Ferguson v. State, No. 4-1184A316

Docket NºNo. 4-1184A316
Citation481 N.E.2d 161
Case DateAugust 05, 1985
CourtCourt of Appeals of Indiana

Page 161

481 N.E.2d 161
Harry FERGUSON, Appellant (Petitioner Below),
v.
STATE of Indiana, Appellee (Respondent Below).
No. 4-1184A316.
Court of Appeals of Indiana,
Fourth District.
Aug. 5, 1985.

Page 163

Susan K. Carpenter, Public Defender, Rick Ranucci, Deputy Public Defender, Indianapolis, for appellant.

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

MILLER, Presiding Judge.

In a bench trial held March 16, 1977, the petitioner-appellant, Harry Ferguson, was convicted of possession of less than ten grams of heroin, a Class D felony. See IND.CODE Sec. 35-24.1-4.1-6 (1976) (repealed 1977; presently encoded as amended at IND.CODE Sec. 35-48-4-6 (Supp.1983)). On March 26, 1982, Ferguson's petition for permission to file a belated motion to correct error was granted pursuant to Ind. Rules of Procedure for Post-Conviction Remedies, Rule 2. From the denial of his belated motion, Ferguson brings this appeal, raising the following issues:

I. Whether the evidence was sufficient to support the conclusion that Ferguson was in constructive possession of heroin?

II. Whether Ferguson was denied effective assistance of trial counsel in violation of the sixth amendment to the United States Constitution?

We reverse on the sufficiency issue and, therefore, we need not address Ferguson's second allegation of error.

FACTS

At 8:00 on the evening of November 11, 1976, Detective James Wurz, Sergeant Thomas Casey and five other officers of the narcotics branch of the Indianapolis Police Department arrived at 2606 North College Avenue to execute a search warrant. The building at that address, known as the Sutherland Hotel, was located on the west side of the avenue facing east. The front, or eastern, portion of the building (the hotel) consisted of a lobby and five single hotel rooms on two floors, which were let at hourly rates. In the rear, or western, portion of the building was a three-room apartment (the apartment) with access through a single doorway to a basement. The search warrant to be executed that evening authorized a search of the rear apartment portion of the building and of the persons of James Williams and Curtis Burhannon, Jr., who were described in the warrant as being in control of the apartment. The search warrant was issued on the basis of information received from a reliable informant that heroin was being sold from the apartment.

Upon arrival at the Sutherland, Det. Wurz went to the southwest corner of the building, where the only entrance to the apartment was located. Sgt. Casey was stationed on the west side of the building where he could see into the apartment through a window. Det. Wurz knocked on the door several times, announcing that he was a police officer. After several knocks, Det. Wurz heard Sgt. Casey yell that someone was running through the apartment. From his vantage point, Sgt. Casey observed a man wearing a maroon long-sleeved shirt and black trousers run past the window and into the bathroom, where the subject remained for three to four seconds before running back past the window and disappearing through a doorway. Sgt. Casey ordered two officers in his charge to the front of the hotel to ensure that no one entered or left the premises.

When Det. Wurz heard Sgt. Casey's report that someone was running through the apartment, he tried to force open the door but was unable to do so. The narcotics officers required eight to ten minutes to gain entry into the apartment by battering a hole in the wall next to the door with a sledgehammer, allowing them to remove two two-by-fours that were in position to barricade the door. Immediately upon entering the apartment, Det. Wurz went through the door through which the subject in the apartment was seen running, and Wurz found that it led to a basement.

Page 164

Det. Wurz and other officers made an extensive search of the basement but found no one. The inspection of the basement, however, revealed that the only doorway into the basement was the one that led from the rear apartment, but also that a cold air duct, of the sort used with old furnaces, ran from the basement up to one of the single rooms on the first floor of the hotel. On the basement floor, one and one-half to two feet north of the opening to the cold air duct, Det. Wurz discovered a tinfoil packet containing a powdery substance that laboratory analysis later determined to be heroin. The basement floor was very dusty, but the tinfoil packet was not covered with dust. There was also dust covering the cold air duct except for a place on the side where it appeared a hand had been dragged across the duct.

Det. Wurz climbed up through the cold air duct into the first floor hotel room where it led. Finding nothing in that room, Det. Wurz spoke with a man in the hotel, then went to the second floor of the hotel and began knocking on the doors of the rooms. The appellant, Ferguson, answered the first door on which Det. Wurz knocked, wearing a maroon long-sleeved shirt and black trousers, which had dirt on them that Det. Wurz testified "matched the dirt that was on the furnace pipes where it led up, you know, through the register there." (R. 150)

Meanwhile, Sgt. Casey went to the front of the hotel to ask the officers stationed there whether anyone had left the building. He then went into the hotel lobby to ask some people sitting there whether they had seen anyone come through the lobby, and they said they had not. After checking the first floor hotel room to which the cold air duct was connected, Sgt. Casey heard Det. Wurz talking with Ferguson upstairs. Sgt. Casey went up and identified Ferguson as the man he had seen running through the rear apartment earlier that evening. Ferguson was then placed under arrest, and the room he had occupied was searched, but no contraband was discovered. Further search of the hotel revealed an occupant in the room directly across from that in which Ferguson was found and the hotel manager, Jack Williams, 1 together with two females, in another hotel room.

After Ferguson's arrest, Det. Wurz returned to the rear apartment to conduct the search authorized by the warrant. On the bathroom floor, the detective found several bits of tinfoil. On a dresser in the bedroom, he discovered a piece of a brown paper bag with writing on it that Det. Wurz described as "narcotics language." A police department handwriting analyst compared the writing on the brown paper with writings taken from Ferguson's person, but there was no evidence Ferguson had written the narcotics language on the paper bag. A shotgun, a denim jacket, some 7-Up bottles, a jar and a walkie-talkie were also discovered in the apartment. Outside a window located on the north side of the apartment, narcotics officers found a small pill, some matches and a bottle cap with burn marks on the bottom of it.

At the time of his arrest, Ferguson was advised of his rights and asked his address, which he gave as 2606 North College Avenue (the Sutherland Hotel). He also denied having been in the rear apartment portion of the hotel building that night. At trial, Ferguson again denied having been in the apartment or the basement on the night of his arrest. He stated that, on that date, he

Page 165

had been employed at the Sutherland Hotel for approximately two months as a janitor whose duties included cleaning the hotel rooms and changing the linen on the beds. The work apparently was sporadic and part-time, but when his job required him to be at the hotel overnight, he was allowed to sleep in one of the hotel rooms (usually the one in which Det. Wurz found him) as he had planned to do on the night of his arrest. Occasionally Ferguson paid rent to sleep at the hotel, but he testified that he had another residence at 2802 North Eastern Avenue and that he had given that address, in addition to the Sutherland Hotel, to Det. Wurz when questioned at the time of his arrest. Finally, Ferguson testified that Jack Williams was the hotel manager at the time of his arrest and that Mr. Williams was in control of the premises on that date.

I.

Ferguson contends the evidence was insufficient to prove beyond a reasonable doubt that he was guilty of possession of the heroin found on the basement floor.

"Our standard for reviewing sufficiency claims is firmly established; on appeal the reviewing court does not weigh the evidence or judge credibility. We consider only that evidence most favorable to the state, together with all reasonable and logical inferences to be drawn therefrom. If there is substantial evidence of probative value to support the conclusion of the trier of fact, the verdict will not be overturned. Walton v. State, (1980) Ind. [272 Ind. 398], 398 N.E.2d 667; Wofford v. State, (1979) Ind. [271 Ind. 518], 394 N.E.2d 100; Poindexter v. State, (1978) 268 Ind. 167, 374 N.E.2d 509. The triers of fact may draw reasonable inferences from facts established either by direct or circumstantial evidence, and a guilty verdict may be based solely upon circumstantial evidence. Harris v. State, (1981) Ind., 425 N.E.2d 112; Webster v. State, (1978) Ind. [270 Ind. 145], 383 N.E.2d 328."

Rowan v. State (1982), Ind., 431 N.E.2d 805, 811.

Because Ferguson was not found to have been in actual possession of any contraband, the parties agree that if the conviction is to be sustained, the evidence must be sufficient to prove Ferguson had constructive possession of the heroin. Constructive possession is proven where there is evidence to show the defendant had the intent to exercise control over the contraband and the capability to do so. E.g., Thomas v. State (1973), 260 Ind. 1, 291 N.E.2d 557; Martin v. State (1978), 175 Ind.App. 503, 372 N.E.2d 1194. Where the defendant is shown to have had exclusive control over the premises where an illegal substance is discovered, the trier of fact may infer that the defendant have the requisite intent and...

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2 practice notes
  • Lewis v. State, No. 2-385-A-65
    • United States
    • Indiana Court of Appeals of Indiana
    • September 5, 1985
    ...with the same sort of dust and grime as was found disturbed at the heroin's hidden location. See Ferguson v. State (1985), Ind.App., 481 N.E.2d 161; cf. Phillips v. State (1974), 160 Ind.App. 647, 313 N.E.2d 101 (constructive possession on the part of defendant when drugs were found in the ......
  • Ferguson v. State, No. 1285S503
    • United States
    • Indiana Supreme Court of Indiana
    • December 4, 1985
    ...and therefore did not address the second allegation of error. We grant transfer and vacate the Court of Appeals' decision reported at 481 N.E.2d 161 The facts are: At 8:00, during the evening of November 11, 1976, Detective James Wurz, Sergeant Thomas Casey and other officers of the narcoti......
2 cases
  • Lewis v. State, No. 2-385-A-65
    • United States
    • Indiana Court of Appeals of Indiana
    • September 5, 1985
    ...with the same sort of dust and grime as was found disturbed at the heroin's hidden location. See Ferguson v. State (1985), Ind.App., 481 N.E.2d 161; cf. Phillips v. State (1974), 160 Ind.App. 647, 313 N.E.2d 101 (constructive possession on the part of defendant when drugs were found in the ......
  • Ferguson v. State, No. 1285S503
    • United States
    • Indiana Supreme Court of Indiana
    • December 4, 1985
    ...and therefore did not address the second allegation of error. We grant transfer and vacate the Court of Appeals' decision reported at 481 N.E.2d 161 The facts are: At 8:00, during the evening of November 11, 1976, Detective James Wurz, Sergeant Thomas Casey and other officers of the narcoti......

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