felony if the amount of the drug involved weighs three (3) grams or more.... Ind. Code Sec. 35-48-4-1 (Emphasis added.)

In any review for sufficiency, we do not reweigh the evidence or judge the credibility of witnesses. We consider only the evidence most favorable to the verdict and any reasonable inferences which may be drawn from that evidence. When substantial evidence of probative value supports the verdict, the finding of the trier of fact will not be disturbed. Alfaro v. State (1985), Ind., 478 N.E.2d 670.

For purposes of review on this particular element, circumstantial evidence of possession with intent to deliver may support the conviction. The possession of a large amount of narcotics is circumstantial evidence of intent to deliver. The more narcotics a defendant possessed, the stronger the inference that he intended it for delivery and not for personal consumption. See Mason v. State (1989), Ind., 532 N.E.2d 1169 (review for sufficiency on element of intent to deliver in Ind.Code Sec. 35-48-4-2).

The evidence presented was sufficient to support a reasonable inference of guilt on the element of intent to deliver. The heroin in Adamov's possession was valued at $555, was in excess of three grams, and was in 37 balloons, each containing one-tenth to two-tenths of a gram. In Mason, this Court held the evidence sufficient where the defendant possessed $375 worth of a narcotic, which weighed slightly more than three grams and was contained in 30 separate packets. The Court in Mason also reviewed other circumstantial evidence, which was similar to the evidence in the case at bar. Any further evaluation of this evidence, as the appellant urges us to do, would merely be reweighing the evidence.

II. Disclosure of Confidential Informant

Adamov asserts that the trial court erred by failing to order the State to disclose the identity of its confidential informant. Adamov submits that he met this Court's test for compelling disclosure.

Prior to the raid on the basement, the informant told the police that Adamov sold him a balloon containing heroin in that basement. Adamov asserts that the confidential informant may have testified that he did not know Adamov and, therefore, misidentified Adamov as the seller. Adamov also states that the confidential informant may have testified that Adamov was not present when he purchased the balloon or that he observed Adamov as a customer rather than a seller. Adamov asserts that the confidential informant's involvement in this case, especially as an eyewitness, was far more than the involvement of the informants in the analogous cases of Brafford v. State (1987), Ind., 516 N.E.2d 45, and Lewandowski v. State (1979), 271 Ind. 4, 389 N.E.2d 706. Adamov also argues that the confidential informant was the "sole potential source of significant, exculpatory evidence." We disagree.

Initially, we note that none of the evidence presented at trial was directly gained from the confidential informant. The informant only pointed the police officers to the correct location. Once the police went to that location, they gained independent evidence to convict Adamov. None of the hypothetical testimony offered by Adamov could change the existence of the evidence presented.

The general rule in Indiana prevents disclosure of the identity of a confidential informant, unless the defense can prove the necessity of such a disclosure. Brafford, 516 N.E.2d at 48. The defense has the burden of proving that disclosure is relevant and helpful to the defense or is necessary to a fair trial. Id.

Adamov merely speculates about potential testimony from the confidential informant without offering any proof. Furthermore, his assertion that the confidential informant is the "sole potential source of significant, exculpatory evidence" is wrong. When Adamov was arrested, others were present. These people could have possibly testified to the same facts to which Adamov asserts only the confidential informant could testify. Appellant...