Clifton v. State

• Decision Date: 06 November 1986
• Docket Number: No. 585S186,585S186
• Citation: 499 N.E.2d 256
• Parties: Larry Wayne CLIFTON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 256

499 N.E.2d 256

Larry Wayne CLIFTON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 585S186.

Supreme Court of Indiana.

Nov. 6, 1986.

William F. Thoms, Jr., Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Justice.

Larry Wayne Clifton was tried by a jury and convicted of dealing in a narcotic drug, a class B felony. Ind.Code Sec. 35-48-4-1 (Burns 1985 Repl.). He was sentenced to ten years imprisonment, enhanced by thirty years based upon the jury's finding that he was an habitual offender. Ind.Code Sec. 35-50-2-8 (Burns 1985 Repl.). Clifton now appeals his conviction, raising the following issues:

1) Whether there was sufficient evidence to support the conviction, and

2) Whether the trial court erred in denying his motion for a mistrial when a State's witness mentioned the defendant's involvement in an earlier investigation.

These are the facts which support the trial court's judgment. In April 1984, acting on information received from a reliable confidential informant, Indianapolis Police Detectives Johnson, Patterson, Terrell and Blackwood went to an Indianapolis tavern known to be frequented by users and dealers of narcotics. Upon arriving, Detective Johnson saw the subject of the tip, identified in court as Clifton, standing on the passenger side of a white truck parked outside the tavern. When the officers approached the vehicle, Detective Blackwood saw appellant exchange something with the driver of the vehicle, James Kelly. Officer Terrell also witnessed this exchange.

Blackwood approached the driver's side of the vehicle and was only a foot and a half from the truck when he observed Kelly toss a tin foil "bindle" ¹ in his mouth and swallow it. Though Blackwood struggled with Kelly, he was unsuccessful in preventing the destruction of the evidence. Kelly subsequently told Blackwood that he had purchased the heroin for his girlfriend, though he disavowed this statement at trial.

Meanwhile, Detective Johnson approached the passenger side of the truck, and Clifton jumped back from the window. Seeing money in Clifton's hand, Johnson followed him to the front of the truck and saw him throw some tin foil on the ground. Johnson apprehended Clifton and took forty dollars from him.

Officer Terrell also saw defendant move his arm as though throwing something but did not see the actual object thrown. Terrell recovered a tin foil package from the street in front of defendant. Upon inspection, the package was found to contain seven smaller tin foil bindles, each containing a powder resembling heroin. All three officers testified that, in their experience, heroin was commonly packaged this way and a common heroin user would carry no more than two bindles. They estimated the cost of a bindle to be between thirty and fifty dollars. Chemical tests performed by Indianpolis Police forensic chemist Shaw revealed that the powder contained in the bindles was diluted herion.

I. Sufficiency of the Evidence

When reviewing the sufficiency of the evidence, we look only to the probative evidence supporting the verdict and the reasonable inferences therefrom to determine whether a reasonable trier of fact could conclude that the defendant was guilty beyond a reasonable doubt. If so, we will affirm the conviction. Loyd v. State (1980), 272 Ind. 404, 398 N.E.2d 1260, cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.

Appellant argues that the State failed to prove that the substance sold to Kelly was heroin. Chemical analysis of the bindle showing it to contain heroin would constitute direct proof of this element of the crime and has been found to be sufficient. Hunt v. State (1984), Ind., 459 N.E.2d 730. Of course, such proof was impossible in this case because Kelly had swallowed the evidence.

Even though the contraband is not recovered, the identity of a drug can be proven by circumstantial evidence. Warthan v. State (1982), Ind., 440 N.E.2d 657; Copeland v. State (1982), Ind.App., 430 N.E.2d 393. The type of circumstantial evidence usually contemplated is the testimony of someone experienced with the drug who identifies the substance. See e.g., Thorne v. State (1973), 260 Ind. 70, 292 N.E.2d 607. In fact, convictions supported by circumstantial evidence have relied on the testimony of past drug users who actually ingested the drug in question and identified it based on its effects. Id. To affirm a conviction based on this type of circumstantial evidence, the evidence must consist of the opinion testimony of someone sufficiently experienced with the drug. Slettvet v. State (1972), 258 Ind. 312, 280 N.E.2d 806.

This does not mean that proof by circumstantial evidence is within the exclusive realm of experienced drug users; other circumstantial evidence may be sufficient. Visual identification of the drug alone, though not per se insufficient, has never been held sufficient to support a convicition in Indiana. Copeland, 430 N.E.2d 393. In those cases finding visual identification insufficient, the unidentified substance had no distinctive...